R. v. Brown (M.A.) et al.,

R. v. Brown (M.A.) (2008), 342 N.B.R.(2d) 41 (TD);

    342 R.N.-B.(2e) 41; 878 A.P.R. 41

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. DE.028

Renvoi temp.: [2008] N.B.R.(2d) TBEd. DE.028

Her Majesty the Queen v. Mark Anthony Brown and Robert M. Gauvreau

(W/CM/11/08; 2008 NBQB 404; 2008 NBBR 404)

Indexed As: R. v. Brown (M.A.) et al.

Répertorié: R. v. Brown (M.A.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

French, J.

December 9, 2008.

Summary:

Résumé:

The accused were charged with possession of marihuana (over three kgs) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The marihuana was found inside a duffle bag which was inside the truck of their car. The accused applied to exclude the evidence on the basis that their ss. 8, 9 and 10 Charter rights were violated. The Crown conceded that the search violated s. 8. The main issue became whether the evidence should be excluded.

The New Brunswick Court of Queen's Bench, Trial Division, excluded the evidence.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - At 2:00 a.m. the police stopped a car with an out-of-province license plate on the Trans-Canada Highway near Woodstock - Brown was driving and the car's owner, Gauvreau, was in the passenger's seat - They advised the officer that they were on their way to Nova Scotia - The officer discovered that Brown's licence was suspended and intended to give him a warning and require that Gauvreau drive - The officer directed Brown and Gauvreau to exit the car - They did - The officer then saw a can of beer on the car floor - He detained the men for unlawful possession of liquor - He searched the inside of the car and then the trunk - He did not see any liquor but believed that he smelled tobacco coming from a duffle bag - He opened the duffle bag and saw what he thought was unstamped tobacco - He closed the bag and arrested the accused - Over three kilograms of marihuana was later discovered in the duffle bag - The accused were charged with possession of marihuana for the purpose of trafficking - The accused applied to exclude the evidence (Charter, s. 24(2)) - The Crown conceded that the search violated Gauvreau's s. 8 rights as the owner of the car, but argued that Brown had no reasonable expectation of privacy - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argument - The court concluded that Gauvreau and Brown were travelling together on an extended journey and were sharing driving responsibilities - In the circumstances, there was little difference in the expectation of privacy between Gauvreau and Brown - Therefore, Brown had standing to request that the evidence be excluded - See paragraphs 35 to 39.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - At 2:00 a.m. the police stopped a car with an out-of-province license plate on the Trans-Canada Highway near Woodstock - Brown was driving and the car's owner, Gauvreau, was in the passenger's seat - The officer discovered that Brown's licence was suspended and intended to give him a warning and require that Gauvreau drive - The officer directed Brown and Gauvreau to exit the car - They did - The officer then saw a can of beer on the car floor - He detained the men for unlawful possession of liquor - He searched the inside of the car and then the trunk - He did not see any liquor but believed that he smelled tobacco coming from a duffle bag - He opened the duffle bag and saw what he thought was unstamped tobacco - He closed the bag and arrested the accused - Over three kilograms of marihuana was later discovered in the duffle bag - The accused were charged with possession of marihuana for the purpose of trafficking - The accused applied to exclude the evidence (Charter, s. 24(2)) - The Crown conceded that the search violated s. 8 - The New Brunswick Court of Queen's Bench, Trial Division, excluded the evidence - The police did not act in bad faith or good faith either - The breach was serious - There was no urgency or necessity and the officer did not have grounds for a search warrant - Admission of the evidence would bring the administration of justice into disrepute - Admission would be akin to condoning unlawful investigatory techniques - See paragraphs 1 to 34.

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - [See Civil Rights - Topic 1508 ].

Droits et libertés - Cote 1508

Biens - Principes généraux - Attente en matière de respect de la vie privée - [Voir Civil Rights - Topic 1508 ].

Droits et libertés - Cote 8368

Charte canadienne des droits et libertés - Négation des droits - Mesures de redressement - Exclusion de la preuve - [Voir Civil Rights - Topic 8368 ].

Droits et libertés - Cote 8380

Charte canadienne des droits et libertés - Négation des droits - Recours - État ou qualité pour agir - [Voir Civil Rights - Topic 8380 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 19].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 19].

R. v. Mitchell (C.) (2005), 295 N.B.R.(2d) 251; 766 A.P.R. 251 (C.A.), refd to. [para. 19].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 24].

R. v. Legere (J.J.), [2006] 300 N.B.R.(2d) 132; 782 A.P.R. 132 (T.D.), refd to. [para. 24].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 1990 CanLII 55, refd to. [para. 30].

R. v. Pellerin (L.) (1999), 209 N.B.R.(2d) 149; 535 A.P.R. 149; 1999 CanLII 13928 (C.A.), refd to. [para. 30].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137; 198 C.C.C.(3d) 363 (C.A.), refd to. [para. 32].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 36].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 36].

Counsel:

Avocats:

David M. Hitchcock and Allen Miles, for the Crown;

Howard M. Peters, for Mark Brown;

Robert A. Digdon, for Robert Gauvreau.

This application was heard at Fredericton, New Brunswick, on September 24 and 25, and November 20 and 24, 2008, before French, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following judgment on December 9, 2008.