R. v. Buhay (M.A.), 174 CCC (3d) 97

JudgeMcLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
CourtSupreme Court (Canada)
Case DateJune 05, 2003
JurisdictionCanada (Federal)
Citations174 CCC (3d) 97;304 WAC 72;2003 SCC 30;JE 2003-1124;(2003), 305 N.R. 158 (SCC);57 WCB (2d) 206;[2003] 1 SCR 631;AZ-50177805;[2003] ACS no 30;10 CR (6th) 205;177 Man R (2d) 72;305 NR 158;[2004] 4 WWR 1;[2003] SCJ No 30 (QL);225 DLR (4th) 624;107 CRR (2d) 240;122 ACWS (3d) 863

R. v. Buhay (M.A.) (2003), 305 N.R. 158 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2003] N.R. TBEd. JN.006

Mervyn Allen Buhay (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Quebec (intervener)

(28667; 2003 SCC 30; 2003 CSC 30)

Indexed As: R. v. Buhay (M.A.)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

June 5, 2003.

Summary:

Buhay was charged with unlawful pos­session of marijuana for the purposes of trafficking. He applied for exclusion of evidence under s. 24(2) of the Charter on the basis that his right to be secure against unreasonable search and seizure (Charter, s. 8) was violated.

The Manitoba Provincial Court, in a deci­sion reported 147 Man.R.(2d) 149, allowed the application. The Crown appealed.

The Manitoba Court of Appeal, in a deci­sion reported 156 Man.R.(2d) 111; 246 W.A.C. 111, allowed the appeal. The court held that there was no Charter violation and remitted the matter to the Provincial court for sentencing. Buhay appealed.

The Supreme Court of Canada allowed the appeal and restored the Provincial Court's decision.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Supreme Court of Canada held that the protections of s. 8 of the Charter (security against unreasonable search or seizure) extended to the objects that a person stored and locked in a bus depot locker - A reasonable person would expect that his or her private belongings, when secured in a locker that he or she paid money to rent, would be left alone, unless the contents appeared to pose a threat to the security of the bus depot - Unless an emergency or other exigent circumstances arose, locker renters could reasonably expect that their lockers would be free from unauthorized search by bus terminal security agents or the police - See paragraphs 18 to 24.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - Two police officers, responding to a call by Winnipeg bus terminal security guards, searched, seized and took away marijuana that had been stored in a rented locker - As a result, Buhay was charged with pos­session of marijuana for the purpose of trafficking - The officers never obtained a search warrant - The idea had not crossed their minds - Buhay argued that the search and seizure was unreasonable (Charter, s. 8) and sought exclusion of the evidence obtained as a result (Charter, s. 24(2)) - The trial judge agreed with Buhay and allowed the application - With respect to s. 24(2), the trial judge said that the s. 8 violation was serious and not simply tech­nical and that he was concerned at the police's casual approach in infringing Buhay's rights here - The trial judge ruled that admission of the marijuana here would cause greater disrepute to the justice sys­tem than its exclusion would - The Supreme Court of Canada affirmed the decision where, (a), with respect to s. 8: (1) there were no exigent circumstances; (2) the marijuana was not in plain view; and (3) the warrantless search and seizure was an impermissible intrusion of the state on a legitimate and reasonable expectation of privacy; and, (b), with respect to s. 24(2), the trial judge's conclusions were reasonable.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - Winnipeg bus terminal security guards searched a storage locker after smelling marijuana - The Supreme Court of Canada agreed with lower court rulings that there was no Char­ter violation since the security guards were private actors and were not agents of the state - See paragraphs 25 to 31.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8380.5

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Appeals - The Supreme Court of Canada discussed the principles applicable to appellate review of a trial judge's decision to exclude or admit evidence following a breach of the Charter - See paragraphs 41 to 48.

Cases Noticed:

R. v. Fitch (E.R.) (1994), 47 B.C.A.C. 154; 76 W.A.C. 154 (C.A.), refd to. [para. 10].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 10].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 11].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 12].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 18].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 18].

R. v. Dinh (H.T.) et al. (2001), 284 A.R. 304; 42 C.R.(5th) 318 (Prov. Ct.), refd to. [para. 21].

R. v. Mercer and Kenny (1992), 52 O.A.C. 70; 70 C.C.C.(3d) 180 (C.A.), consd. [para. 23].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, consd. [para. 24].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, consd. [para. 25].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, consd. [para. 25].

R. v. Caucci (1995), 43 C.R.(4th) 403 (Que. C.A.), refd to. [para. 30].

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 31].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 33].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 34].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 35].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 36].

Coolidge v. New Hampshire (1971), 403 U.S. 443, refd to. [para. 37].

R. v. Spindloe (M.) (2001), 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8 (C.A.), refd to. [para. 37].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18 (C.A.), refd to. [para. 37].

R. v. Nielsen (1988), 66 Sask.R. 293; 43 C.C.C.(3d) 548 (C.A.), refd to. [para. 37].

R. v. Kouyas (S.) (1994), 136 N.S.R.(2d) 195; 388 A.P.R. 195 (C.A.), affd. [1996] 1 S.C.R. 70; 192 N.R. 36; 148 N.S.R.(2d) 159; 429 A.P.R. 159, refd to. [para. 37].

R. v. Fitt (S.E.) (1995), 139 N.S.R.(2d) 186; 397 A.P.R. 186; 96 C.C.C.(3d) 341 (C.A.), affd. [1996] 1 S.C.R. 70; 192 N.R. 38; 148 N.S.R.(2d) 399; 429 A.P.R. 399, refd to. [para. 37].

Texas v. Brown (1983), 460 U.S. 730, refd to. [para. 37].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 40].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 40].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 40].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286, refd to. [para. 42].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 44].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177, refd to. [para. 44].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 44].

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. 44].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 44].

R. v. Goncalves (H.M.), [1993] 2 S.C.R. 3; 150 N.R. 384; 135 A.R. 397; 33 W.A.C. 397, refd to. [para. 44].

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. 44].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 44].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, consd. [para. 45].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 50].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 52].

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. 52].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, consd. [para. 54].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 63].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, consd. [para. 63].

R. v. Sieben, [1987] 1 S.C.R. 295; 74 N.R. 271, refd to. [para. 65].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 65].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 65].

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, consd. [para. 70].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 73].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169 (C.A.), consd. [para. 73].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2), sect. 32(1) [para. 15].

Private Investigators and Security Guards Act, R.S.M. 1987, c. P-132; C.C.S.M., c. P-132, sect. 1, sect. 35 [para. 15].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), p. 276 [para. 44].

Sopinka, John, Lederman, Sidney M., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 30 to 33, 339 to 340 [para. 40]; 423 [para. 44]; 450 [para. 59].

Counsel:

Bruce F. Bonney and G. Bruce Gammon, for the appellant;

David G. Frayer, Q.C., and Erin E. Ma­gas, for the respondent;

Written submissions only by Carole Le­beuf, for the intervener.

Solicitors of Record:

Phillips, Aiello, Winnipeg, Manitoba, for the appellant;

The Attorney General of Canada, Winni­peg, Manitoba, for the respondent;

The Attorney General's Prosecutor, Mont­réal, Quebec, for the intervener.

This appeal was heard on November 1, 2002, by McLachlin, C.J.C., Gonthier, Iaco­bucci, Major, Bastarache, Binnie, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court was delivered in both official languages by Arbour, J., on June 5, 2003.

To continue reading

Request your trial
86 practice notes
  • R. v. S.B.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 17, 2021
    ...to S.M. to see if she could find out anything, as she was only a couple minute walk away.  The time of this conversation was around 9:30 or 10:00 [108]     Shortly after, her daughter contacted C.R. and told her that something had happened.  C.R. ran out of her......
  • R. v. Senior, 2021 ONSC 2729
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • April 21, 2021
    ...August 25, 2018, UC1 and Cst. Senior shared some text messages about the meeting with Henry, which was to occur at Café Atlantis at 9:30 or 10:00 p.m.  (ASF#3, page 258-261)  However, as the text messages were occurring, UC1 received instructions that he was to have Cst. Seni......
  • R. v. Daou,
    • Canada
    • Court of Appeal (Ontario)
    • June 3, 2021
    ...set off the idea to drink to accomplish it, right.” [31]       It was not until approximately 9:30 or 10:00 p.m. that the appellant left his house and started to “really look” around his neighbourhood for a victim. He was not focused on any......
  • Raponi v. Phagura et al., 2005 BCSC 567
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • April 14, 2005
    ...started building a house during the first week of April, 1998. Mr. Raponi spent a part of each day on the site. He went to the office at 9:30 or 10:00 in the morning, left at 3:00 in the afternoon to return to the site, and returned home at 5:30 p.m. Thus, the house building took away betwe......
  • Request a trial to view additional results
84 cases
  • R. v. Livingstone,
    • Canada
    • Nunavut Court of Justice (Canada)
    • August 5, 2022
    ...On July 15 he met up with two colleagues and some of their friends before heading to the Legion. They arrived at the Legion around 9:30 or 10 p.m. Over the course of the evening, Mr. Livingstone said he drank four or five “normal pop-size” cans of Alexander Keith’s beer......
  • R. v. S.B.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 17, 2021
    ...to S.M. to see if she could find out anything, as she was only a couple minute walk away.  The time of this conversation was around 9:30 or 10:00 [108]     Shortly after, her daughter contacted C.R. and told her that something had happened.  C.R. ran out of her......
  • R. v. Senior, 2021 ONSC 2729
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • April 21, 2021
    ...August 25, 2018, UC1 and Cst. Senior shared some text messages about the meeting with Henry, which was to occur at Café Atlantis at 9:30 or 10:00 p.m.  (ASF#3, page 258-261)  However, as the text messages were occurring, UC1 received instructions that he was to have Cst. Seni......
  • R. v. Daou,
    • Canada
    • Court of Appeal (Ontario)
    • June 3, 2021
    ...set off the idea to drink to accomplish it, right.” [31]       It was not until approximately 9:30 or 10:00 p.m. that the appellant left his house and started to “really look” around his neighbourhood for a victim. He was not focused on any......
  • Request a trial to view additional results
2 firm's commentaries
  • Creed And Association: Breach Of Human Rights Leads To Harsh Penalties
    • Canada
    • Mondaq Canada
    • September 3, 2015
    ...undisputed evidence was that their mother, S.T., had advised the employer early on in H.T.'s employment that she could not work later than 9:30 or 10:00 p.m., to which the employer agreed. H.T. notified the employer twice that she was a Mennonite, and that she was unable to work on Himmilfa......
  • Creed and Association: Breach of Human Rights Leads to Harsh Penalties
    • Canada
    • JD Supra Canada
    • September 1, 2015
    ...undisputed evidence was that their mother, S.T., had advised the employer early on in H.T.’s employment that she could not work later than 9:30 or 10:00 p.m., to which the employer agreed. H.T. notified the employer twice that she was a Mennonite, and that she was unable to work on Himmilfa......
2 books & journal articles
  • Youth crime rates and the youth justice system.
    • Canada
    • Canadian Journal of Criminology and Criminal Justice Vol. 50 Nbr. 5, October - October 2008
    • October 1, 2008
    ...in the ranges across the different provinces. For example, after Saskatchewan, Ontario had the highest rate for the use of custody (8.30 per 10,000 youths)--3.4 times that of BC, which had the lowest rate (2.45). Again, this variation stands in contrast to the variation seen across the prov......
  • The persistence of status offences in the youth justice system.
    • Canada
    • Canadian Journal of Criminology and Criminal Justice Vol. 54 Nbr. 3, July 2012
    • July 1, 2012
    ...year (2003/4) of the YCJA were the most substantial one-year declines. Overall, the rate of finding youths guilty decreased by a rate of 30 per 10,000 in the first year of the YCJA (from 151 in 2002/3 to 121 in 2003/4); minor assaults only decreased by a rate of 3 (from 15 per 10,000 to 12)......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT