Cory J.
Cory J. ‑‑ Assuming without deciding that there was an infringement of s. 8 of the Charter in this case, we are nonetheless all of the view that the evidence obtained as a result of the search was admissible pursuant to s. 24(2). It was real evidence that existed prior to the search. It was not elicited as a result of the compelled assistance of the accused. There was no bad faith demonstrated by the police. If there was a breach of s. 8 it could not be termed either flagrant or serious. The evidence discovered in the search was essential to prove the commission of a serious offence. It follows that the Court of Appeal was correct in setting aside the acquittal by the trial judge and in directing that the evidence be admitted.
However the appellant did not have the opportunity to put forward a defence. There must therefore be a new trial with the evidence obtained in the search admitted. The order of the Court of Appeal is therefore varied to provide that a new trial is directed.
To the extent a new trial is directed, the appeal is allowed.