R. v. Davies (D.M.R.), (1998) 109 B.C.A.C. 125 (YukCA)

• Judge: Hinds, Richard and Donald, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 27, 1998
• Jurisdiction: Yukon
• Citations: (1998), 109 B.C.A.C. 125 (YukCA)

R. v. Davies (D.M.R.) (1998), 109 B.C.A.C. 125 (YukCA);

   177 W.A.C. 125

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. AU.018

Regina (respondent) v. Desmond Murray Ray Davies (appellant)

(CA 97-YU 382)

Indexed As: R. v. Davies (D.M.R.)

Yukon Court of Appeal

Hinds, Richard and Donald, JJ.A.

June 25, 1998.

Summary:

The accused appealed his conviction for possession of a break-in instrument, contrary to s. 351(1) of the Criminal Code.

The Yukon Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police, acting on suspicion only and not informing the accused of his right not to be searched, asked to look in his backpack and the accused opened it for them - The trial judge held that the police thus breached s. 8 of the Charter - Found in the backpack were bolt cutters, which police used to support a charge against the accused of possession of housebreaking instruments - The Yukon Court of Appeal held that the evidence was not discoverable without the Charter breach - The discovery involved the participation of the accused in the course of a Charter breach - The court held that the evidence was non-conscriptive - The court affirmed that the evidence should be admitted notwithstanding the breach.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 3].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 9].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 9].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 13 C.R. (5th) 34 (C.A.), consd. [para. 16].

R. v. Ferris (T.L.), 108 B.C.A.C. 244; 176 W.A.C. 244 (C.A.), refd to. [para. 17].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 3].

Authors and Works Noticed:

Cory, P., General Principles of Charter Exclusion, Paper presented at the Nation­al Criminal Law Program, 1997, Halifax, Nova Scotia, pp. 12-13 [para. 19].

Counsel:

Michael W. Cozens, for the appellant;

Judith M. Hartling, for the respondent.

This appeal was heard before Hinds, Richard and Donald, JJ.A., of the Yukon Court of Appeal at Vancouver, British Columbia on May 27, 1998. The decision of the court was delivered on June 25, 1998 by Donald, J.A.