R. v. Herman

R. v. Herman

The police conducted warrantless, intrusive searches and continued processing of the accused's checked suitcase beyond CATSA's security search; the conduct was negligent and at least reckless given officers' awareness a warrant was required and lack of exigency; the Grant/Harrison s.24(2) balancing favors exclusion...

Source-derived case information.

Citation
2017 BCSC 2097
Parties
Crown: Regina; Accused: David Edward Herman
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
20 November 2017
Procedural Posture
Criminal Charter Application / Pre Trial Voir Dire and S.24(2) Hearing
Outcome
s.24(2) application granted; evidence excluded
Legal Topics
Section 8 Charter, Section 24(2) Charter, Warrantless Searches, Expectation of Privacy in Checked Luggage, Plain View Doctrine, CATSA Procedures
Source Language
english
Canadian Charter Criminal Law Evidence Search and Seizure Aviation Security Law Section 8 Charter Section 24(2) Charter Warrantless Searches +3 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Regina

Crown

David Edward Herman

Accused

Procedural Posture

Criminal Charter Application / Pre Trial Voir Dire and S.24(2) Hearing

Legal Issues

  1. 1 Whether police conducted a warrantless search in breach of s.8 Charter rights
  2. 2 Whether evidence obtained by warrantless searches should be excluded under s.24(2) of the Charter
  3. 3 Whether CATSA's security search and operational realities attenuated the breach

Ratio Decidendi

The police conducted warrantless, intrusive searches and continued processing of the accused's checked suitcase beyond CATSA's security search; the conduct was negligent and at least reckless given officers' awareness a warrant was required and lack of exigency; the Grant/Harrison s.24(2) balancing favors exclusion because the seriousness of the state conduct and substantial impact on privacy outweigh the societal interest in admitting reliable evidence in this case.

Court Disposition

s.24(2) application granted; evidence excluded

Orders

  • Exclude from trial the evidence obtained from warrantless searches of the first checked suitcase and its contents, including marihuana and hashish; such evidence is inadmissible at trial.