Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. White, 2022 NSCA 61, October 19, 2022, the police responded to a motor vehicle accident. They received information that there was a firearm in one of the vehicles.  The accused, who was sitting in the back of the vehicle was arrested.  The vehicle was searched and firearms were found. At the trial, the trial judge concluded that the police did not have sufficient grounds to effect an arrest and excluded the firearms as evidence. The Crown appealed, arguing that the trial judge erred in her application of section 24(2) of the Charter.

The appeal was allowed.  The Nova Scotia Court of Appeal concluded that the trial judge committed two errors in her section 24(2) analysis: (1) her “analysis of the expectation of privacy interests was incomplete and constitutes an error in principle” (at paragraph 43); and (2) that she erred in her “cumulative effect analysis” (at paragraph 61).

The Court of Appeal considered section 24(2) and concluded that the evidence obtained as a result of the search should have been admitted (at paragraphs 96 and 97):

The first factor—seriousness of the infringing conduct of the police—does not require the court to disassociate itself from that conduct and tends to inclusion of the evidence.  The second—impact on Charter rights—only modestly tends to exclusion of the evidence because the impact was moderate.  Finally, society’s interest in a trial on the merits in a “guns and drugs” case with reliable evidence strongly supports admission of the evidence.  Although balancing is not a mathematical calculation, in this case the assessment of the three Grant factors plainly favours admission of the evidence.

Balancing all of the factors, the admission of the evidence would not bring the administration of justice into disrepute.