Ontario Criminal

Charter of Rights

Enforcement of rights

Police were negligent in not waiting to obtain warrant before search

Police officers suspected that accused was casing gas stations for robbery and wanted to detain him for investigative purposes. When police identified themselves to accused he ran away. Police officer searched car accused left behind and found handgun and Taser. Accused was charged with several firearms offences. Trial judge found that officers had reasonable grounds to detain accused and reasonable grounds to conduct search of car. Trial judge also accepted that accused had abandoned his vehicle within meaning of s. 221(1) of Highway Traffic Act (Ont.) (“HTA”) and that police therefore had authority to conduct inventory search of vehicle. Trial judge found that in event he was wrong about constitutionality of search that gun and Taser should nevertheless not be excluded under s. 24(2) of Canadian Charter of Rights and Freedoms. Accused was convicted. Accused appealed. Appeal allowed; accused acquitted. Trial judge’s s. 24(2) analysis was flawed and not entitled to deference. Admission of evidence would bring administration of justice into disrepute. There was no evidence of wilful misconduct on part of police officers, but they were negligent in not waiting to obtain warrant before beginning search. Police conduct could not be categorized as inadvertent and it fell closer to more serious end of spectrum. There was no common law authority for search, nor any basis for finding vehicle to have been abandoned within meaning of s. 222(1) of HTA. Taser and handgun were reliable and objective pieces of evidence and Crown’s case could not succeed if they were excluded.

R. v. Dunkley (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C59524) Decision at 111 W.C.B. (2d) 822 was reversed. 131 W.C.B. (2d) 471.

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