R. v. Keshane, [1996] 3 S.C.R. 413

Bernadette Mae Keshane Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Keshane

File No.: 25031.

1996: October 11.

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).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 1995 CanLII 4054 (SK CA), 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.

Bruce P. Ritter, for the appellant.

Douglas G. Curliss, for the respondent.

//Cory J.//

The judgment of the Court was delivered orally by

[1] Cory 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.

[2] However the appellant did not have the opportunity to put forward a defence. There must therefore be a new trial with the evidence obtained in the search admitted. The order of the Court of Appeal is therefore varied to provide that a new trial is directed.

[3] To the extent a new trial is directed, the appeal is allowed.

Judgment accordingly.

Solicitors for the appellant: Bright, Kolenick & Ritter, Yorkton.

Solicitor for the respondent: George Thomson, Ottawa.