A Yukon Supreme Court judge has ruled that despite his rights having been breached, a gun owner conviction should be upheld.

Abran Driedger, of Grande Prairie, Alta., was convicted of the possession of a weapon at an unauthorized place and careless use of a firearm last Sept. 30.

At issue during the trial was whether his rights under the Canadian Charter of Rights and Freedoms had been breached, and whether that breach warranted throwing out the evidence against him.

The trial judge ruled that the search that led to a handgun being seized – the only evidence against Driedger – was illegal, but admitted the evidence.

In an eight-page decision, Justice Ron Veale upheld much of the ruling.

The infringement on Driedger’s rights was minor and inadvertent, and the handgun seized is reliable evidence, he ruled.

Driedger was driving on the Alaska Highway on Sept. 12, 2014 when he was stopped for a roadside check.

RCMP agents accompanied by conservation officers (CO’s) were conducting checks looking for Wildlife Act offences.

CO Jeffrey Piwek told the court he saw what he believed to be a gun case at the back of Driedger’s car.

He asked the man to look at it and found a handgun with ammunition.

Driedger told him he only had the proper paperwork for Alberta.

He was subsequently arrested and charged.

That search was unlawful because it wasn’t within Piwek’s power as a CO, the trial judge ruled.

Justice Dennis Schmidt noted that the territory’s Wildlife Act authorizes conservation officers to ask drivers to produce wildlife, a firearm, a licence, a permit or “other things requested by the officer relating to this act.”

But Piwek chose to bypass that and decided to search the car, the judge said, ruling that was a violation of Driedger’s Charter rights.

Schmidt also noted that Driedger consented to the search by unlocking the back door of his car.

That was a mistake, Veale ruled, because the trial judge didn’t apply the legal test to determine whether consent for a search had been obtained.

The test sets out three criteria.

First, people must be told they can refuse or withdraw their consent for the search at any time.

The person must be told about the consequences of consenting to the search.

The person must also be informed of his or her right to counsel to have the consequences to consenting to a search explained.

“I asked him to please open the door,” Piwek said during cross-examination.

“At no time did you seek permission from Mr. Driedger to enter the vehicle...?” Driedger’s lawyer asked him.

“No.”

Even with that mistake, Veale ruled, it would have reached the same conclusion in admitting the evidence.