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| John L. Hill |
The charges against Brabant arose from a lengthy police investigation into another man suspected of trafficking methamphetamine and having illegal firearms. When police executed a search warrant at a home, both the target and Brabant were present. The target was arrested, and Brabant attempted to flee but was detained. During a search incident to his arrest, officers found 55.9 grams of methamphetamine in his jacket and a loaded, sawed-off rifle hidden under his sweater.
The trial judge in the Provincial Court of Saskatchewan ruled that Brabant’s arrest and search violated his Charter rights under ss. 8 and 9 because police only had grounds for investigative detention, not a lawful arrest under s. 495(1) of the Criminal Code. However, the judge
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Brabant received a total sentence of three years’ imprisonment, reduced by 651 days of presentence custody, leaving 444 days remaining. Sentences on all counts were concurrent, and the court imposed standard firearms prohibition, forfeiture and DNA orders.
Brabant appealed the conviction and sentence to the Court of Appeal for Saskatchewan. That court issued its decision on Oct. 10, 2025 (R. v. Brabant, 2025 SKCA 101).
In his conviction appeal, Brabant argued that the trial judge mishandled the Charter analysis under s. 24(2) by failing to consider the discoverability of the evidence as increasing the seriousness of the police breach, citing R. v. Chapman, 2020 SKCA 11. He claimed the police could have lawfully detained him instead of making an unlawful arrest.
The Court of Appeal dismissed this argument. It concluded that appellate courts should show substantial deference to a trial judge’s s. 24(2) assessment if proper factors are considered and the findings are reasonable (R. v. Côté, 2011 SCC 46; R. v. Mian, 2014 SCC 54). While Chapman acknowledges that police neglect of lawful means can increase the severity of a breach, this is not an absolute rule. The impact of discoverability varies depending on the context, including whether officers acted in good faith or faced urgent or dangerous circumstances.
Here, the trial judge determined that the police conduct was relatively minor: officers acted in good faith, the situation was dynamic and potentially hazardous, and Brabant attempted to flee, which justified his brief detention and pat-down for public safety. There was no intentional breach.
Considering these findings and relevant jurisprudence, the appellate court determined there was no reason to intervene and dismissed the appeal against the conviction.
In addressing the case, the Court of Appeal recognized that the trial judge did not explicitly discuss the Charter breaches in his sentencing reasons. However, it concluded that this omission did not compromise the fairness or outcome of the sentence.
At sentencing, the Crown sought 3.5 years, highlighting aggravating factors: Brabant’s extensive criminal record (107 prior convictions, including weapons and violence), possession of a loaded prohibited firearm, and conduct at the “truly criminal end” of the firearms offence spectrum (R. v. Nur, 2015 SCC 15). The Crown did, however, acknowledge that Brabant’s Indigenous background required some mitigation under s. 718.2(e).
The defence proposed a 16-month conditional sentence, arguing that his Indigenous circumstances and the Charter breach justified leniency.
The trial judge imposed a three-year prison sentence (before presentence credit), concluding that while Brabant’s Indigenous background and personal history lessened his moral blameworthiness, incarceration was warranted due to the severity of the offences. The judge determined that Brabant carried a loaded, prohibited firearm to safeguard a significant amount of dangerous drugs in a residential area, which posed a threat to the community and required denunciation and deterrence.
Although the court could have reduced the sentence citing Gladue principles, it recognized that no one sentencing objective trumps the others (R. v. Gladue, [1999] 1 S.C.R. 688). It falls to the sentencing judge to determine which objective warrants the most significant weight, given the circumstances of the case. The appellate court held that, given the seriousness of the offence, Brabant’s record, and the limited seriousness of the Charter breach, the sentence was appropriate and consistent with precedent.
Leave to appeal was granted, but the appeal against the sentence was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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