Sokha Tim v. Her Majesty The Queen

(Alberta) (Criminal) (As of Right)


Constitutional law - Canadian charter (Criminal) - Criminal law - Constitutional law - Charter of Rights - Right to not be arbitrarily detained - Right to be secure against unreasonable search or seizure - Reasonable and probable grounds for arrest - Non-existent offence - Whether the police officer’s mistake of law rendered the appellant’s arrest unlawful and therefore arbitrary under s. 9 of the Charter - If so, whether the subsequent searches of the appellant were authorized by law under s. 8 of the Charter - If the searches were not authorized by law, whether the evidence should be excluded under s. 24(2) of the Charter - Charter of Rights and Freedoms, ss. 8, 9, 24(2).


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The appellant was charged with offences related to the possession of a handgun, possession of fentanyl, and breach of an undertaking. He had been involved in a single-vehicle collision, and an intervening police officer observed a small bag containing a single yellow pill in his car. The officer identified the pill as gabapentin, a substance which he erroneously believed to be a controlled substance under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and placed the appellant under arrest for possession of a controlled substance. Further searches of the appellant and his vehicle yielded fentanyl and a loaded firearm. At trial, the appellant sought exclusion of the evidence pursuant to s. 24(2) of the Charter on the basis that he had been arrested for a non-existent offence, resulting in a violation of his ss. 8 and 9 Charter rights. The trial judge concluded that the arrest and subsequent searches were lawful, and dismissed the application.

A majority of the Court of Appeal of Alberta dismissed the appellant’s appeal, holding that while the officer had been mistaken in his belief that gabapentin is a controlled substance, he had not been enforcing a non-existing law, and his belief that the appellant had been committing an offence was both subjectively and objectively reasonable. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.