The Supreme Court of Canada on Friday restored the conviction of Stuart Sabiston on firearms offenses originating from his 2019 arrest. The court upheld a trial judge ruling that allowed evidence discovered from an unlawful arrest to be admissible.

At trial, the Crown relied on a loaded sawed-off shotgun as evidence to charge Sabiston with multiple firearm offenses. Sabiston contended that the evidence was inadmissible because it was discovered upon a search “incident to an unlawful detention,” violating his rights against unreasonable search and seizure (Article 8), and arbitrary detention (Article 9) under the Canadian Charter of Rights and Freedom.

The Supreme Court’s judgment on October 11 reinstated Sabiston’s conviction, agreeing with Justice Jerome Tholl’s dissent from the Saskatchewan Court of Appeal. Justice Tholl acknowledged that police violated Sabiston’s Charter rights but argued that the police had valid reasons to suspect him. Sabiston’s gang ties, the fact that he was wearing a bullet-proof vest in a high-crime area, and the officer’s experience suggested the vest might have been stolen. He also agreed with the trial judge that the shotgun would have been discovered through lawful means if the officers had chosen an investigatory detention. This mitigated the impact of the breaches, which were flawed but not reckless or in bad faith in the first place. Tholl concluded, and the Supreme Court agreed, that the trial judge properly balanced the seriousness of the breaches against society’s interest in adjudicating the charges, warranting the inclusion of the evidence.

Writing the only dissenting opinion at the Supreme Court, Justice Mary Moreau stated that she was in “substantial agreement” with the majority of the appellate court. She argued that the right against arbitrary detention imposes a high standard on the authorities to exercise their power of detention, which requires a “clear nexus between the individual to be detained and a recent or ongoing criminal offense.” The lack of clear nexus, in this case, indicated that the firearm evidence would not have been discoverable without unlawful detention. Even though firearm-related offenses are serious, it was not sufficient to outweigh the serious Charter breaches that “profoundly impacted” Sabiston. Accordingly, Moreau opined that the majority at the appellate court did not err in applying section 24(2) of the Charter and excluding the shotgun into evidence against Sabiston.

In 2019, two police officers arrested Sabiston for possession of a stolen bullet-proof vest. During the arrest, he disclosed that he had a loaded sawed-off shotgun in his backpack. Police searched him, found the firearm, and charged him with multiple firearms offenses. Since there was no report of the vest being stolen and it could easily be bought online, the trial judge decided the officers didn’t have a good reason to suspect Sabiston. The Crown later dropped the stolen property charge and only pursued the firearm charges.

The case was remanded to the appellate court to address the sentence appeal.