This week’s top three summaries: R v Parsley, 2026 NLCA 23: s.8 unusual #freight , R v Marjanovic, 2026 MBCA 61: #consecutive to life, R v MacKinnon, 2026 NSCA 54: #functus

R v Parsley, 2026 NLCA 23

[June 29, 2026] Charter s.8: Freight Delivery [Reasons by D.M. Boone C.J.N.L. with K.J. O’Brien and G.L.C. Noel JJ.A concurring]

AUTHOR’S NOTE: Once an accused establishes a reasonable expectation of privacy in the place or thing searched and demonstrates that the search was conducted without prior judicial authorization, the burden shifts to the Crown to establish that the search was nevertheless reasonable. Warrantless searches are presumptively unreasonable, and it is the Crown that must rebut that presumption.

Here, the accused established a reasonable expectation of privacy in the crate, a conclusion supported even on the Crown’s theory of the case. It was also undisputed that the police searched the crate without a warrant. The evidentiary burden therefore shifted to the Crown to justify the search.

The Crown attempted to do so by asserting that the crate had already been opened by someone other than the police before officers examined its contents. However, that assertion was unsupported by the evidence. No witness identified who opened the crate, when it was opened, or whether the opening occurred independently of police direction, influence, or involvement. While the police searched the crate after it was open, the critical factual premise—that someone else had lawfully opened it first—was never proven.

The Crown could not discharge its constitutional burden through speculation or argument. It was required to adduce evidence establishing that the crate had been opened independently of any police conduct. Having failed to do so, the Crown did not rebut the presumption that the warrantless search was unreasonable.

The Court therefore concluded that the Crown failed to justify the search, with the result that a breach of s. 8 of the Charter was established.

[1] A Provincial Court judge acquitted the five Respondents of drug trafficking offences under sections 5(1) and 5(2) of the Controlled Drugs and Substances Act, SC 1996, c. 19. The Crown’s case was based upon nine kilograms of cocaine that police found inside a crate shipped by a freight handler. The judge excluded the cocaine from the evidence at trial. The Crown appeals.

OVERVIEW

[2] The freight handler’s manager had alerted the police that he considered the manner that the crate was consigned to be suspicious, and that his suspicions were heightened when his staff opened the crate looking for details about the consignee. The freight handler staff resealed the crate before the manager called police.

[3] The police looked inside the crate while it sat in the freight warehouse. There was no evidence as to how the crate was reopened before the police looked inside. The police saw that it contained floor tiles that did not fill the space inside and that the crate appeared (based on a comparison of the outside and the inside dimensions) to have a false bottom. They seized the crate based partly on those observations. They obtained a warrant, removed the false bottom and discovered the cocaine. They then obtained warrants that allowed them to install tracking devices in the crate. Two of the Respondents picked up the crate and brought it to the Respondents Parsleys’ residence and opened it. The police entered and searched that residence under a general warrant and a search warrant. They arrested the Respondents.

[7] The Crown says that the judge made legal errors in her application of both section 8 and section 24(2) of the Charter and that those errors are sufficient for this Court to overturn the acquittals. The Crown also appeals the judge’s decision invalidating the tracking warrants.

[9] I would dismiss the Crown’s section 8 appeal and confirm the judge’s finding that the police violated the Respondents’ rights when they looked inside the crate and later seized it. I would allow the Crown’s section 24(2) appeal and overrule the judge’s decision to exclude the cocaine from the evidence at trial….

THE CROWN’S SECTION 8 APPEAL

The first two grounds relating to the police looking inside the crate

[14] The first two grounds raise the same pivotal question: was it the police who opened the crate before they looked inside? The parties agree that if the crate had already been reopened by the freight handler, then the police did not violate the Respondents’ section 8 rights when they looked inside it.

[15] The judge answered the question in two different ways. First, she found that she could not decide how the crate came to be open before the police looked inside and, therefore, that the Crown failed to meet its evidentiary onus. Later, without any further evidence, she found that the police were involved in opening the crate.

[18] In the First Oral Decision, the judge made only findings of fact:

Now based on this evidence, at best, it’s all very vague about how the crate was reopened. Having concluded that the crate was sealed before the police arrived, I can only speculate on how it was reopened, and I am not prepared to do so. … There is insufficient evidence to account for how or when the crate was reopened, so I find that the Crown has not met its onus. So that’s my factual findings with respect to the crate.

[19] In the Second Oral Decision, the judge first reiterated her factual findings, and then framed her analysis in the following way:

….Because I have already found that the crate should have been sealed when the police arrived, I will begin my analysis of Corporal Emberley’s reasonable grounds by looking at the information he gathered prior to approaching the crate.

[20] The judge excluded the police observations of the interior of the crate from her section 8 analysis. She then discussed the remaining grounds on which the Crown relied to base the seizure of the crate and concluded:

…without anything further, there are no reasonable grounds to believe that the illegal contents were drugs or any conclusive evidence that it contained anything illegal at all. Even if I were to consider the information gathered as the result of the illegal search of the interior of the crate, which I cannot, given my previous finding that the crate should have been sealed when the police arrived, I would not conclude that it elevates the suspicion to reasonable grounds. I, therefore, conclude that this warrantless search and seizure was not reasonable and was conducted in violation of s.8 of the Charter.

[21] The judge later rendered the Written Decision (R. v. Andreopoulos, Lewis, Parsley, Parsley, Richmond, 2021 CanLII 95067 (NL PC)), in which she confirmed her conclusion that the police conducted a search when they looked inside the crate. In these reasons, without any further evidence, she moved from a finding that the Crown had not met its onus regarding how the crate was reopened to a conclusion that the police were involved in the reopening of the crate.

The first ground of appeal: misallocation of onus

[22] Allocating onus is a question of law.

[23] The Crown says that the judge erred by misallocating the onus to the Crown to prove who opened the crate. I do not agree.

[24] The Crown relies on this excerpt from R. v. Collins, [1987] 1 S.C.R. 265, at 277:

The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. … The appellant also bears the initial burden of presenting evidence. … [T]he allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not.

[25] The Crown says that the judge should have concluded that the Respondents had to prove who opened the crate. The Crown further says that because the Respondents failed to do so, the judge ought to have concluded that their rights were not infringed.[Emphasis by PJM]

[26] I would reject that argument. The Crown’s theory of the case was that all the Respondents were the intended recipients of the crate. Therefore, they all had an expectation of privacy in it (Written Decision, at para. 2). The police admittedly looked inside the crate without a warrant. That evidence met the Respondents’ burden to demonstrate a violation of their right to privacy guaranteed by section 8.[Emphasis by PJM]

[27] The Crown’s evidentiary burden flows from the legal maxim that “he who asserts must prove”. The Crown says that, because the police did not open the crate, the police lawfully gathered information from their initial look inside the crate. It was for the Crown to prove this assertion.

[28] I would dismiss the first ground of appeal and uphold the decision of the judge, as stated at paragraph 37 of the Written Decision, that the “Crown’s onus was to prove on a balance of probabilities that the crate was opened independently of any police influence or involvement”.[Emphasis by PJM]

The second ground of appeal: the inference that the police opened the crate

[30] The Crown says that the judge made an impermissible inference that the police were involved in reopening the crate. I agree.

[34] The failure of the Crown to prove that the police were not involved in opening the crate does not mean that the opposite – that the police were involved – follows as a logical inference. A court cannot “infer that things happened or did not happen in the absence of facts from which a reasonable inference can be drawn” (R. v. Furlong, 2012 NLCA 29, at para. 27).

[35] Unreasonable findings of fact – relating to credibility, to primary or inferred “evidential” facts, or to facts in issue – are reviewable on appeal because they are ‘palpably’ or ‘clearly’ wrong” (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 56). The conclusion by the judge that the police were involved in opening the crate was a palpable error.

[36] However, this error was not overriding because it did not affect the result. The judge’s conclusion that the police violated the Respondents’ section 8 rights when they gathered information from the crate was sufficiently based on the Crown’s failure to meet its onus and did not depend on her inference that police were involved in reopening the crate.

[37] This unreasonable inference did affect the section 24(2) analysis, and I will return to it during my discussion of that issue.

The third ground of appeal: reasonable grounds for seizure

[38] The third ground of appeal impugns the judge’s assessment of whether the police seized the crate in violation of the Respondents’ section 8 rights to be free from unreasonable seizure.

[41] A warrantless seizure is, however, presumptively unreasonable. The Crown bore the onus to show that the police had reasonable grounds to believe that the crate had been used in the commission of, or would afford evidence of, an offence.

[43] The judge found, at paragraph 61 of the Written Decision, that the police honestly believed that the crate contained drugs, and therefore they had subjectively reasonable grounds to seize the crate. The Respondents do not dispute that finding.

[44] The judge found, at paragraphs 62-71, that the grounds for seizing the crate were not objectively reasonable, for the following reasons:

• there was no direct evidence that drugs were seen either by the freight handler’s staff or the police;

• there was no evidence that an odor of drugs was emanating from the crate;

• there was no verified information indicating that the crate was related in any way to criminal activity;

• most of the lead officer’s indicators came from his experience with courier packages, not freight, experience which the judge stated was not automatically, or even easily, transferrable to freight given the discrepancies in the size of the items, the delivery methods used, and the contractual relationship in the Bill of Lading;

• the police ability to examine the interior of the crate to determine that there was a false bottom came about unlawfully, and the Crown made no submissions regarding what the police could have gleaned from an inspection of the sealed crate that would support objectively reasonable grounds to believe that it contained a controlled substance.

The information gathered from the interior of the crate

[47] The police cannot rely on unlawfully obtained information to support the grounds for seizure (R. v. Zacharias, 2023 SCC 30, at paras. 40-41, 107). Consequently, the judge rightly excluded from her consideration the information that the police gained from looking inside the crate before it was seized.

The absence of indicators of criminality

[49] The judge in this case did reflect on circumstances that are usually present in similar cases but were not present in the one before her. The Crown did not present any authority that doing so amounts to an error of law.

[51] Unlike the trial judge in Kinsella, the judge did not base her decision solely on the absence of usual features associated with drug trafficking, nor elevate the presence of such features to a prerequisite for finding reasonable grounds. Had she done so, her analysis would have concluded when she noted that those features were not present. The judge clearly only considered the absence of these features as part of the totality of the circumstances. It was not an error for her to do so.

Piecemeal assessment of circumstances

[53] A judge must consider the totality of the circumstances considered by the police. However, that does not mean that the judge must merely aggregate the factors without considering each critically to determine whether it should be part of the total circumstances. This is the exercise in which the judge was engaging in paragraph 68. It was not an error to do so.

Discounting or ignoring the training and experience of a police officer

[56] The judge, at paragraph 66 of the Written Decision, said: “most of Cpl. Emberley’s indicators came from his experience with courier packages, not freight. I am not satisfied that his expertise with couriers is automatically or even easily transferrable to freight given the discrepancies in the size of the items, the delivery methods used and the contractual relationship in the Bill of Lading.”

[61] The judge did not simply discount Corporal Emberley’s experience by saying in conclusory fashion that his experience with investigating drug deliveries by courier was not transferable to freight deliveries. At paragraph 66 of her Written Decision, the differences between freight and courier shipping that she referenced were the same as those highlighted in the evidence elicited by counsel on crossexamination.

[62] It was for the judge to decide which evidence she would accept. The judge subjected Corporal Emberley’s experience to critical analysis and concluded that some of the factors that were derived from that experience were not appropriately considered in informing his grounds for seizing the crate. The Crown failed to demonstrate that the judge’s decision in that regard constituted a legal error.

Mistaken but honest belief

[63] Corporal Emberley testified that he had personally looked up the consignee on Google and found no listings for any business of that name, that he did a reverse postal code lookup and found that the sender’s postal code was not legitimate, and that he looked up the sender’s street address and found that it did not exist.

[64] The judge did not accept this evidence. The Crown says that the judge did not consider those grounds because Corporal Emberley was mistaken about some of the information he used to investigate these factors, and that the decision to reject this evidence was an error of law because, in assessing the reasonableness of grounds for seizure, the court should not exclude facts about which the police have a mistaken, but honest belief (R. v. Robinson, 2016 ONCA 402, at para. 40).

The totality of the circumstances

[67] The judge found in her Second Oral Decision (Appeal Book, Tab 5, at 797):

… when I look at Corporal Emberley’s grounds from both a subjective and objective point of view, the only conclusion that I can draw is the same conclusion Mr. Heffernan drew before calling the police; the crate was suspicious and possibly contained something illegal. However, without anything further, there are no reasonable grounds to believe that the illegal contents were drugs or any conclusive evidence that it contained anything illegal at all. Even if I were to consider the information gathered as the result of the illegal search of the interior of the crate, which I cannot, given my previous finding that the crate should have been sealed when the police arrived, I would not conclude that it elevates the suspicion to reasonable grounds. I, therefore, conclude that this warrantless search and seizure was not reasonable and was conducted in violation of s. 8 of the Charter.

[68] The existence of reasonable and probable grounds is grounded in the factual findings of the trial judge but whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20). Therefore, in considering the question whether reasonable grounds were established on the facts, “an appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge’s legal conclusion” (MacKenzie, at para. 54).

[69] I have already found that this Court should uphold the judge’s refusal to consider many of the grounds relied on by the Crown. This includes information gained by police from looking in the crate, the information police obtained by investigating the addresses of the sender and consignee of the crate, and factors derived from Corporal Emberley’s experience with drugs shipped by courier.

[70] After we excise those factors from our consideration, we are left essentially with the information provided by the freight handler to the police: that it appeared the shipper was fictitious; that the crate was supposed to contain auto parts but instead held ceramic tiles; and that the crate appeared to have a false bottom.[Emphasis by PJM]

[71] We must consider whether those grounds support a reasonable belief that the crate was being used to commit, or would provide evidence of, an offence. We do not consider the reasonableness of the grounds from the perspective of appellate judges, but “through the lens of someone who has the same experience, training, knowledge and skills as the officer who is making the observations” (R. v. Luong, 2010 BCCA 158, at para. 24). “The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience” to the officers conducting the seizure (R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 24).

[73] In the Written Decision, at paragraphs 73-78, the judge addressed Corporal Emberley’s testimony that he believed exigent circumstances required immediate seizure. He said delay could have created the potential for a tip-off by a freight handler employee, and employees could have been exposed to dangerous substances or robbery if the crate had been left in the warehouse. The judge rejected that characterization of the circumstances. She noted that the crate had sat unclaimed in the warehouse for two days prior to police involvement without incident and that it was too big and cumbersome to be easily moved. She decided that urgent action without a warrant was not required. I agree with her assessment.

[75] In R. v. Fry, 1999 CanLII 18945 (NL CA), this Court, at paragraph 50, decided that an x-ray search of a courier package was based on “no more than a suspicion or hunch that the package contained drugs” and, therefore, not on reasonable grounds. The grounds for the search on which the Crown relied in Fry, at paragraph 5, were:

1. The shipping charges had been paid for in cash;

2. A check of Alberta telephone books and “police information records” did not disclose any residential listing for [the sender];

3. The package was sent for pick-up at the courier’s office rather than for delivery to a local residential address;

4. The telephone number for the consignee was the courier’s fax number rather than the consignee’s proper telephone number;

5. A search of police computer information systems indicated that a [person with the same name as the consignee] had “a lengthy record for drug related activity”.

[76] In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, bus station security guards told police that because of a smell emanating from a rented locker, they opened a duffel bag and found marihuana inside. The security guards replaced the duffel bag in the locker and opened it again with the police present. In R. v. Washington, 2007 BCCA 540, a courier alerted police that, because of suspicions regarding the shipper and the manner of shipping, it had opened a package and found white powder that looked like cocaine. The courier resealed the package and then reopened it in the presence of the police. The Supreme Court in Buhay, at paragraph 35, and the BCCA in Washington, at paragraph 58, both decided that the information provided to police did not establish reasonable grounds for a warrantless search.

[77] I would find, like the courts in Fry, Washington, and Buhay, that the information the freight handler gave to police did not amount to objectively reasonable grounds and, therefore, the police violated the section 8 rights of the Respondents when they seized the crate. I would dismiss the Crown’s section 8 appeal.[Emphasis by PJM]

THE CROWN’S SECTION 24(2) APPEAL

The first Grant factor: the seriousness of state misconduct

[86] The judge based her findings on the first Grant factor on her inference that the police were involved in reopening the crate before they looked inside it. I have already concluded that this was an unreasonable inference.

[93] The Respondents established a violation of their section 8 rights in the search and seizure of the crate in the warehouse. But there was no evidence of serious state misconduct. This factor pulls toward excluding the cocaine from the evidence, but the pull is not overly strong.

The second Grant factor: the impact on the accused

[102] The Parsleys’ privacy interests were subject to more significant intrusion because their home was entered and searched. However, that search was conducted pursuant to judicial authorization (albeit based on unlawfully obtained information) and the judge determined, in a finding not disputed by the Parsleys on appeal, that the search of the home was not conducted in an unreasonable way (see R. v. Butler, 2025 NLCA 24, at para. 140).

[103] This factor pulls only moderately towards exclusion of the evidence in the case of the Parsleys, and only slightly in respect of the remaining Respondents.

[109] I therefore would set aside the judge’s decision to exclude the cocaine from the evidence at trial.

[132] The appeal is allowed.

R v Marjanovic, 2026 MBCA 61

[June 22, 2026] Sentencing: Can a Sentence be Consecutive to Life? [Reasons by Marianne Rivoalen C.J.M. with David J. Kroft and Anne M.E. Turner JJ.A. concurring]

AUTHOR’S NOTE: A sentence cannot be imposed consecutively to a life sentence. This is not simply a matter of logic; it is a settled principle of Canadian sentencing law. Because a life sentence has no finite duration, there is no point at which a subsequent term of imprisonment can commence. Any additional custodial sentence must therefore run concurrently with the life sentence.

In this case, the sentencing judge ordered a determinate custodial sentence to be served consecutively to a life sentence. The Court of Appeal held that such an order was unauthorized in law and could not stand.

The decision confirms that, while courts retain broad discretion in structuring multiple sentences, that discretion does not extend to imposing a consecutive sentence following a life sentence. The sentence was accordingly varied to bring it into compliance with the governing principles of sentencing law.

[1] The accused seeks leave to appeal and, if granted, appeals to vary his sentence and asks this Court to convert the consecutive sentence imposed to a concurrent sentence. The Crown agrees that the accused should not have received a consecutive sentence in this case.

[6] On March 21, 2024, the accused pled guilty to both offences before a judge of the Provincial Court (the sentencing judge). The parties jointly recommended, and the sentencing judge accepted, that the appropriate sentence was thirty-three months for the drug offence, and eighteen months concurrent for the weapons offence. The parties asked that the thirty-threemonth sentence be consecutive to the life sentence the accused is currently serving.

[7] The standard of review on sentence appeals is well-known. Appellate intervention is only justified where the sentencing judge has committed a material “error in principle that impacted the sentence or where the sentence is demonstrably unfit . . .. Errors in principle include an error of law, a failure to consider a relevant factor, or an erroneous consideration of an aggravating or mitigating factor” (R v Sheppard, 2025 SCC 29 at para 39, citing R v Friesen, 2020 SCC 9 at para 26; see R v Arac, 2025 MBCA 54 at para 6; R v Lacasse, 2015 SCC 64 at paras 41-44).

[8] While the standard of review is deferential on sentence appeals, the sentence imposed here was incorrect at law. A life sentence means what it says: imprisonment for life. While most people are released on parole at some point, it does not alter the sentence. It follows that a sentence, consecutive to life, is illogical because it does not operate until the accused dies (see R v Camphaug, 1986 CanLII 1164 (BCCA); Regina v Sinclair (1972), 6 CCC (2d) 523, 1972 CanLII 1297 (ONCA)). Because the sentencing judge imposed a sentence consecutive to the accused’s life sentence, a legal error was made and no deference is owed.

[9] In the circumstances, it is appropriate for this Court to vary the sentence to one permitted by law and acceptable to the parties. The sentence is therefore varied to be concurrent to the life sentence.

[10] It is noted that a concurrent sentence will still have the necessary deterrent impact, as it will bear upon eligibility for parole. The thirty-threemonth concurrent sentence will extend the accused’s date for eligibility to apply for parole by eleven months.

[11] The parties agree, as do I, that leave to appeal the sentence should be granted and the appeal allowed, such that the sentence is converted to being concurrent to the life sentence.

[12] Accordingly, leave to appeal the sentence is granted and the appeal is allowed. The sentence is varied to a concurrent sentence.