R. v. Boersma, [1994] 2 S.C.R. 488

Daniel Boersma and

Ronae William Nicols Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Boersma

File No.: 23889.

1994: June 17.

Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Cultivation of marihuana ‑‑ Plants cultivated in plain sight on Crown land ‑‑ No reasonable expectation of privacy ‑‑ Accused not entitled to protection of s. 8 of Canadian Charter of Rights and Freedoms.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 8.

APPEAL from a judgment of the British Columbia Court of Appeal (1993), 1993 CanLII 1991 (BC CA), 38 B.C.A.C. 310, 62 W.A.C. 310, allowing the Crown's appeal from the acquittals of the accused on charges of cultivating marihuana and ordering a new trial. Appeal dismissed.

Peter Jensen, for the appellants.

S. David Frankel, Q.C., for the respondent.

The judgment of the Court was delivered orally by

Iacobucci J. ‑‑ This appeal comes to us as of right. The appellants were charged with the possession and cultivation of marihuana on what was Crown land. The plants were being cultivated in plain sight and were observed by police officers walking by on a dirt road. In these circumstances, we agree with Lambert J.A. of the British Columbia Court of Appeal that the appellants had no reasonable expectation of privacy with respect to the area on which marihuana was being cultivated and were thus not entitled to the protection of s. 8 of the Canadian Charter of Rights and Freedoms. Accordingly the appeal is dismissed.

Judgment accordingly.

Solicitor for the appellants: Peter Jensen, Kamloops.

Solicitor for the respondent: John C. Tait, Ottawa.