During a search incident to arrest, Mr. Sabiston told police that he had a firearm in his backpack. The officers subsequently seized a loaded prohibited firearm. The Crown ultimately stayed the charges from Mr. Sabiston’s initial arrest and proceeded to trial on the firearms offences only.

The trial judge concluded that the arrest and subsequent search were unlawful, resulting in ss. 8 and 9 Charter violations. However, on the s. 24(2) analysis, she found that the officers would have had a legal basis to detain Mr. Sabiston for investigative purposes, and that the firearm would have been discoverable during a search incident to such detention. The discoverability of the firearm mitigated the seriousness of the breaches. The firearm was admitted into evidence and Mr. Sabiston was convicted.

A majority of the Court of Appeal for Saskatchewan held that the trial judge erred in concluding that there was a reasonable suspicion that would justify an investigative detention, which is a question of law reviewable on a standard of correctness. This error undermined the trial judge’s s. 24(2) analysis. Upon a fresh s. 24(2) analysis, the majority excluded the firearm from evidence and substituted an acquittal. In dissent, Tholl J.A. would have dismissed the appeal. He held that there was no error in the trial judge’s conclusions with respect to a reasonable suspicion for investigative detention.

The Crown appealed to the Supreme Court of Canada as of right.