This week’s top three summaries: R v Munn, 2026 ABKB 253: s.8 incident to #arrest, R c Gagnon, 2026 QCCA 583: s.12 man min CP, R v Bremner, 2026 ABCA 77: #circumstantial ID

R v Munn, 2026 ABKB 353

[May 7, 2026] Charter s.8: Search Incidental to Arrest [W.N. Renke J.]

AUTHOR’S NOTE: A search incidental to arrest must be genuinely connected to a lawful purpose arising from the arrest itself. That purpose is ordinarily confined to officer or public safety, preservation of evidence, or the discovery of evidence related to the offence for which the accused was arrested. Police cannot justify a search through speculative or post hoc rationalizations untethered to those objectives.

Here, the arresting officer advanced a number of purported justifications for the search. One of them — that the search formed part of an inventory search prior to towing the vehicle — failed because it was never meaningfully developed in the evidence by the Crown. Mere reference to a possible rationale could not substitute for proof of a lawful basis for the search.

Nor could the search of the accused’s jacket be sustained on safety grounds. By that point, the accused was already secured in the rear of a police vehicle, and there was no evidentiary foundation suggesting he posed a meaningful safety risk. The trial record disclosed no history of violence and no circumstances indicating an immediate threat to officers or others.

The search was equally disconnected from the evidentiary rationale underlying search incident to arrest. The accused had been arrested for breaching an undertaking by being behind the wheel of a vehicle. There was no realistic prospect that a search of his jacket would uncover evidence capable of advancing proof of that offence.

In the absence of a valid safety concern or a reasonable evidentiary connection to the offence of arrest, the search exceeded the lawful bounds of search incident to arrest and was therefore unreasonable.

I. Facts and Issues

[1] On January 27, 2025, RCMP Cst. Usman Younas was on routine patrol in a police vehicle on Township Road 590 near Vimy, Alberta. Cst. Younas saw a vehicle driving toward his vehicle, with an illuminated “light bar” mounted on its roof. Cst. Younas considered the use of the light bar to be in contravention of the Use of Highway and Rules of the Road Regulation and the Vehicle Equipment Regulation under the Traffic Safety Act. He performed a traffic stop of the vehicle, a GMC Envoy (the Envoy) by the Old Hotel in Vimy. The stop occurred at about 9:50 pm. Cst. Ramsay, who was in a separate vehicle, also attended at the stop.

[3] Cst. Younas learned, either from Dispatch or CPIC, that Mr. Munn was bound by an undertaking dated January 20, 2025 with several conditions, including that he not be behind the wheel of a motor vehicle without a valid driver’s licence.

[4] Cst. Younas ticketed Mr. Munn for the “light bar” offence. Cst. Younas arrested Mr. Munn for failure to comply with the undertaking. He asked Mr. Munn to step out of the Envoy.

[5] When Mr. Munn got out of the Envoy, he was wearing a jacket. He took it off. Cst. Younas did not ask him to take it off. Mr. Munn tossed the jacket in the Envoy, turned around, and put his hands behind his back. Mr. Munn was then handcuffed by Cst. Younas.

[9] Mr. Munn then asked for his wallet, cellphone, and jacket, which were in the Envoy. Before Cst. Younas retrieved these items, Mallory O’Hara came out of the Hotel. Ms. O’Hara said she would take the Envoy. She didn’t say she would take the jacket. Mr. Munn said he wanted Ms. O’Hara to take the jacket.

[11] Eventually, Cst. Ramsay told Ms. O’Hara to stand back and she went back into the Hotel.

[13] Cst. Younas returned to the Envoy. He opened the vehicle door and seized the jacket. Cst. Younas’ testimony did not permit the precise sequencing of events, but he detected a container in the jacket pocket. Within the container was a crystalline substance that Cst. Younas believed was crystal meth. He saw a Ziplock bag tucked between the driver’s seat and the centre console which he suspected contained illegal drugs. He saw a white box sitting near the driver’s seat. A corner of a baggie was sticking out of the box, with white residue. Cst. Younas suspected that the white substance too was an illegal drug.

[14] Cst. Younas returned the jacket to the Envoy and did not remove the two baggies. He maintained custody of the Envoy.

[15] Cst. Younas Chartered and cautioned Mr. Munn respecting the additional charge of possession of a controlled substance.

[16] The Envoy was towed to the Detachment and Cst. Younas transported Mr. Munn to the Detachment. Later, Cst. Younas applied for a search warrant for the Envoy. Additional illegal drugs and paraphernalia were seized.

[19] Second, were Mr. Munn’s rights protected by s 8 of the Charter violated? Cst. Younas’ opening of the Envoy door, followed by his extraction of the jacket and his observation of the driver’s area of the Envoy, were searches and seizures conducted without warrant. Were these searches and seizures authorized by law? Specifically, were these searches and seizures authorized by the common law of search incident to arrest?

III. Search Incident to Arrest

[28] The entry into the Envoy and subsequent observations and the retrieval of Mr. Munn’s jacket were searches and seizures without warrant and the Crown bore the burden of establishing that these were “reasonable” searches under s 8 of the Charter: R v Santana, 2020 ONCA 365, Doherty JA at para 23.

[29] Cst. Younas referred to three bases for returning to the Envoy to retrieve the jacket. He referred to an RCMP inventory policy. He referred to obtaining Mr. Munn’s jacket for him, in case he was released. He referred to search incident to arrest as supporting the retrieval of the jacket.

[30] The inventory search justification was not developed in argument and was not heavily relied on by Cst. Younas in his testimony.

[31] Retrieval for Mr. Munn’s potential release was mentioned just once by Cst. Younas in his testimony.

[32] In his testimony, Cst. Younas relied on the common law doctrine of search incident to arrest to justify the retrieval of the jacket.

[33] Justices Moldaver and Jamal stated in R v Stairs, 2022 SCC 11 at para 35 that

[35] The common law standard for search incident to arrest is well established. As explained in Fearon, at paras. 21 and 27, it requires that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest; and (3) the search is conducted reasonably.

See also Santana at para 23; S Penny, V Rondinelli, Justice J Stribopoulos, Criminal Procedure in Canada, 3rd ed, ¶3.351.

[34] In this case, Mr. Munn was lawfully arrested and there was no suggestion that the searches and seizures involving the Envoy were not conducted reasonably. The issue is whether the searches and seizures “were truly incidental to the arrest.”[Emphasis by PJM]

[35] According to Justices Moldaver and Jamal at para 36 of Stairs,

[36] Under the second step, valid law enforcement purposes for search incident to arrest include (a) police and public safety; (b) preventing the destruction of evidence; and (c) discovering evidence that may be used at trial (Fearon, at para. 75).

[36] Search incident to arrest has subjective and objective requirements. The officer must actually believe that the search is aimed at one of these objectives. There must be some “reasonable basis” for the search promoting one of these objectives: R v Caslake, [1998] 1 SCR 51, Lamer CJC at para 20; Stairs at para 67; R v Smith, 2019 SKCA 126, Caldwell JA at para 22.

[37] The preservation or discovery must concern evidence relevant to the arrest offence. Chief Justice Lamer confirmed this in Caslake at para 22:

22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further …. [emphasis in original]

See Santana at para 28.[Emphasis by PJM]

[38] Mr. Munn was arrested for the failure to comply offence. Cst. Younas did not testify that the retrieval of the jacket was for the purpose of preserving or discovering evidence relevant to that offence. The retrieval was not justified by the need to preserve or discover arrest offence evidence. There was no reasonable basis for any belief that the jacket or items in the Envoy front seat contained evidence relevant to the failure to comply offence.[Emphasis by PJM]

[39] Cst. Younas relied on the safety purpose of search incident to arrest.

[40] It is true that Mr. Munn was wearing the jacket when Cst. Younas told him he was under arrest.

[41] But it is also true that Mr. Munn took the jacket off in front of Cst. Younas and tossed it in the Envoy. Cst. Younas did not object and did not immediately retrieve the jacket, as he might have if he considered it to have evidential or safety significance.

[43] Mr. Munn, however, was handcuffed, hands behind his back, in the back seat of the police vehicle. Cst. Younas did not testify that he was going to give the jacket to Mr. Munn as he sat in the back seat of the police vehicle. On the evidence, the police vehicle had been kept running and there was no suggestion that it was cold inside the vehicle: see Santana at para 31; Smith at paras 37, 47.

[44] Mr. Munn was not arrested for a violence offence. Mr. Munn was stopped for a traffic violation. The arrest did not emerge from violent circumstances. The evidence did not suggest that Mr. Munn had previous violence convictions or had been labelled as dangerous by Dispatch. Mr. Munn did not behave aggressively at any point during his interaction with Cst. Younas, in contrast with Ms. O’Hara: see Santana at para 41; Criminal Procedure in Canada, 3rd ed, ¶¶3.356, 3.386.[Emphasis by PJM]

[45] On the evidence, I cannot find that there was a reasonable basis for a belief that the jacket required inspection for officer or public safety. Neither was there a reasonable basis for the belief that the interior of the Envoy needed to be viewed to ensure officer safety or safety of the public: see Santana at para 38.[Emphasis by PJM]

[46] I recognize that the Envoy was not going to be driven home by Mr. Munn and was not going to be left with Ms. O’Hara. With Mr. Munn arrested, the Envoy would be towed. As I’d intimated above, it is possible that there would be an inventory search of the Envoy at some point, for the purpose, for example, of managing the liability risks of the RCMP and the impound lot. But again, argument did not explore the legal foundation for an inventory search or the nature of that search: see Santana at para 32. The fact that the Envoy would be towed did not eliminate Mr. Munn’s reasonable expectation of privacy respecting the contents of the Envoy as against the State.

[47] I therefore find that Cst. Younas did not act lawfully when he opened the Envoy door, visually examined the front seat area of the Envoy, extracted the jacket, and searched the jacket. Cst. Younas’s actions constituted an unreasonable search and seizure in violation of s 8 of the Charter.

R v Gagnon, 2026 QCCA 583

[April 29, 2026] Charter s.12: Mandatory Minimum for Making, Distributing, and Possessing CP [Reasons by Healy J.A. with Morissette and Weitzman JJ.A. concurring] 

AUTHOR’S NOTE: Applying the reasonable hypothetical articulated in R v Senneville, 2025 SCC 33, the mandatory minimum sentence for these offences was found to be grossly disproportionate and therefore contrary to s. 12 of the Charter. The Court emphasized that constitutional review of mandatory minimums requires attention not only to the offender before the court, but also to reasonably foreseeable offenders whose conduct falls at the lower end of the offence spectrum.

Using a low-gravity, reasonably foreseeable offender as the constitutional comparator, the Court concluded that a mandatory custodial term captured conduct for which a fit and proportionate sentence would be materially lower. The resulting disparity crossed the threshold into gross disproportionality, rendering the minimum sentence unconstitutional.

In place of the mandatory minimum, a conditional sentence order of 12 months was substituted as the fit and proportionate sanction in the circumstances.

[1] This is an appeal against the declaration of the Court of Quebec that the mandatory minimum sentences prescribed for making, distributing and possessing child pornography are inoperable under section 12 of the Charter and an appeal against the intermittent sentences imposed by the Court of Quebec following findings of guilt.

[14] Making and distributing are indictable offences that carry a maximum sentence of fourteen years and a minimum of one year. Possessing and accessing carry a maximum sentence of ten years and a minimum of one year, when prosecuted by indictment, and a minimum of six months on summary conviction. The respondent pleaded guilty to three charges by indictment: making, distributing and possessing child pornography. There was no count of accessing.

[15] The sentencing judge concluded that in the respondent’s case the mandatory minimum sentences would be grossly disproportionate under section 12 of the Charter and inoperative under section 24(1). On 10 January 2024 she imposed intermittent sentences of “three months” concurrent with probation for two years, including an order for 240 hours of community service.

Senneville

[63] The disposition of this appeal will be largely determined by the conclusions of the Supreme Court in Senneville:

– the mandatory minimum sentences provided for accessing and possessing are inconsistent with the guarantee against cruel and unusual punishment in section 12 of the Charter and invalid under section 52 of the Constitution Act, 1982;

– the method for reviewing the constitutional validity of a mandatory minimum sentence requires consideration in any case of reasonably foreseeable scenarios.

The result in Senneville

[64] The Supreme Court’s conclusion does not bind this Court with respect to the minimum sentences for making and distributing, but the analysis is as compelling and persuasive as for possessing and accessing. The four offences are clustered in section 163.1 of the Code and the differences among them do not diminish the applicability of the same logic and method of analysis to all. These offences are animated by the same considerations and objectives that apply with respect to all sexual offences relating to minors, as seen in the evolution of legislative amendments and in the jurisprudence of the courts before and after Friesen.

A reasonably foreseeable scenario

[66] In Senneville the majority, following John and Bertrand Marchand, adopted a reasonably foreseeable scenario that can be easily modified for application in the present appeal:

A person of eighteen with no record of any kind, makes one pornographic photograph of a minor and distributes it with pornographic text once in a message to another person. [Emphasis by PJM]

[67] No further invention is required. [Emphasis by PJM]

Sentences in the present case

[68] The sentencing judge in the present case did not consider a reasonably foreseeable scenario to determine whether the mandatory minimum sentences were grossly disproportionate. She focused on the specific circumstances of the offences and the respondent’s degree of responsibility for them.

[69] She begins her reasons by characterizing this as a case in which very serious offences were committed by a person whose responsibility was diminished by personal circumstances. She notes that the prosecution sought concurrent sentences of imprisonment of 24 months for making and distribution and 12 months for possession. The respondent submitted that a concurrent intermittent sentence of 90 days with probation and community service would be proportionate.

[70] The judge notes that the offences occurred while the respondent experienced a difficult period of stress, anxiety and isolation and engaged in undue consumption of alcohol and medication and other behaviour that was atypical for her. The judge describes the respondent’s exemplary care for her children and evidence of strong support she has received from her family.

[71] The judge refers to pre-sentence reports that confirm the respondent’s problems of consumption and her participation on internet sites that promote sexual activities. The reports suggest that her motivation in child pornography at the time of the offences was prompted by the respondent’s wish to fuel her exchanges with a co-accused and to stimulate him. The reports suggest that her communications and behaviour demonstrated a form of coping with anxiety and escapism. They note that the respondent displayed no signs of deviance relating to sexual activity with children. Following a course of therapy, the reports also suggest that her conduct was a personal aberration and that the risk of reoffending is slight. In short, the judge concludes from the various reports and other evidence that the respondent’s life before and since the offences is beyond reproach.

[72] The judge also notes, however, that the respondent was actively and repeatedly involved for over a week in the offences to which she pleaded guilty, that she sought and kept possession child pornography for some time and continued in that period to be a willing participant in the conduct with which she was charged.

[73] In her observations about a proportionate sentence the judge takes note of the shift in Canadian law towards more severe sanctions for sexual offences against children and the emphasis that must be placed on the objectives of denunciation and deterrence. The judge notes, however, that these retributive elements in the determination of a proportionate sentence do not exclude the consideration of other objectives in sentencing, most notably restraint and the restorative objectives of rehabilitation and reintegration in the community.

[81] I remind myself that the validity of the sentences can be assessed with reference to the sentences imposed in this case or with reference to a reasonably foreseeable scenario. A conclusion of invalidity on either ground will suffice to declare the sentences invalid under section 52 of the Constitution Act, 1982.

[82] A mandatory minimum sentence applies without regard to facts and presupposes that Parliament can fix a minimum that is invariably proportionate. It diminishes the scope for discretionary decision-making and eliminates, below the mandatory minimum, the possibility of a proportionate sentence determined with due regard to valid objectives. A mandatory minimum sentence is inconsistent with principles of individualized sentencing.

[84] I agree that the minimum sentences for making and distributing child pornography are inconsistent with section 12. The specific justification for this conclusion is that in the application of the reasonably foreseeable scenario adapted in these reasons a mandatory minimum sentence of one year would be disproportionately severe, irrespective of the sentence that the respondent deserves.

[88] The invalidity of the minimum sentences obliges this Court to impose sentences for making, distributing and possessing child pornography that are proportionate and fit for these offences, committed by this offender, causing this harm in this community.

[96] The jurisprudence can be summarised:

In the absence of a valid minimum a sentence for every offence of child pornography must be determined in accordance with principles in the Criminal Code and relevant jurisprudence.

All sentencing options are open.

Every sentence must conform to the principle of proportionality and reflect due consideration of all relevant objectives.

In all sentences for child pornography priority must be given to the retributive objectives of denunciation and deterrence.

The priority of denunciation and deterrence does not exclude due consideration of restorative objectives, notably rehabilitation and reintegration of the offender in the community.

A deprivation of liberty is the norm to underscore the priority of denunciation and deterrence.

The norm is a term of continuous incarceration in a correctional institution but it is not absolute.

Where restorative objectives justify a deviation from the norm, a deprivation of liberty in another form may be imposed if sufficient and compelling reasons are provided.

Any deviation from a deprivation of liberty is rare and must be justified by sufficient and compelling reasons.

[97] The offences committed by the respondent, although inherently serious, are not among those of the greatest gravity. There are points of comparison with the reasonably foreseeable scenario adopted for present purposes. The volume of material was relatively minor. The production involved instances of lifting from materials compiled by others and the range of distribution was narrow. The offences were sustained over several days and then stopped.

[99] I agree with the sentencing judge that this case calls for a loss of liberty to express denunciation and deterrence. I also agree that this case calls for an exemplary sanction without forsaking other objectives in the determination of a proportionate sentence. The respondent was actively involved in the commission of all three offences. She was fully aware of what she was doing and intended to do it, although she later expressed her regret and remorse. The material consisted of about twenty photographs derived from internet sites and text of her own making. She distributed that material to one person over a period of about ten days. These factors remove the respondent’s case from the range of the most serious cases of child pornography but only a more severe sentence will meet the requirements of proportionality in this instance.

[100] There is no indication that the respondent poses a present or future danger to the community; there is strong evidence of rehabilitation and no risk of recidivism. Specific deterrence is not a relevant objective. The respondent has demonstrated a genuine awareness of her responsibility and has acknowledged the harm in her conduct. The evidence before the Court provides a convincing reason to conclude that there is no compelling purpose to sentencing the respondent to a term of continuous imprisonment in a correctional institution. A conditional sentence is consistent with the purposes and principles of sentencing. It will emphasise the retributive objectives of denunciation and deterrence with restraint and maximise the restorative objectives of rehabilitation. The terms of a conditional sentence can be refined to ensure maximal conformity of these objectives within a proportionate sanction.

[104] ALLOW the appeal against the concurrent intermittent sentences of three months imposed by the Court of Quebec;

[105] QUASH the concurrent intermittent sentences of three months imposed by the Court of Quebec;

[106] SUBSTITUTE concurrent conditional sentences of 12 months on the counts of making and distributing child pornography, and nine months on the count of possessing child pornography, which take into account the time already served under the sentences imposed by the Court of Quebec, and subject to the following conditions: