R. v. McClement, (1986) 45 Sask.R. 260 (ProvCt)

• Judge: Bellerose, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 23, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 45 Sask.R. 260 (ProvCt)

R. v. McClement (1986), 45 Sask.R. 260 (ProvCt)

MLB headnote and full text

R. v. McClement

Indexed As: R. v. McClement

Saskatchewan Provincial Court

Bellerose, P.C.J.

January 23, 1986.

Summary:

The accused was involved in a hit and run accident. A police officer arrived at the accused's apartment and after receiving no answer to his knock and observing two people sleeping in the living room and believing he had reasonable and probable grounds to arrest the accused, entered the apartment through the unlocked door. The accused was arrested in his bedroom for the hit and run accident. He was subsequently charged with possession when the officer seized a package containing drugs from the top of a table. The accused argued that the evidence should be excluded pursuant to s. 24(2) of the Charter because his rights to be secure against unreasonable seizure as guaranteed by s. 8 of the Charter were violated.

The Saskatchewan Provincial Court dismissed the charge.

Compare this decision with R. v. Landry (1986), 65 N.R. 161 (S.C.C.).

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - An accused was arrested without a warrant following a hit and run accident - A package containing drugs was seized from a table top in the accused's apartment during the arrest - The accused was charged with possession - The Saskatchewan Provincial Court dismissed the charge - The court stated that the unlawful entry by the police resulted in a prima facie unreasonable search contrary to s. 8 of the Charter - The court stated that the Crown failed to convert the unreasonable search into one of reasonableness by justification - See paragraphs 9 to 17.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was arrested without a warrant following a hit and run accident - A package containing drugs was seized from a table top in the accused's apartment following an unreasonable search - The Saskatchewan Provincial Court dismissed the charge - The court held that to admit the drugs into evidence would bring the administration of justice into disrepute - See paragraphs 18 to 25.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bringing the administration of justice into disrepute (s. 24(2)) - An accused was arrested without a warrant following a hit and run accident - A package containing drugs was seized from a table top in the accused's apartment following an unreasonable search - The Saskatchewan Provincial Court dismissed the charge - The court held that to admit the drugs into evidence would bring the administration of justice into disrepute - See paragraphs 18 to 25.

Police - Topic 3073

Powers - Arrest - Arrest without warrant of person in a dwelling house - An accused was arrested without a warrant following a hit and run accident - A package containing drugs was seized from a table top in the accused's apartment during the arrest - The accused was charged with possession - The Saskatchewan Provincial Court dismissed the charge - The court held that the police officer's entry into the accused's apartment was unauthorized in law because the entry did not fall within any of the exceptions which justify an entry in the absence of a search warrant - See paragraphs 6 to 8.

Cases Noticed:

R. v. Landry (1981), 34 O.R.(2d) 697; 128 D.L.R.(3d) 726; 63 C.C.C.(2d) 289; 24 C.R.(3d) 300, revsd. (1986), 65 N.R. 161, appld. [para. 7].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97, refd to. [para. 10].

R. v. Gibson (1983), 37 C.R.(3d) 175, refd to. [para. 12].

R. v. Heisler (1984), 57 A.R. 230; 11 C.C.C.(3d) 475, refd to. [para. 12].

R. v. Pohoretsky (1985), 32 Man.R.(2d) 291; 45 C.R.(3d) 209, refd to. [para. 12].

R. v. Dombrowski (1985), 37 Sask.R. 259; 44 C.R.(3d) 1, refd to. [para. 13].

R. v. Therens, [1985] 1 S.C.R. 613; 4 W.W.R. 286; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; 18 C.C.C. (3d) 481; 45 C.R.(3d) 97, consd. [para. 18].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8 [paras. 1, 9 to 17]; sect. 24(2) [paras. 1, 25].

Authors and Works Noticed:

Manning, Rights, Freedoms and the Courts (1983), p. 279 [para. 11].

Chasse, Ken, Search and Seizure - Can Illegal Searches be Unreasonable Under Charter, s. 8?, 13 C.R.R. 227, p. 234 [para. 15].

Counsel:

Noel Sandomirsky, for the Crown;

Dave McKay, for the accused.

This case was heard before Bellerose, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on January 23, 1986: