Legal Question in Criminal Law in Canada

Re: Unlawful search

The authority to exclude evidence obtained in violation of rights under the Canadian Charter of Rights and Freedoms is discretionary. The discretion may be exercised where the admission of evidence would bring the administration of justice into disrepute.

In this instance, there appears to be a pretty argument for a judge to exercise his or her discretion and exclude that evidence. The violations are that there was an arbitrary detention and an unlawful search.

An officer's reasonable belief that an offence was being committed might justify the search. However, his or her belief that you committed a weapons offence in the past, would probably not be enough to justify the belief that you might be committed one now. More problematic for the officer would be the knowledge that you were only previously suspected.

As for the one-year caution period, I am not sure that information is correct. However, someone must ask the question, if you were never found with a weapon why was there any caution posted?

Finally, the good faith of one or more officers, will probably not be available to insulate the police from wrong doing.

In the case of Clayton, (http://www.ontariocourts.on.ca/decisions/2005/march/C37990.htm) the following was said in the context of police training, but appears to be equally applicable here:

[86] The significance of systemic or institutional failures in assessing police conduct was referred to in R. v. Polashek, supra, at 201. The point is also powerfully made by Hill J. writing extra-judicially, �The Role of Fault in Section 24(2) of the Charter� in J. Cameron, ed., The Charter�s Impact on the Criminal Justice System (Toronto: Carswell, 1996) at 73:

The apparent good faith of the individual draftsperson [police officer] ought not to mask police fault where it can be established that institutionalized policy or features effectively drive a pattern of legal non-compliance. A system that routinely fails to produce the reasonably well-trained officer ought not to benefit from a good faith analysis measured against a climate of its own creation.

[87] The failure of the police force to properly train its officers to exercise their powers in a manner consistent with the Charter was made all the more damaging by the absence of effective supervision by more senior police officers.

A lawyer in your area, experienced in criminal law, should be able mount a workable defence in this case.