R. v. Christie (J.M.),

R. v. Christie (J.M.) (2014), 415 N.B.R.(2d) 92 (CA);

    415 R.N.-B.(2e) 92; 1076 A.P.R. 92

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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: [2014] N.B.R.(2d) TBEd. FE.002

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.002

Justin Mansour Christie (appellant) v. Her Majesty the Queen (respondent)

(49-13-CA; 2013 NBCA 64)

Indexed As: R. v. Christie (J.M.)

Répertorié: R. v. Christie (J.M.)

New Brunswick Court of Appeal

Deschênes, Richard and Bell, JJ.A.

January 30, 2014.

Summary:

Résumé:

The accused appealed his convictions for simple possession of cannabis and possession of an ounce of cocaine for the purpose of trafficking, for which he was sentenced to a 17-month prison term.

The New Brunswick Court of Appeal allowed the appeal and entered an acquittal.

Editor's Note: for a decision with respect to the accused's application for release pending the appeal, see [2013] N.B.R.(2d) Uned. 62 (C.A.).

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - At 12:05 a.m. Constable Smiley was patrolling alone in a marked police cruiser - He observed a vehicle travelling in front of him with an expired registration sticker and conducted a traffic stop - The driver (the accused) was unable to produce a driver's license and had no current proof of insurance or registration - While speaking to the accused through the open window on the driver's door, Constable Smiley observed an open bottle of wine on the floor behind the driver's seat as well as a large buck hunting knife in the pocket of the driver's door - Constable Smiley placed the accused under investigative detention in order to search the vehicle for liquor and weapons - Constable Smiley called for a second unit - The accused was handcuffed and placed in the rear seat of the police vehicle - Constable Smiley found a backpack on the front passenger seat and located various quantities of cocaine including a rock of some 28 grams, as well as marihuana, baggies and weigh scales - He also found two cellular telephones in the center console and an additional quantity of marihuana under the driver's seat - The accused was charged with simple possession of cannabis and possession of an ounce of cocaine for the purpose of trafficking - The trial judge rejected the accused's assertion that his s. 8 right to be free of unreasonable search and seizure had been violated - The New Brunswick Court of Appeal allowed the accused's appeal - Constable Smiley did not have the power, under the common law power to search incident to investigative detention, to search the vehicle or duffle bag for evidence related to the infractions under the Liquor Control Act - Further, the Crown did not satisfy the onus of establishing the requirements of s. 135 of the Provincial Offences Procedure Act (search without warrant of a vehicle) and the search of the duffle bag was unreasonable - See paragraphs 24 to 52.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - At 12:05 a.m. Constable Smiley was patrolling alone in a marked police cruiser - He observed a vehicle travelling in front of him with an expired registration sticker and conducted a traffic stop - The driver (the accused) was unable to produce a driver's license and had no current proof of insurance or registration - While speaking to the accused through the open window on the driver's door, Constable Smiley observed an open bottle of wine on the floor behind the driver's seat as well as a large buck hunting knife in the pocket of the driver's door - Constable Smiley placed the accused under investigative detention in order to search the vehicle for liquor and weapons - Constable Smiley called for a second unit - The accused was handcuffed and placed in the rear seat of the police vehicle - Constable Smiley found a backpack on the front passenger seat and located various quantities of cocaine including a rock of some 28 grams, as well as marihuana, baggies and weigh scales - He also found two cellular telephones in the center console and an additional quantity of marihuana under the driver's seat - The accused was charged with simple possession of cannabis and possession of an ounce of cocaine for the purpose of trafficking - The trial judge rejected the accused's assertion that his s. 9 right to be free of arbitrary detention had been violated - The New Brunswick Court of Appeal allowed the accused's appeal - In order for a detention to be lawful, it had to be "reasonably necessary" - The necessity component had not been met - Constable Smiley could have addressed his safety concerns in a way that would have fallen well short of the drastic detention imposed upon the accused - Constable Smiley's action in detaining the accused in handcuffs in the rear of the police vehicle was not reasonably necessary, and the trial judge did not properly apply the "necessity" test in concluding otherwise - See paragraphs 9 to 23.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - At 12:05 a.m. Constable Smiley was patrolling alone in a marked police cruiser - He observed a vehicle travelling in front of him with an expired registration sticker and conducted a traffic stop - The driver (the accused) was unable to produce a driver's license and had no current proof of insurance or registration - While speaking to the accused through the open window on the driver's door, Constable Smiley observed an open bottle of wine on the floor behind the driver's seat as well as a large buck hunting knife in the pocket of the driver's door - Constable Smiley placed the accused under investigative detention in order to search the vehicle for liquor and weapons - Constable Smiley called for a second unit - The accused was handcuffed and placed in the rear seat of the police vehicle - Constable Smiley found a backpack on the front passenger seat and located various quantities of cocaine including a rock of some 28 grams, as well as marihuana, baggies and weigh scales - He also found two cellular telephones in the center console and an additional quantity of marihuana under the driver's seat - The accused was charged with simple possession of cannabis and possession of an ounce of cocaine for the purpose of trafficking - The New Brunswick Court of Appeal found violations of ss. 8 and 9 of the Charter and excluded all evidence seized - Constable Smiley's conduct was serious - He acted with disregard for the accused's Charter rights - The impact of the Charter-infringing conduct was significant - The exclusion of the evidence spelled the collapse of the prosecution's case - A consideration of all the circumstances led the court to the conclusion that admitting the evidence would bring the administration of justice into disrepute - See paragraphs 53 to 59.

Droits et libertés - Cote 1646

Biens - Fouille, perquisition et saisie - Définition de fouille, perquisition et saisie déraisonnables - [Voir Civil Rights - Topic 1646 ].

Droits et libertés - Cote 1651

Biens - Fouille, perquisition et saisie - Fouille, perquisition et saisie sans mandat - Véhicules à moteur - [Voir Civil Rights - Topic 1651 ].

Droits et libertés - Cote 3603

Détention et emprisonnement - Détention - En quoi consiste la détention arbitraire - [Voir Civil Rights - Topic 3603 ].

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 ].

Cases Noticed:

R. v. Aucoin (B.D.), [2012] 3 S.C.R. 408; 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, consd. [para. 1].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, consd. [para. 1].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 1].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 7].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 15].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 25].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 30].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 31].

R. v. Mitchell (C.) (2005), 295 N.B.R.(2d) 251; 766 A.P.R. 251; 2005 NBCA 104, refd to. [para. 31].

R. v. Tontarelli (R.) (2009), 348 N.B.R.(2d) 41; 897 A.P.R. 41; 2009 NBCA 52, refd to. [para. 31].

R. v. Plummer (A.) (2011), 279 O.A.C. 359; 2011 ONCA 350, refd to. [para. 33].

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. 57].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 57].

Statutes Noticed:

Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, sect. 135 [para. 29].

Counsel:

Avocats:

Peter A. Corey, for the appellant;

Christopher R. Lavigne, for the respondent.

This appeal was heard on October 15 and 16, 2013, by Deschênes, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. Judgment was rendered on November 13, 2013. The following written reasons for judgment of the Court of Appeal were delivered by Deschênes, J.A., in both official languages, on January 30, 2014.