R v Tim

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. An intervening police officer observed a small Ziploc bag containing a single yellow pill in his car. The officer believed the pill to be Gabapentin. The officer erroneously believed Gabapentin to be a controlled substance under the Controlled Drugs and Substances Act 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. The officer had been mistaken in his belief that Gabapentin is a controlled substance, however that mistaken belief was reasonable and it did not invalidate the appellant’s arrest. As the appellant's arrest was lawful, the searches incidental to arrest were also lawful. In dissent, Veldhuis J.A. would have allowed the appeal, excluded the evidence, and entered acquittals on all counts.