- DATE:20020412 DOCKET:C34488
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) -and- BRIAN SCHIPPANOSKI (Appellant)
BEFORE:
LASKIN, ROSENBERG and GOUDGE JJ.A.
COUNSEL:
Gregory Lafontaine
for the appellant
D. D. Graham Reynolds Q.C.
for the respondent
HEARD:
April 3, 2002
RELEASED ORALLY:
April 3, 2002
On appeal from the conviction imposed by Justice David G. Carr dated February 8, 2000, and from the sentence imposed by Justice David G. Carr dated April 19, 2000.
E N D O R S E M E N T
[1] In our view, this appeal must be allowed. The Crown properly concedes that this is an appropriate case to strike the guilty plea, which was entered in error at the conclusion of the Charter voir dire.
[2] The trial judge found that there was a breach of s.8 of the Charter but that it was not serious as it would be “Foolhardy” for any officer to allow a civilian to enter a cruiser before being searched. However, this fails to give adequate consideration to the context in which the s.8 breach occurred. The appellant, who had been a passenger in the car, was detained outside for some time in freezing weather without any lawful authority. There were no reasonable and probable grounds for the search, which makes the breach more serious. The facts indicate that the search was relatively intrusive. The touchstone of good faith is reasonable and good faith efforts to comply with the law. Those indications are largely absent in this case. The objective of the police policy was reasonable but the police officer failed to implement the policy lawfully. He could have done so by advising the appellant that, as a condition for entering the cruiser, he had to submit to a search; that he had the right to refuse, although he would then not be allowed to enter.
[3] In our view, the seriousness of the breach favours exclusion of the evidence. While the offence was serious, the actual amount of drugs involved was relatively small. We are satisfied that the third set of Collins factors do not require admission of the evidence. The evidence found during the search should have been excluded under s.24 (2) of the Charter.
[4] Accordingly, the appeal is allowed, the guilty pleas are set aside the convictions set aside and acquittal’s entered.
“Laskin J.A.”
“Rosenberg J.A.”
“Goudge J.A.”