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| Patrick J Ducharme |
…The trial Judge noted that “the connection of the search to the arrest is not disputed” (para. 27). Notwithstanding Berger J.A.’s view to the contrary, we conclude that the trial Judge made no error in concluding that the search was properly incidental to arrest, and did not violate s. 8 of the Charter.
Section 24(2)
Since we have found no Charter violation, it is not necessary to consider whether the evidence should be admitted under s. 24(2). However, were it necessary to consider this issue, we would have rejected this ground of appeal.
The trial Judge concluded that even if a breach of the Charter had been found, the evidence obtained by the search would be admissible under s. 24(2) of the Charter:
…even if I had found a violation of s. 8, I would have admitted the evidence under s. 24(2) of the Charter. The admission of the real evidence obtained by the search would not render the trial unfair. That is conceded. I do not view the Charter breach as serious. The officer, in my view, acted in good faith. The accused had a reduced privacy interest in the vehicle, both because a vehicle was searched as opposed to a home, and because the accused was not the owner of the vehicle. [para. 28]
On appeal, Berger J.A., dissenting, would have excluded the evidence.
The unanimous court found no error in the trial Judge’s reasoning or conclusions on this point. Although her decision predated the Supreme Court of Canada’s decision in Grant1 she considered and weighed the relevant factors. As the majority stated in Grant, at para. 86, “[w]here the trial Judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination”
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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