R. v. Belliveau (B.E.) and Losier (C.C.), (1986) 75 N.B.R.(2d) 18 (CA)

• Judge: Stratton, C.J.N.B., Hoyt and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 12, 1985
• Jurisdiction: New Brunswick
• Citations: (1986), 75 N.B.R.(2d) 18 (CA);1986 CanLII 88 (NB CA);75 NBR (2d) 18;30 CCC (3d) 163;54 CR (3d) 144;188 APR 18;28 CRR 213

R. v. Belliveau (B.E.) (1986), 75 N.B.R.(2d) 18 (CA);

    75 R.N.-B.(2e) 18; 188 A.P.R. 18

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R. v. Belliveau and Losier

(70/85/CA)

Indexed As: R. v. Belliveau (B.E.) and Losier (C.C.)

Répertorié: R. v. Belliveau (B.E.) and Losier (C.C.)

New Brunswick Court of Appeal

Stratton, C.J.N.B., Hoyt and Rice, JJ.A.

October 3, 1986.

Summary:

Résumé:

The accused were charged with having possession of cigarettes in a quantity exceeding that prescribed by Regulation 163 of the Tobacco Tax Act, which constituted an offence under s. 2.2(1) of the Act.

The New Brunswick Provincial Court, in a judgment reported (1985), 57 N.B.R.(2d) 286; 148 A.P.R. 286, acquitted the accused. The court held that s. 2.2(1) was inoperable because it was vague and that ss. 2.2(2) to 2.2(13) and s. 18(2) were either ultra vires or unenforceable. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (1985), 61 N.B.R.(2d) 223; 158 A.P.R. 223, dismissed the appeal. The court held that none of the provisions of the Act or the Regulations were vague or uncertain; the tax and prohibition against possession of large quantities were expressed in clear and unambiguous terms and were intra vires the provincial legislature. However, the court held that the search and seizure provisions of ss. 2.2(3) and 2.2(4) of the Act violated the right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights and Freedoms and were therefore of no force and effect pursuant to s. 52 of the Constitution Act. The court held that the evidence obtained pursuant to the search was inadmissible as bringing the administration of justice into disrepute. The Crown appealed.

The New Brunswick Court of Appeal dismissed the appeal. The court affirmed that ss. 2.2(3) and 2.2(4) of the Act violated the right to be secure against unreasonable search and seizure and were of no force and effect. The court also held that the denial of the accused's right to counsel was not sufficient to exclude evidence under s. 24 of the Charter, because its admittance would not bring the administration of justice into disrepute.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Sections 2.2(3) and 2.2(4) of the Tobacco Tax Act authorized the search and seizure of tobacco without warrant where there were reasonable and probable grounds to believe that an offence had been committed under the Act - The New Brunswick Court of Appeal affirmed that ss. 2.2(3) and 2.2 (4) violated the right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights and Freedoms, and were therefore of no force and effect pursuant to s. 52 of the Constitution Act - See paragraphs 18 to 28.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - The New Brunswick Court of Appeal discussed the American "plain view" doctrine in relation to warrantless police searches and seizures of property and it examined the three requirements which must be satisfied to invoke the doctrine - See paragraphs 24 to 27.

Civil Rights - Topic 3604

Detention - What constitutes detention - An R.C.M.P. officer and an officer of the Fuel and Tobacco Tax Branch of the Department of Finance seized a van, in Harvey, containing cigarettes in a quantity exceeding that prescribed by the Tobacco Tax Act Regulations - The accused then accompanied the officers back to Fredericton, one accused in the van and the other in a police car - The New Brunswick Court of Appeal held that the accused were detained within the meaning of s. 10 of the Charter where they were placed in an environment of restraint and their right of mobility lost - See paragraphs 11 to 13.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - An R.C.M.P. officer and an officer of the Fuel and Tobacco Tax Branch of the Department of Finance seized a van, in Harvey, containing cigarettes in a quantity exceeding that prescribed by the Tobacco Tax Act Regulations - The accused then accompanied the officers back to Fredericton, one accused in the van and the other in a police car - The New Brunswick Court of Appeal held that the accused were detained within the meaning of s. 10 of the Charter - The court stated that at the time of their detention, the accused were entitled to retain and instruct counsel without delay - See paragraph 13.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of Rights - Remedies - Exclusion of evidence - Pursuant to ss. 2.2(3) and 2.2(4) of the Tobacco Tax Act, a van was seized for containing tobacco in a quantity exceeding that prescribed by regulation - The owner of the van and a passenger were subsequently "detained" by the R.C.M.P. and an officer of the Fuel and Tobacco Tax Branch of the Department of Finance - One accused was not informed of his right to counsel while the other was informed some time after the seizure and his detention - The New Brunswick Court of Appeal stated that although the accused's right to counsel as guaranteed by s. 10(b) of the Charter was violated, the evidence would still be admissible because admission of the evidence despite the violation of the right to counsel would not bring the administration of justice into disrepute - See paragraphs 14 to 17.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - Sections 2.2(3) and 2.2 (4) of the Tobacco Tax Act authorized the search and seizure of tobacco without warrant where there were reasonable and probable grounds to believe that an offence had been committed under the Act - The New Brunswick Court of Appeal examined various American cases on warrantless searches and seizures pursuant to the Fourth Amendment of the Constitution - See paragraphs 20 to 25.

Sales and Service Taxes - Topic 3805

Tobacco tax - Validity of taxing statute - [See Civil Rights - Topic 1646 above].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask. R. 122; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 45 C.R.(3d) 97, appld. [para. 12].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; [1984] 6 W.W.R. 577; 11 D.L.R.(4th) 641; 41 C.R.(3d) 97; 33 Alta. L.R.(2d) 193; 14 C.C.C.(3d) 97, appld. [para. 18].

Carroll v. U.S. (1924), 26 U.S. 132, consd. [para. 20].

U.S. v. Ross (1982), 102 S.Ct. 2157, consd. [para. 20].

R. v. Rao (1984), 4 O.A.C. 162; 40 C.R.(3d) 1 (Ont. C.A.), consd. [para. 21].

R. v. Annett (1984), 6 O.A.C. 302; 43 C.R.(3d) 350, consd. [para. 22].

Texas v. Brown (1983), 75 L.Ed. 2d 502, consd. [para. 24].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 7, 18, 19, 26, 28]; sect. 10 [paras. 4, 11, 12]; sect. 24 [para 14].

Tobacco Tax Act, R.S.N.B. 1973, c. T-7, sect. 2.2; sect. 18(2) [para. 5].

Tobacco Tax Act Regulations, Reg. 63163, sect. 10 [para. 6].

Authors and Works Noticed:

Law Reform Commission of Canada, Police Powers - Search and Seizure in Criminal Law Enforcement, Working Paper 30 (1983), p. 175 [para. 23].

Morissette, Yves-Marie, The Exclusion of Evidence Under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do (1984), 29 McGill L.J. 521 [para. 16].

Stuart, Don, Annotation: R. v. Therens (1985), 45 C.R.(3d) 99 [para. 15].

Counsel:

J.T. Keith McCormick, for the appellant;

Donald J. Stevenson and George Lyons, for the respondents.

This appeal was heard on September 12, 1985, before Stratton, C.J.N.B., Hoyt, and Rice, JJ.A., of the New Brunswick Court of Appeal. On October 3, 1986, the following decision of the Court of Appeal was delivered by Stratton, C.J.N.B.: