R. v. C.S., 2006 NBPC 7

• Judge: Ferguson, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: November 04, 2005
• Jurisdiction: New Brunswick
• Citations: 2006 NBPC 7;(2006), 302 N.B.R.(2d) 317 (PC)

R. v. C.S. (2006), 302 N.B.R.(2d) 317 (PC);

    302 R.N.-B.(2e) 317; 784 A.P.R. 317

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2006] N.B.R.(2d) TBEd. MY.003

Her Majesty the Queen v. C.S.

(Y1376-13; 2006 NBPC 7)

Indexed As: R. v. C.S.

New Brunswick Provincial Court

Judicial District of Miramichi

Ferguson, P.C.J.

March 17, 2006.

Summary:

The perceived suspicious noon hour behav­iour of the accused high school student aroused a teacher's interest. The teacher made a report to the school principal. The principal and two vice-principals sought out the accused in her class and asked to speak to her. In the hall outside the classroom, the principal asked the accused if she was selling drugs. The accused responded that she was, but not at school. The accused's backpack was searched, but nothing was found. The accused handed over $60 that she had in her possession. She was then taken to the admin­istration office where she handed over seven joints to a vice principal. The accused was charged with possession of marijuana for the purpose of trafficking. A voir dire was held to determine whether there had been a breach of the accused's rights under s. 8 or s. 10 of the Charter. Also at issue was the common law and statutory admissibility of the statements made by the accused to the principal.

The New Brunswick Provincial Court held that the school principal was not a person in authority when the accused made statements to her. The court also found no breach of the accused's s. 8 or s. 10 Charter rights. The joints and the accused's statements were admissible in evidence.

Editor's Note: Certain names in the follow­ing case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreasonable search and seizure - The perceived suspi­cious noon hour behaviour of the accused high school student aroused a teacher's interest - The teacher made a report to the school principal - The principal and two vice-principals sought out the accused in her class and asked to speak to her - In the hall outside the classroom, the principal asked the accused if she was selling drugs - The accused responded that she was, but not at school - The accused's book bag was searched, but nothing was found - The accused handed over $60 that she had in her possession - She was then taken to the administration office where she handed over seven joints to a vice-principal - The New Brunswick Provincial Court held that if the turning over of the joints by the accused amounted to a seizure, it met the rules governing searches and seizures by school authorities set out in R. v. M.R.M. (S.C.C.) - Based on the information re­ceived from the teacher and the accused's admissions, there were reasonable grounds to suspect that the accused possessed drugs - There was no breach of s. 8 of the Char­ter in relation to the joints or the search of the backpack - See paragraphs 88 to 103.

Civil Rights - Topic 1222

Security of the person - Lawful or reason­able search - Consent to search or seizure - As a result of information they received from a teacher, a high school principal and two vice-principals sought out the accused student in her class and asked to speak to her - In the hall outside the classroom, the principal asked the accused if she was selling drugs - The accused responded that she was, but not at school - The accused's book bag was searched, but nothing was found - The accused voluntarily gave the principal $60 that she had in her posses­sion - She was then taken to the school administration office where she handed over seven joints to one of the vice-princi­pals - The New Brunswick Provincial Court held that there was an insufficient basis on which to conclude that the turning over of the joints and money by the ac­cused was with consent - It was unclear from the evidence, bearing in mind the accused's age and apparent maturity, whether any perceived consent was fully informed and voluntary - See paragraph 102.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The perceived suspicious noon hour behaviour of the accused high school student aroused a teacher's interest - The teacher made a report to the school principal - The princi­pal and two vice-principals sought out the accused in her class and asked to speak to her - In the hall outside the classroom, the principal asked the accused if she was selling drugs - The accused responded that she was, but not at school - The accused's book bag was searched, but nothing was found - The accused handed over $60 that she had in her possession - She was then taken to the administration office where she handed over seven joints to a vice-principal - The New Brunswick Provincial Court held that the accused was not de­tained at the time of initial contact with the principal and vice-principals - In the result, there was no obligation on their part to comply with the provisions of s. 10 of the Charter - See paragraphs 74 to 87.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - The perceived suspicious noon hour behaviour of the accused high school student aroused a teacher's interest - The teacher made a report to the school prin­cipal - The principal and two vice-princi­pals sought out the accused in her class and asked to speak to her - In the hall outside the classroom, the principal asked the accused if she was selling drugs - The accused responded that she was, but not at school - The accused's backpack was searched, but nothing was found - The accused handed over $60 that she had in her possession - She was then taken to the administration office where she handed over seven joints to a vice-principal - The New Brunswick Provincial Court held that the high school principal was not a person in authority when the accused made state­ments to her - See paragraphs 36 to 59.

Criminal Law - Topic 8846

Young offenders - Evidence and proof - Statements to a peace officer or person in authority - What constitute - [See Crim­inal Law - Topic 5353 ].

Education - Topic 5229

Students - Discipline, dismissal and exclu­sion - Search and seizure by school au­thorities - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 5].

R. v. Kicovic (N.) (2004), 377 A.R. 176; 25 C.R.(6th) 264 (Prov. Ct.), refd to. [para. 5].

R. v. Sargent (K.) (2005), 292 N.B.R.(2d) 219; 761 A.P.R. 219 (Prov. Ct.), refd to. [para. 5].

R. v. Haas (T.) (2005), 201 O.A.C. 52 (C.A.), refd to. [para. 35].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449, consd. [para. 39].

R. v. A.B. (1986), 13 O.A.C. 68; 26 C.C.C.(3d) 17 (C.A.), refd to. [para. 40].

R. v. Cinous, [2002] 2 S.C.R. 3; 285 N.R. 1; 162 C.C.C.(3d) 129; 2002 SCC 29, refd to. [para. 45].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371, refd to. [para. 45].

R. v. Cornejo (L.) (2003), 179 O.A.C. 182; 18 C.R.(6th) 124 (C.A.), refd to. [para. 45].

R. v. O'Brien (R.S.) (2003), 257 N.B.R.(2d) 243; 674 A.P.R. 243 (C.A.), refd to. [para. 45].

R. v. T.K.E. (2005), 281 N.B.R.(2d) 360; 736 A.P.R. 360 (C.A.), refd to. [para. 45].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1, consd. [para. 49].

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, consd. [para. 51].

R. v. Moose (N.C.) (2004), 190 Man.R.(2d) 156; 335 W.A.C. 156; 190 C.C.C.(3d) 521 (C.A.), refd to. [para. 61].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177 (C.A.), refd to. [para. 61].

R. v. Boucher (E.) (2005), 342 N.R. 42 (S.C.C.), refd to. [para. 62].

R. v. Mowry (A.S.) (2006), 297 N.B.R.(2d) 16; 771 A.P.R. 16 (C.A.), refd to. [para. 65].

R. v. R.G.L. (2004), 186 O.A.C. 355 (C.A.), refd to. [para. 73].

R. v. H., [1985] A.J. No. 567 (Prov. Ct.), consd. [para. 76].

R. v. Wilkinson (K.C.) (2001), 159 B.C.A.C. 7; 259 W.A.C. 7 (C.A.), refd to. [para. 86].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 88].

R. v. M.W.S., [2005] B.C.J. No. 1270 (Prov. Ct.), refd to. [para. 92].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 99].

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; 2004 SCC 52, refd to. [para. 99].

R. v. S.M.Z. (1998), 131 Man.R.(2d) 136; 187 W.A.C. 136 (C.A.), refd to. [para. 99].

New Jersey v. T.L.O. (1985), 469 U.S. 325 (S.C.), refd to. [para. 99].

T.L.O. v. Engerud - see New Jersey v. T.L.O.

R. v. J.M.G. (1986), 17 O.A.C. 107; 56 O.R.(2d) 705 (C.A.), refd to. [para. 99].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 13 C.R.(5th) 34; 122 C.C.C.(3d) 481; 38 O.R.(3d) 540 (C.A.), refd to. [para. 102].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 102].

R. v. Girouard (M.) (2003), 265 N.B.R.(2d) 304; 695 A.P.R. 304; 2003 NBCA 84, refd to. [para. 102].

Authors and Works Noticed:

Fontana, James A., and Keeshan, D., The Law of Search and Seizure in Canada (5th Ed. 2002), p. 407 [para. 102].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003), p. 8-50 [para. 47].

Counsel:

Jean Guy Savoie, for the Crown;

Ron Gaffney, for the defence.

This voir dire was heard on July 29 and November 4, 2005 and on February 10, 2006, before Ferguson, P.C.J., of the New Brunswick Provincial Court, Judicial District of Miramichi, who delivered the following decision on March 17, 2006.