R. v. Lynds (C.J.) et al.,

R. v. Lynds (C.J.) (2007), 264 N.S.R.(2d) 24 (PC);

    847 A.P.R. 24

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MR.011

Her Majesty the Queen v. Christopher James Lynds and Curtis Blair Lynds

(2007 NSPC 47)

Indexed As: R. v. Lynds (C.J.) et al.

Nova Scotia Provincial Court

Beaton, P.C.J.

June 28, 2007.

Summary:

The accused were charged with offences under the Excise Act and the Revenue Act relating to the possession of unpackaged and unstamped tobacco on which tax had not been paid and with prohibited weapons offences under the Criminal Code. The accused alleged violations of their Charter rights (ss. 8, 9, 10(a) and 10(b)). A voir dire was held to deal with the Charter motions.

The Nova Scotia Provincial Court determined that there were no violations of ss. 8 and 9 of the Charter, but there was violation of the informational component of s. 10. The Charter violation, however, did not justify exclusion of evidence under s. 24.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See Civil Rights - Topic 1641.4 and second Civil Rights - Topic 1651 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The accused, a driver and passenger, were stopped for speeding by the RCMP - However, upon interviewing the accused and observing the inside of the vehicle, the RCMP officers became suspicious that the vehicle might contain contraband - One accused called his lawyer from a cell phone - A police dog was called and following a "free air scent sniff" around the outside of the vehicle indicated that there could be narcotics in the vehicle - Both accused were placed under arrest for possession of narcotics and informed of their Charter rights - The vehicle was searched incidental to the arrest - Contraband tobacco and a quantity of brass knuckles were found in the vehicle - One of the accused had a marijuana joint in his jacket - The accused were charged with tobacco and weapons offences - The accused alleged that the deployment of the drug sniffing dog constituted a warrantless search thereby violating their s. 8 Charter rights - The Nova Scotia Provincial Court rejected the accused's argument - The accused did not have an expectation of privacy extending to the air around the vehicle - The free air scent sniff around the outside of the vehicle did not constitute a warrantless search contrary to s. 8 of the Charter - See paragraphs 39 to 48.

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See Civil Rights - Topic 1641.4].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1641.4 and second Civil Rights - Topic 1651 ].

Civil Rights - Topic 1650.1

Property - Search and seizure - Warrantless search and seizure - What constitutes - [See Civil Rights - Topic 1641.4 and second Civil Rights - Topic 1651 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - The accused, a driver and passenger, were stopped for speeding by the RCMP - However, upon interviewing the accused and observing the inside of the vehicle, the RCMP officers became suspicious that the vehicle might contain contraband - One accused called his lawyer from a cell phone - A police dog was called and following a "free air scent sniff" around the outside of the vehicle indicated that there could be narcotics in the vehicle - Both accused were placed under arrest for possession of narcotics and informed of their Charter rights - The vehicle was searched incidental to the arrest - Contraband tobacco and a quantity of brass knuckles were found in the vehicle - One of the accused had a marijuana joint in his jacket - The accused were charged with tobacco and weapons offences - The accused alleged that the search of the interior of the vehicle following their arrest violated their s. 8 Charter rights - The Nova Scotia Provincial Court rejected the accused's argument, holding that it was entirely reasonable to search the vehicle to determine whether it did in fact contain the drugs that the police had reasonable and probable grounds to believe it did - Further it was also reasonable to search the accused for reasons of officer safety and the police had a reasonable prospect of securing evidence of the offence for which the accused were arrested - The court also rejected the accused's argument that the arrest was merely a "springboard" to search the vehicle incidental to the arrest - See paragraphs 50 to 53.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused, a driver and passenger, were stopped for speeding by the RCMP - However, upon interviewing the accused and observing the inside of the vehicle, the RCMP officers became suspicious that the vehicle might contain contraband - One accused called his lawyer from a cell phone - A police dog was called and indicated that there could be narcotics in the vehicle - Both accused were placed under arrest for possession of narcotics and informed of their Charter rights - The vehicle was searched incidental to the arrest - Contraband tobacco and a quantity of brass knuckles were found in the vehicle - One of the accused had a marijuana joint in his jacket - The accused were charged with tobacco and weapons offences - The accused alleged a breach of s. 9 of the Charter - The accused asserted that the detention, which was initially statutorily authorized under the Motor Vehicle Act, lost its validity when the police transformed the traffic stop into a fishing expedition about what might be contained in the vehicle - The Nova Scotia Provincial Court rejected the accused's argument, holding that the officers had articulable cause to conduct the investigation - See paragraphs 28 to 38.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused, a driver and passenger, were stopped for speeding by the RCMP - However, upon interviewing the accused and observing the inside of the vehicle, the RCMP officers became suspicious that the vehicle might contain contraband - One accused called his lawyer from a cell phone - A police dog was called and following a "free air scent sniff" around the outside of the vehicle indicated that there could be narcotics in the vehicle - Both accused were placed under arrest for possession of narcotics and informed of their Charter rights - The vehicle was searched incidental to the arrest - Contraband tobacco and a quantity of brass knuckles were found in the vehicle - One of the accused had a marijuana joint in his jacket - Neither accused made any attempt to contact counsel following arrest - The accused were charged with tobacco and weapons offences - The accused alleged a violation of ss. 10(a) and (b) of the Charter - The Nova Scotia Provincial Court agreed that there was a violation of the accused's rights at the moment of detention due to a lack of evidence as to any informational component having been provided to them - However the court refused to exclude the evidence under s. 24 of the Charter where the evidence that was uncovered following the free air scent sniff was non-conscriptive evidence that would have been found in any event and its admission would not render the trial unfair - There was no lack of good faith on the part of the officers - See paragraphs 54 to 65.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See second Civil Rights - Topic 1651 and Civil Rights - Topic 3603 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1641.4 , second Civil Rights - Topic 1651 and Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 12].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156 (C.A.), refd to. [para. 30].

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, refd to. [para. 31].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 34].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 34].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168, refd to. [para. 43].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 43].

R. v. Brown - see R. v. Kang-Brown (G.).

R. v. Taylor (J.L.) (2006), 257 Nfld. & P.E.I.R. 238; 776 A.P.R. 238; 2006 NLCA 41, refd to. [para. 43].

R. v. Gallant (J.S.) (2006), 300 N.B.R.(2d) 289; 782 A.P.R. 289; 2006 NBQB 114, refd to. [para. 43].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48 (Q.B.), refd to. [para. 43].

R. v. A.M. (2006), 209 O.A.C. 257 (C.A.), refd to. [para. 43].

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. 47].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136 (S.C.C.), refd to. [para. 48].

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. 50].

R. v. Latimer (R.W.) (1997), 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 4 C.R.(5th) 1 (S.C.C.), refd to. [para. 55].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 33 C.R.(4th) 85 (S.C.C.), refd to. [para. 55].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 55].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 57].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 59].

R. v. MacEachern (S.B.) (2007), 255 N.S.R.(2d) 180; 814 A.P.R. 180; 2007 NSCA 69, refd to. [para. 65].

Counsel:

Douglas Shatford, for the (federal) Crown;

Bruce Baxter, for the (provincial) Crown;

Robert Cragg, for the defence (Christopher Lynds);

Warren Zimmer, for the defence (Curtis Lynds).

This voir dire was heard on June 28, 2007, at Amherst, Nova Scotia, before Beaton, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on the same date. Written release of the oral decision was on September 3, 2007.