R. v. Curren

R. v. Curren

The warrantless arrest and initial search of the vehicle were unlawful and breached s.8; the Justice found no reasonable expectation of privacy by the passengers in the vehicle but MacIsaac had a reasonable expectation in his personal jacket which was unlawfully removed and searched, and the jacket evidence must be excluded under s.24(2); however, after excising unconstitutionally obtained material the Justice concluded there remained some evidence on which the Justice of the Peace could have issued the search warrant, so the vehicle warrant was upheld and other seized marijuana admissible.

Citation
2003 NSPC 33
Parties
Prosecution: Her Majesty the Queen; Defendant: Walter Curren; Defendant: Curtis MacIsaac
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
24 June 2003
Procedural Posture
Criminal Charter S.8 Application Re Search and Seizure / Pre Trial Charter Application / Decision on S.24(2) Admissibility
Outcome
Application allowed in part: initial warrantless arrests and vehicle search declared unlawful; jacket search unlawful and evidence from jacket excluded under s.24(2); search warrant for vehicle upheld as valid in respect of remaining information and other seized marijuana admissible.
Legal Topics
Warrantless Search, Search Incident to Arrest, Reasonable Expectation of Privacy, Passenger Standing, Search Warrant Validity, Charter S.8, Charter S.24(2), Odour as Grounds for Arrest, Exclusion of Evidence
Source Language
English
Criminal Law Constitutional Law Search and Seizure Evidence Law Controlled Drugs and Substances Act Warrantless Search Search Incident to Arrest Reasonable Expectation of Privacy +6 more

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Parties

Her Majesty the Queen

Prosecution

Walter Curren

Defendant

Curtis MacIsaac

Defendant

Procedural Posture

Criminal Charter S.8 Application Re Search and Seizure / Pre Trial Charter Application / Decision on S.24(2) Admissibility

Legal Issues

  1. 1 Whether the warrantless stop, arrest and search of the vehicle violated s.8 of the Charter
  2. 2 Whether passengers had a reasonable expectation of privacy in the vehicle
  3. 3 Whether the odour of marijuana provided reasonable and probable grounds for arrest and a search incident to arrest

Ratio Decidendi

The warrantless arrest and initial search of the vehicle were unlawful and breached s.8; the Justice found no reasonable expectation of privacy by the passengers in the vehicle but MacIsaac had a reasonable expectation in his personal jacket which was unlawfully removed and searched, and the jacket evidence must be excluded under s.24(2); however, after excising unconstitutionally obtained material the Justice concluded there remained some evidence on which the Justice of the Peace could have issued the search warrant, so the vehicle warrant was upheld and other seized marijuana admissible.

Court Disposition

Application allowed in part: initial warrantless arrests and vehicle search declared unlawful; jacket search unlawful and evidence from jacket excluded under s.24(2); search warrant for vehicle upheld as valid in respect of remaining information and other seized marijuana admissible.

Orders

  • Initial warrantless search of the vehicle and arrests declared unlawful under s.8 of the Charter.
  • Evidence consisting of 8.3 grams of marijuana seized from Curtis MacIsaac's jacket is excluded pursuant to s.24(2) of the Charter.