R. v. Aucoin (B.D.), (2011) 306 N.S.R.(2d) 20 (CA)

• Judge: Hamilton, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 13, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 306 N.S.R.(2d) 20 (CA);2011 NSCA 64

R. v. Aucoin (B.D.) (2011), 306 N.S.R.(2d) 20 (CA);

    968 A.P.R. 20

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JL.032

Brendan David Aucoin (appellant) v. Her Majesty The Queen (respondent)

(CAC 336128; 2011 NSCA 64)

Indexed As: R. v. Aucoin (B.D.)

Nova Scotia Court of Appeal

Hamilton, Fichaud and Beveridge, JJ.A.

July 13, 2011.

Summary:

The accused's vehicle was stopped for a traffic violation. The smell of alcohol led to a roadside screening test demand. The accused's blood-alcohol level was under the legal limit, but exceeded the zero tolerance level. Since the accused was a newly licenced driver, it was an offence to drive with an alcohol level exceeding zero. The officer decided to put the accused in the back seat of the police vehicle while he wrote out a summary conviction ticket. In following his standard practice, the officer did a pat-down search for weapons. The officer found 100 ecstasy pills and eight bags of cocaine. The trial judge dismissed the accused's application to exclude the evidence under s. 24(2) of the Charter, finding that there had been no unreasonable search and seizure (s. 8). The evidence was admitted and the accused was convicted of possession of cocaine for the purpose of trafficking and was sentenced to two years' imprisonment. The accused appealed his conviction and sentence. The accused argued that (1) the judge erred in finding that the pat-down search did not constitute an unreasonable search and seizure, (2) the judge gave undue weight to expert evidence that the amount of cocaine in the accused's possession was for trafficking purposes, not personal use, (3) the verdict was unreasonable and (4) the judge erred in determining that she was constrained from imposing a conditional sentence, thereby failing to consider and properly apply the principles of sentencing.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, dismissed the conviction appeal and the sentence appeal.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - The accused's vehicle was stopped for a traffic violation - The smell of alcohol led the officer to give the accused a roadside screening test demand - The accused registered a pass, but the test results showed a blood-alcohol level more than zero - Since the accused was a newly licensed driver, subject to zero alcohol tolerance, the officer decided to write a summary conviction ticket - The accused's vehicle was being towed - The officer had no backup and had to write the ticket in the front seat of his police vehicle - The options were to place the accused in the back seat of the police vehicle while he wrote out the ticket, or leave him standing outside the vehicle, with the risk that he might walk off - The officer chose the former and did a quick pat-down search for weapons before placing him in the back seat - Cocaine and ecstasy pills were found in the accused's pocket - The accused was charged with possession of cocaine for the purpose of trafficking - The trial judge refused to exclude the evidence under s. 24(2) of the Charter, finding that the accused had not been subjected to an unreasonable search and seizure (s. 8) - The Nova Scotia Court of Appeal dismissed the accused's conviction appeal - This was a lawful protective pat-down search incidental to the accused's investigative detention - The search was done for officer safety, not as an investigative tool to collect evidence - In the circumstances, it was reasonable to detain the accused while writing the ticket and reasonable to conduct a quick pat-down search for purposes of officer safety - There was no unreasonable search and seizure - See paragraphs 13 to 29.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1214 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was convicted of possession of cocaine for the purpose of trafficking after being found in possession of 100 ecstasy pills, eight separate packages of cocaine and almost $300 in cash - The accused appealed his conviction on the ground that the verdict was unreasonable - The Nova Scotia Court of Appeal dismissed the appeal, stating that "there was evidence (1) that the appellant had eight baggies of cocaine, (2) it was unlikely a user as opposed to a trafficker would purchase that quantity of cocaine bagged in smaller quantities when it is more economical to buy it in a single multi-gram bag, (3) that he had 100 green pills commonly sold as Ecstasy divided into two baggies, (4) that he had $290 or $295 cash in his pocket, separated into money inside and outside his wallet and that traffickers sometimes separate their float from their profit, and (5) that the appellant was in the downtown area of a small town near a university, around midnight, during the busy Apple Blossom Festival where there would be an opportunity to sell cocaine. I am satisfied that a properly instructed jury acting judicially could reasonably have convicted on this evidence. I am also satisfied that the facts on which the judge based her verdict are not demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the judge." - See paragraphs 38 to 41.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The accused was convicted of possession of cocaine for the purpose of trafficking - The accused argued for a conditional sentence - The trial judge sentenced the accused to two years' imprisonment - The judge commented that she could impose a conditional sentence of two years' less a day only if she emphasized rehabilitation over deterrence, but that case law mandated that deterrence be emphasized where the offence involved cocaine - The accused appealed against sentence, arguing that the judge erred in finding herself constrained from imposing a conditional sentence - The Nova Scotia Court of Appeal dismissed the appeal - The judge did not constrain herself from imposing a conditional sentence or misapply the principles of sentencing - The judge was correct to stress deterrence - The judge properly considered the mitigating factors (accused's youth, family support and lack of a criminal record) - A sentence of two years' imprisonment was not unfit - See paragraphs 42 to 48.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The accused was found in possession of eight bags of cocaine and hundreds of dollars in cash - No other drug paraphernalia was found - The Crown called expert evidence that the amount of cocaine in the accused's possession was consistent with trafficking and inconsistent with personal use - The accused appealed his trafficking conviction on the ground that the trial judge gave undue weight to the expert evidence - The Nova Scotia Court of Appeal dismissed the appeal - The judge noted the weaknesses of the expert evidence - Neither the judge's reasons nor the record indicated that inappropriate weight was given - The judge was entitled to reject the accused's testimony that the eight separate packages were for personal use and the cash (separated in his pocket) was to pay his rent the next day - See paragraphs 30 to 37.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1214 ].

Police - Topic 3188

Powers - Search - Weapons search of persons - [See Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 18].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 25].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 39].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 39].

R. v. Beaudry (A.) (2007), 356 N.R. 323; 2007 SCC 5, refd to. [para. 39].

R. v. Rhyno (V.W.) (2009), 283 N.S.R.(2d) 246; 900 A.P.R. 246; 2009 NSCA 108, refd to. [para. 43].

R. v. Butt (R.J.) (2010), 291 N.S.R.(2d) 376; 922 A.P.R. 376; 2010 NSCA 56, refd to. [para. 46].

R. v. Knickle (N.A.) (2009), 277 N.S.R.(2d) 392; 882 A.P.R. 392; 2009 NSCA 59, refd to. [para. 46].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 50].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 52].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 52].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 52].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 52].

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. 54].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 56].

R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.), refd to. [para. 60].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 72].

R. v. Moore, [1979] 1 S.C.R. 195; 24 N.R. 181, refd to. [para. 73].

R. v. Quist (1981), 11 Sask.R. 28 (C.A.), refd to. [para. 73].

R. v. Hayes (W.G.) (2003), 174 O.A.C. 185 (C.A.), refd to. [para. 73].

R. v. Higdon (A.M.) (1998), 168 Nfld. & P.E.I.R. 20; 517 A.P.R. 20 (Nfld. T.D.), refd to. [para. 73].

R. v. Bercier (T.J.) (2003), 175 Man.R.(2d) 239; 2003 MBQB 90, refd to. [para. 77].

R. v. Miller (T.C.) (2006), 251 N.S.R.(2d) 60; 802 A.P.R. 60; 2006 NSPC 68, refd to. [para. 77].

R. v. Power (B.) (2001), 204 Nfld. & P.E.I.R. 221; 614 A.P.R. 221; 2001 NFCA 50, refd to. [para. 77].

R. v. Cooper (U.A.), [2011] A.R. Uned. 54; 2011 ABQB 17, refd to. [para. 77].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 81].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 81].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 81].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 82].

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14; 743 A.P.R. 14; 2005 NLCA 51, refd to. [para. 82].

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 82].

R. v. Morelli (U.P.) - see R. v. U.P.M.

R. v. Harris (M.) (2007), 228 O.A.C. 241; 2007 ONCA 574, refd to. [para. 91].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 2010 BCCA 11, refd to. [para. 93].

Counsel:

Brian V. Vardigans, for the appellant;

Leonard MacKay, for the respondent.

This appeal was heard on March 17, 2011, at Halifax, N.S., before Hamilton, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On July 13, 2011, the judgment of the Court was delivered and the following opinions were filed:

Hamilton, J.A. (Fichaud, J.A., concurring) - see paragraphs 1 to 48;

Beveridge, J.A., dissenting - see paragraphs 49 to 100.