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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure

Thursday, June 29, 2017 @ 8:30 AM  

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Appeal by the accused, Driedger, from a summary conviction appeal court decision affirming his convictions for firearm offences. The accused was stopped by police conducting a roadblock pursuant to the Wildlife Act. A conservation officer assisting police asked the accused if he possessed firearms. The accused indicated the presence of firearms in the trailer. The officer observed a gun case on the floor behind the driver's seat and asked the accused to unlock the back door. The accused complied. The conservation officer took out the gun case, opened it, and found a handgun and ammunition. The accused was arrested, charged and released at the roadside. At trial, the accused sought the exclusion of the handgun evidence on the basis of an unreasonable search. The trial judge found that although the conservation officer exceeded his statutory authority, the Charter breach was not sufficiently serious to justify exclusion of the evidence. The accused was convicted for breaching the firearm storage regulations, and possession of a restricted firearm in an unauthorized place. A summary conviction appeal court affirmed the convictions. The accused appealed on the basis the evidence should have been excluded pursuant to s. 24(2) of the Charter with an acquittal entered.

HELD: Appeal dismissed. The summary conviction appeal judge correctly found that the search of the accused's vehicle was unlawful, as there was no valid consent to a search involving reaching into the truck and removing and opening the gun case. The judge erred in minimizing the seriousness of the breach based on the availability of a warrantless search power in s. 142 of the Wildlife Act. This was not a case in which exigent circumstances supported reliance on s. 142 to reduce the seriousness of the Charter-infringing conduct. Nonetheless, having regard to the Grant factors, there was no basis for exclusion of the evidence pursuant to s. 24(2) of the Charter. The conservation officer and police acted in good faith in their belief they had a right to seize the accused's handgun. They did not exhibit a reckless disregard for his Charter rights. The breach was not intrusive, was of short duration, and involved an item in plain view. Balancing the relevant factors, including the strong interest in safe storage of weapons transported in vehicles, the evidence was ruled admissible.

R. v. Driedger, [2017] Y.J. No. 360, Yukon Territory Court of Appeal, R.J. Bauman C.J.B.C., I.T. Donald and Tulloch JJ.A., June 20, 2017. Digest No. TLD-June262017007