R. v. Arsenault (E.J.), (1997) 190 N.B.R.(2d) 118 (CA)

• Judge: Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 26, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 190 N.B.R.(2d) 118 (CA)

R. v. Arsenault (E.J.) (1997), 190 N.B.R.(2d) 118 (CA);

    190 R.N.-B.(2e) 118; 484 A.P.R. 118

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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: [1997] N.B.R.(2d) TBEd. JL.001

Edgar Joseph Arsenault (appellant) v. Her Majesty The Queen (respondent)

(279/96/CA)

Indexed As: R. v. Arsenault (E.J.)

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A.

June 26, 1997.

Summary:

The police stopped a truck. The back of it was enclosed by a locked wooden cap. An officer shone a flashlight through a crack in the rear of the cap and saw what he con­cluded was a tobacco carton. The police obtained a search warrant, found 20 cartons of unstamped tobacco and charged the ac­cused under the Excise Act. The trial judge excluded the evidence because the police did not have articulable cause to stop the ac­cused's vehicle. The Crown appealed.

The New Brunswick Court of Appeal, in a decision reported 173 N.B.R.(2d) 13; 441 A.P.R. 13, allowed the appeal and ordered a new trial.

Before the second trial, the accused re­quested that the Crown produce the truck for inspection. The Crown could not comply as the truck had been disposed of pursuant to the Act. At trial, the accused argued that his s. 7 Charter right to a fair trial was breached because the disposal of the truck prevented the Crown from making complete disclosure and deprived him of his ability to make full answer in defence. He also argued that his s. 8 Charter right to be free from unlawful search and seizure was infringed by the officer's shining the flashlight into the rear of the truck cap.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, rejected the arguments and convicted the accused. The accused appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - The police stopped a truck driven by the accused - A police officer shone a flashlight through a crack in the rear of the truck's cap and saw what he concluded was a tobacco carton - The police obtained a search warrant, found 20 cartons of unstamped tobacco and charged the accused under the Excise Act - The New Brunswick Court of Appeal ordered a new trial, after the trial judge improperly excluded evidence for an arbitrary deten­tion - At the second trial, the accused argued, inter alia, that his s. 8 Charter right was infringed by the officer's shining the flashlight into the rear of the truck - The trial judge rejected the argument - The New Brunswick Court of Appeal dismissed an appeal stating that the trial judge cor­rectly disposed of the issue - The matter was dismissed in the first trial and could not be raised a second time.

Civil Rights - Topic 3128

Trials - Fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - The ac­cused was charged under the Excise Act with possessing unstamped tobacco - The accused asked to inspect the truck he was driving when arrested - The Crown failed to comply with the request because it had been disposed of - The accused argued that the disposal breached his s. 7 Charter right to a fair trial as it prevented the Crown from making complete disclosure and deprived him of his ability to make full answer in defence - The New Brunswick Court of Appeal affirmed that there was no Charter breach - The accused's request for production was too late and without any evidential basis - The purpose for the inspection was a matter for cross-examina­tion - Further, it was unlikely the truck's contents could be arranged exactly as they were at the time of apprehension.

Civil Rights - Topic 3133

Trials - Fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3128 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Civil Rights - Topic 1524 ].

Counsel:

Wendell J. Maxwell, for the appellant;

James C. Crocco, for the respondent.

This appeal was heard on June 10, 1997, before Hoyt, C.J.N.B., Ayles and Turnbull, JJ.A., of the New Brunswick Court of Ap­peal.

The court delivered its decision on June 26, 1997.