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R v Y (2005)

  • Clayton Rice, Q.C.

The defendant was charged with possession of a firearm and ammunition without a licence under s 95 of the Criminal Code and other weapons offences. He was driving a rented sport utility vehicle in a Calgary neighbourhood at night when stopped by the police for a motor vehicle infraction. A police officer saw a shotgun shell on the floor of the driver’s side when he handed the defendant’s operator’s licence back to him. The vehicle was searched without a warrant and a shotgun was found in a Nike bag in the cargo area. The police also found ammunition and two knives in the vehicle. Mr Rice brought a motion to have the shotgun, ammunition and knives excluded from evidence under ss 8 and 24(2) of the Charter of Rights. The trial judge held that the presence of the shotgun shell in plain view gave the police probable cause to apply for a telewarrant which they did not do. The warrantless search of the vehicle therefore breached the defendant’s reasonable expectation of privacy. The trial judge granted the motion, the prosecution’s case collapsed and Mr Rice’s client was acquitted of all charges.

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