R. v. MENGESHA, 2022 ONCA 654, SEPTEMBER 20, 2022.

FACTS: The accused was convicted of drug and weapon offences. At his trial, the trial judge found that the arrest and search of the accused violated sections 8 and 10(b) of the Charter.  However, he declined to conduct a section 24(2) analysis, concluding that the evidence was “not discovered as a result of the breaches”. The Crown conceded that this was an error of law. The Court of Appeal agreed and conducted the section 24(2) analysis.

HELD: The Court of Appeal concluded that the evidence was admissible (at paragraphs 15 to 17):

These offences are so serious that, when the three factors are balanced, the evidence must be included. Exclusion would bring the administration of justice into disrepute.

The breaches were serious but moderated by the fact that they occurred during a period of two minutes between the lawful detention and lawful arrest. The impact of the breaches was minimal because there was no connection between the breach and the discovery of the evidence. The most significant issue is the importance to the administration of justice. There was a loaded firearm in a public place. The courts have referred to fentanyl as a public enemy. These facts weigh heavily on society’s interest in a trial on the merits.

The evidence is admitted under s. 24(2) and the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.