R. v. Gallaugher
The court accepted that the officer attended under a pretext but found the appellant invited the officer into his business premises for a business discussion, the officer did not conduct a search, and the marijuana was seen in plain view while the officer was lawfully present; therefore there was no s.8 violation...
Source-derived case information.
- Citation
- C28083
- Parties
- Respondent: Her Majesty the Queen; Appellant: David Gallaugher
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 25 January 1999
- Procedural Posture
- Criminal / Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Search and Seizure, Plain View, S.8 Charter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Her Majesty the Queen
Respondent
David Gallaugher
Appellant
Procedural Posture
Criminal / Appeal
Legal Issues
- 1 Whether police entry obtained by pretext violated s.8 of the Charter
- 2 Whether observations of drugs in plain view while officer was lawfully present justified subsequent search warrant and arrest
Ratio Decidendi
The court accepted that the officer attended under a pretext but found the appellant invited the officer into his business premises for a business discussion, the officer did not conduct a search, and the marijuana was seen in plain view while the officer was lawfully present; therefore there was no s.8 violation and the appeal was dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Gallaugher Collection Decisions of the Court of Appeal Date 1999-01-25 Docket numbers C28083 Judges Osborne, Coulter Arthur Anthony; Abella, Rosalie Silberman; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990125 DOCKET: C28083 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. DAVID GALLAUGHER (Appellant) BEFORE: OSBORNE, ABELLA and MOLDAVER JJ.A. COUNSEL: Ilan Newman For the appellant John North For the respondent HEARD: January 21, 1999 ENDORSEMENT [1] The trial judge found as a fact that the police officer went to the appellant’s place of business (which was also his residence) on the pretext of buying a dock as a Christmas present for his wife but for the true purpose of determining if the appellant would agree to discuss the sale of drugs with him. [2] From the appellant’s perspective, he invited the police officer into his business premises to discuss a potential dock sale. This was a business-related invitation. When the police officer was in the appellant’s premises he saw marijuana in plain view in several places in the kitchen. Later that day, the police officer obtained a search warrant. The search warrant was executed and in due course the appellant was arrested and charged with possession for the purpose of trafficking. [3] We agree with the trial judge’s conclusion that this case is different from R. v. Evans (1996), 104 C.C.C. (3d) 23 (S.C.C.) since the police officer did not enter the premises to search. In our view, there was no s. 8 violation. [4] Thus, the appeal is dismissed.