R v Schubert

Karl Alton Schubert is facing trial for aggravated burglary and possession of a firearm without lawful purpose. Schubert challenges the admissibility of evidence obtained from a police search of a car associated with him, in which a military-style semi-automatic rifle was found. The Crown had applied for an order that the evidence obtained from the search be admissible at Schubert's trial, which Judge D J McDonald had granted. Schubert now appeals against the decision of Judge McDonald. The appeal raises the issues of the lawfulness and reasonableness of the search, and whether the evidence should be admitted under the Shaheed balancing test.

The Court found that the search was unlawful because the police did not have a lawful authority to undertake it. The urgency of the situation and the potential danger were factors which weighed for the reasonableness of the search, but the Court found that they were insufficient to render the unlawful search reasonable. The Court found that the search was unreasonable, as the existence of an emergency or urgency was insufficient to render reasonable an unlawful search. The Court concluded that the evidence of the finding of the firearm in the motor vehicle as a result of the police search is inadmissible at trial. The appeal is allowed.

The Court ordered that the judgment not be published in news media or on the internet or other publicly accessible database until the final disposition of the trial, but permitted publication in a law report or law digest.