R. v. Campbell,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Hamilton and Freedman, JJ.A.
• Neutral Citation: 2003 MBCA 76
• Citation: (2003), 177 Man.R.(2d) 117 (CA),2003 MBCA 76,[2004] 1 WWR 208,15 CR (6th) 376,175 CCC (3d) 452,[2003] MJ No 207 (QL),107 CRR (2d) 168,177 Man R (2d) 117,(2003), 177 ManR(2d) 117 (CA),177 ManR(2d) 117,177 Man.R.(2d) 117,[2003] M.J. No 207 (QL)
• Date: 20 November 2002
• Court: Court of Appeal (Manitoba)

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117 (CA);

    304 W.A.C. 117

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. JN.040

Her Majesty The Queen (respondent) v. Duncan Bruce Campbell (accused/appellant)

(AR 02-30-05191; 2003 MBCA 76)

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

Manitoba Court of Appeal

Scott, C.J.M., Hamilton and Freedman, JJ.A.

June 10, 2003.

Summary:

The accused was charged with two counts of possession for the purpose of trafficking and one count of possession. The accused sought to exclude seized evidence, arguing that his ss. 8, 9 and 10(b) Charter rights were violated. The trial judge held that the accused's ss. 8 and 9 Charter rights were not violated. Although, the accused's s. 10(b) Charter right was violated, the trial judge refused to exclude the evidence. The trial judge convicted the accused and sentenced him to an 18 month conditional sentence. The accused appealed his conviction and sentence.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - An unidentified caller informed the police that the accused would be transporting drugs to Thompson - The police verified details from the informant about the accused's vehicle, residence address and the timing of his trip - Subsequently, the same caller advised that the vehicle was on route to Thompson - An officer stopped the accused's vehicle outside of Thompson - The officer verified the accused's identity, arrested him and seized the vehicle - After speaking to counsel, the accused admitted that the vehicle contained drugs - The police obtained a search warrant and seized the drugs - The Manitoba Court of Appeal held that the police lacked reasonable grounds to believe that the accused possessed drugs when they stopped him - Although the tip was fairly compelling, the information verified by the police was entirely "innocent" in nature and did not confirm any "criminal" aspects of the tip - The tip's reliability was not established - There were no reasonable grounds to arrest the accused or seize the vehicle - The vehicle's seizure violated s. 8 of the Charter - However, the court refused to exclude the evidence of the drugs - See paragraphs 13 to 32.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - An unidentified caller informed the police that the accused would be transporting drugs to Thompson under the guise of attending snowmobile races - The police verified details from the informant about the accused's vehicle, residence address and the timing of his trip - Subsequently, the same caller advised that the vehicle was on route to Thompson - An officer stopped the accused's vehicle outside of Thompson - The accused produced his driver's licence and registration - He stated that he was going to snowmobile races - The officer arrested the accused - The Manitoba Court of Appeal held that the accused was not arbitrarily detained when he was stopped - Once the accused's vehicle was spotted heading to Thompson, the police were justified in putting this information together with the tip information to exclude coincidence - However, the subsequent arrest was unlawful, because, although the police had articulable cause to detain the accused, they lacked reasonable grounds to arrest him - Nevertheless, the unlawful arrest was not an arbitrary detention because the actions of the police were not "capricious, despotic or unjustified" - See paragraphs 33 to 43.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - The Manitoba Court of Appeal stated that "appellate courts in Canada have accepted the proposition that an unlawful arrest will not necessarily constitute an arbitrary detention. What must be determined is whether the arrest was 'capricious, despotic or unjustified', or whether there were 'near grounds' or articulable cause for the detention." - See paragraph 42.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer stopped the accused's vehicle, acting on an anonymous tip that the accused would be transporting drugs to Thompson under the guise of attending a snowmobile race - Upon request, the accused produced his driver's licence and registration - In response to the officer's question, the accused stated that he was headed to a snowmobile race - The officer arrested the accused - After speaking to counsel, the accused admitted that the vehicle contained drugs - The police obtained a search warrant and seized the drugs - The accused argued that he should have been given his right to counsel immediately upon being detained and before being asked for his licence or questioned - The Manitoba Court of Appeal held that the Highway Traffic Act authorized the police to stop the accused's vehicle and demand production of his licence - However, the accused was entitled "forthwith" to be advised of his right to counsel before being pointedly questioned about where he was going - Nonetheless, the court refused to exclude the evidence under s. 24(2) of the Charter - See paragraphs 44 to 52.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer stopped the accused's vehicle, acting on an anonymous tip that the accused was transporting drugs - The officer verified the accused's identity and destination - The officer arrested the accused and seized the vehicle - After speaking to counsel, the accused admitted that the vehicle contained drugs - The police obtained a search warrant and seized the drugs - The Manitoba Court of Appeal held that the police lacked reasonable grounds to arrest the accused or seize the vehicle - Therefore, the vehicle's seizure violated s. 8 of the Charter - Further, failure to advise him of his right to counsel forthwith violated s. 10(b) - However, the court refused to exclude the seized evidence under s. 24(2) - Neither the identification of the accused through his licence nor his response to a question about his destination were a "necessary element" in obtaining the search warrant - Therefore, the drugs were not derivative, conscriptive evidence - Regardless, they probably would have been discovered absent the breach - Their admission would not render the trial unfair - The Charter violations were not serious - Admitting the evidence would not bring the administration of justice into disrepute - See paragraphs 53 to 66.

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See first Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 13].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208 (C.A.), refd to. [para. 13].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 18].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 18].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 21].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 21].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 21].

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. 23].

R. v. Lamy (R.M.J.) (1993), 85 Man.R.(2d) 179; 41 W.A.C. 179 (C.A.), refd to. [para. 24].

R. v. Zammit (J.) (1993), 62 O.A.C. 272; 81 C.C.C.(3d) 112 (C.A.), refd to. [para. 25].

R. v. Bennett (1996), 108 C.C.C.(3d) 175 (Que. C.A.), refd to. [para. 25].

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. 30].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 31].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 33].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 33].

R. v. Wilson, [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 33].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 33].

R. v. C.M.G. (1996), 113 Man.R.(2d) 76; 131 W.A.C. 76 (C.A.), refd to. [para. 33].

R. v. McAuley (R.P.) and Smith (D.J.) (1998), 126 Man.R.(2d) 202; 167 W.A.C. 202 (C.A.), refd to. [para. 33].

R. v. Pimentel (J.R.A.) (2000), 145 Man.R.(2d) 295; 218 W.A.C. 295 (C.A.), leave to appeal dismissed (2000), 264 N.R. 396; 156 Man.R.(2d) 160; 246 W.A.C. 160 (S.C.C.), refd to. [para. 33].

R. v. Chabot (G.A.) (1993), 126 N.S.R.(2d) 355; 352 A.P.R. 355; 86 C.C.C.(3d) 309 (C.A.), refd to. [para. 33].

R. v. Dupuis (W.J.) (1994), 162 A.R. 197; 83 W.A.C. 197 (C.A.), refd to. [para. 33].

R. v. Burke (A.) (1997), 153 Nfld. & P.E.I.R. 91; 475 A.P.R. 91; 118 C.C.C.(3d) 59 (Nfld. C.A.), refd to. [para. 33].

R. v. Pearce (B.J.) (1997), 157 Nfld. & P.E.I.R. 227; 486 A.P.R. 227; 120 C.C.C.(3d) 467 (Nfld. C.A.), refd to. [para. 33].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), leave to appeal dismissed (1998), 236 N.R. 390; 122 B.C.A.C. 280; 200 W.A.C. 280; 129 C.C.C.(3d) iv (S.C.C.), refd to. [para. 33].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), leave to appeal dismissed (1999), 239 N.R. 400 (S.C.C.), refd to. [para. 33].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 39].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), refd to. [para. 39].

R. v. Cayer et al. (1988), 28 O.A.C. 105; 66 C.R.(3d) 30 (C.A.), refd to. [para. 40].

R. v. Brown (1987), 76 N.S.R.(2d) 64; 189 A.P.R. 64; 33 C.C.C.(3d) 54 (C.A.), refd to. [para. 41].

R. v. Moore (1988), 89 N.S.R.(2d) 199; 227 A.P.R. 199; 45 C.C.C.(3d) 410 (C.A.), refd to. [para. 41].

R. v. Saulnier (1990), 23 M.V.R.(2d) 16 (B.C.C.A.), refd to. [para. 41].

R. v. Sieben (1989), 99 A.R. 379; 51 C.C.C.(3d) 343 (C.A.), refd to. [para. 41].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 45].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 46].

R. v. Merasty (1984), 33 Sask.R. 85 (Q.B.), refd to. [para. 49].

R. v. Ellerman (B.H.), [2000] 6 W.W.R. 704; 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 49].

R. v. Elias (D.J.) (2003), 177 Man.R.(2d) 13; 304 W.A.C. 13 (C.A.), refd to. [para. 49].

R. v. Orbanski (C.) (2003), 173 Man.R.(2d) 132; 293 W.A.C. 132 (C.A.), refd to. [para. 49].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 54].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 54].

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. 55].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 62].

Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; 201 N.R. 241, refd to. [para. 66].

Authors and Works Noticed:

Patel, Aman S., Detention and Articulable Cause: Arbitrariness and Growing Judicial Deference to Police Judgment (2001), 45 Crim. L.Q. 198, pp. 220, 230 [para. 49].

Counsel:

J.C. Prober, for the appellant;

R.P. Maertens, for the respondent.

This appeal was heard on November 20, 2002, by Scott, C.J.M., Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. The decision of the Court of Appeal was delivered by Scott, C.J.M., on June 10, 2003.