R. v. Keshane [1996] 3 S.C.R. 413: Admissibility of evidence -- Accused charged with possession of marijuana for purpose of trafficking – Trial judge finding that warrantless search of accused's car violated s. 8 of Canadian Charter of Rights and Freedoms -- Trial judge excluding marijuana found by police from evidence -- Court of Appeal correct in directing that evidence be admitted
Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Accused charged with possession of marijuana for purpose of trafficking – Trial judge finding that warrantless search of accused's car violated s. 8 of Canadian Charter of Rights and Freedoms -- Trial judge excluding marijuana found by police from evidence -- Court of Appeal correct in directing that evidence be admitted -- Canadian Charter of Rights and Freedoms, s. 24(2).
APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 134 Sask. R. 314, 101 W.A.C. 314, allowing the Crown's appeal from the accused's acquittal on a charge of possession of marijuana for the purpose of trafficking and entering a conviction. Appeal allowed and new trial ordered.
1CORY J. -- Assuming without deciding that there was an infringement of s. 8 of the Charter in this case, we are nonetheless all of the view that the evidence obtained as a result of the search was admissible pursuant to s. 24(2). It was real evidence that existed prior to the search. It was not elicited as a result of the compelled assistance of the accused. There was no bad faith demonstrated by the police. If there was a breach of s. 8 it could not be termed either flagrant or serious. The evidence discovered in the search was essential to prove the commission of a serious offence. It follows that the Court of Appeal was correct in setting aside the acquittal by the trial judge and in directing that the evidence be admitted.