R. v. Charbonneau (S.) et al., (2014) 358 Nfld. & P.E.I.R. 90 (NLTD(G))

• Judge: Mennie, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 02, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 358 Nfld. & P.E.I.R. 90 (NLTD(G))

R. v. Charbonneau (S.) (2014), 358 Nfld. & P.E.I.R. 90 (NLTD(G));

    1113 A.P.R. 90

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. DE.012

Her Majesty the Queen v. Sylvain Charbonneau and Jean Dessailliers

(201304G0002; 2014 NLTD(G) 148)

Indexed As: R. v. Charbonneau (S.) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Mennie, J.

December 4, 2014.

Summary:

The RCMP conducted a search of Charbonneau's vehicle and found 26 kg of marijuana and 1 kg of hashish. He and his passenger (Dessailliers) were charged with possession of marijuana and possession of cannabis resin, both for the purposes of trafficking, and with trafficking in marijuana and cannabis resin. Both sought to exclude the results of the vehicle search on the basis that the RCMP had violated their Charter rights. Charbonneau asserted that his ss. 8, 9 and 10(b) rights were breached. Dessailliers asserted that his s. 9 rights were violated.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Charbonneau's s. 9 rights were violated when his vehicle was stopped on the highway, both accused's s. 9 rights were violated during the investigative detention and their subsequent unlawful arrest, and Charbonneau's s. 8 rights were violated when the police had a dog conduct a perimeter sniff search of his vehicle and when the police searched the vehicle incident to the unlawful arrest. The court excluded the evidence resulting from the search.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest - Two RCMP officers pulled over Charbonneau's vehicle - The officers decided to detain Charbonneau for investigative purposes based on what they believed to be a reasonable suspicion that he was involved in the drug trade - Charbonneau was arrested and advised that a sniffer dog was going to do a free air search around his vehicle - The dog indicated the presence of drugs - The police arrested Charbonneau's passenger (Dessailliers) - Three officers proceeded to search the entirety of the vehicle and found 26 kg of marijuana and 1 kg of hashish - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that, given its conclusion that the arrest of both Charbonneau and Dessailliers were invalid, the search of the vehicle was unlawful - As such, the search violated Charbonneau's s. 8 Charter rights - See paragraph 77.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Two RCMP officers who were members of the Roving Traffic Unit pulled over Charbonneau's vehicle which had Quebec license plates - The Roving Traffic Unit's mandate was to stop as many vehicles as possible for driving and/or highway safety reasons and then look for indicators of criminal activity - A search of Charbonneau's vehicle found 26 kg of marijuana and 1 kg of hashish - Charbonneau and his passenger were charged with drug related offences - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Charbonneau's s. 9 rights were violated when the officers stopped his vehicle on the highway - Neither officer provided any evidence to suggest that they pulled over the vehicle due to articulable cause - The stopping of the vehicle was not for a reason related to driving or highway safety - Instead, it was an attempt by the officers to verify "vague information" concerning a truck from Quebec carrying chainsaws that might be involved in criminal activity in furtherance of the Roving Traffic Unit's mandate - The Highway Traffic Act did not permit vehicles to be stopped for reasons unrelated to driving a car - Traffic stops could not be used as a means of conducting investigations into unsubstantiated suspicions - See paragraphs 27 to 37.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Two RCMP officers pulled over Charbonneau's vehicle which had Quebec license plates - The officers decided to detain Charbonneau and his passenger (Dessailliers) for investigative purposes based on what they believed to be a reasonable suspicion that Charbonneau and Dessailliers were involved in the drug trade - That suspicion was based on the following: (1) Quebec was a source province for drugs; (2) the accused's story that they were travelling to St. John's to check out possible moose hunting areas was absurd given the availability of information on the internet; (3) St. John's was considered a common destination for contraband; and (4) Dessailliers appeared nervous - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the accused were arbitrarily detained contrary to s. 9 of the Charter - The indications of alleged criminal activity, when considered collectively and objectively, amounted to no more than a generalized suspicion and were insufficient to justify the accused's detention - See paragraphs 53 to 57.

Civil Rights - Topic 4608.1

Right to counsel - General - Advice re - Understanding of - Two RCMP officers pulled over Charbonneau's vehicle - The officers decided to detain Charbonneau and his passenger (Dessailliers) based on what they believed to be a reasonable suspicion that Charbonneau and Dessailliers were involved in the drug trade - Charbonneau was a unilingual Francophone - The officers brought in a French speaking officer (Reidpath) who arrested Charbonneau and, relying on his memory, advised him in French of his right to a lawyer - The accused asserted that he was unable to understand Reidpath as he was speaking Acadian French which combined the English and French vocabulary - He claimed that he only understood the word "arrest" - The Newfoundland and Labrador Supreme Court, Trial Division (General), accepted that Charbonneau had some difficulty understanding Reidpath - However, it did not accept that the difficulties were such that Charbonneau did not understand his right to counsel - Reidpath agreed that his Acadian French caused some comprehension difficulties for Charbonneau and he acknowledged that at one point Charbonneau told him that he did not understand - While it would have been preferable for Reidpath to have read the right to counsel directly from a French police issued card, given his 28 years as a member, the court accepted that he was capable of explaining the right to counsel based on his memory - The court also accepted Reidpath's evidence that he was satisfied that Charbonneau understood his rights - The court reached that conclusion because if had been otherwise, Reidpath would not have been able to gather the information that he did from Charbonneau - See paragraphs 102 to 108.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4608.1 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4608.1 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - Two RCMP officers pulled over Charbonneau's vehicle - The officers decided to detain Charbonneau and his passenger (Dessailliers) for investigative purposes based on what they believed to be a reasonable suspicion that Charbonneau and Dessailliers were involved in the drug trade - Charbonneau was a unilingual Francophone - The officers brought in a French speaking officer (Reidpath) who arrested Charbonneau and advised him that he had a right to speak to a lawyer - Reidpath advised him that he had three choices: (1) a lawyer of his choosing; (2) a local lawyer; or (3) a lawyer from the Legal Aid system - The accused requested a local lawyer - Reidpath advised that a local lawyer might be unable to speak French - Charbonneau indicated that that was not a problem because Dessailliers was bilingual - Another officer handed Reidpath a cell phone and indicated a bilingual lawyer was on the phone - Reidpath gave the phone to Charbonneau and left the vehicle to give him some privacy - Once Charbonneau was finished, Reidpath spoke to the lawyer who was employed with the Legal Aid Commission - The accused asserted that he was denied his right to counsel of his choice - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the assertion - Charbonneau did not ask to speak to a specific lawyer - He voiced no opposition to speaking with duty counsel - He voiced no dissatisfaction after the call - He did not restate his request for a local lawyer after his discussion with Legal Aid - See paragraphs 109 and 110.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The RCMP conducted a search of Charbonneau's vehicle and found 26 kg of marijuana and 1 kg of hashish - He and his passenger (Dessailliers) were charged with possession of marijuana and possession of cannabis resin, both for the purposes of trafficking, and with trafficking in marijuana and cannabis resin - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Charbonneau's s. 9 rights were violated when his vehicle was stopped on the highway, both accused's s. 9 rights were violated during the investigative detention and their subsequent unlawful arrest, and Charbonneau's s. 8 rights were violated when the police had a dog conduct a perimeter sniff search of his vehicle and when the police searched the vehicle incident to the unlawful arrest - The court concluded that the seriousness of the state conduct and the impact on the accused's Charter protected rights favoured exclusion of the evidence, while society's interest in an adjudication on the merits favoured inclusion - The court considered all of the evidence and concluded that if it were to admit the evidence, it would be condoning what it considered to be unlawful behaviour by the police - Maintaining the integrity of the justice system and the rule of law required the court to exclude the evidence - See paragraphs 112 to 132.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1214 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - Two RCMP officers pulled over Charbonneau's vehicle - The officers decided to detain Charbonneau and his passenger (Dessailliers) for investigative purposes based on a suspicion that they were involved in the drug trade - An alert by a sniffer dog resulted in the immediate arrest of Dessailliers - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that, given its finding that the officer lacked a reasonable suspicion to justify the deployment of the dog, the search conducted by the dog was not authorized by the law - As the sniff search results were the basis upon which the officers formulated the reasonable and probable grounds to arrest Dessailliers, his arrest was unlawful - Even if the positive indication by the dog could have been considered by the officers in their assessment of whether they had grounds to arrest Dessailliers, the court would still have concluded that they lacked reasonable and probable grounds - The officers had no evidence to suggest that Dessailliers had knowledge of, or control over, what they suspected were drugs in the vehicle - The arrest was unlawful - See paragraphs 65 to 68.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - Two RCMP officers pulled over Charbonneau's vehicle - The officers decided to detain Charbonneau for investigative purposes based on a suspicion that he was involved in the drug trade - Charbonneau was a unilingual Francophone - The officers brought in a French speaking officer (Reidpath) to instruct Charbonneau that he was being detained and a sniffer dog was going to do a free air search around his vehicle - Instead of detaining Charbonneau, Reidpath arrested him - The dog gave a positive indication of drugs - Charbonneau was not rearrested - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that, given the court's conclusion that the police lacked reasonable and probable grounds to detain Charbonneau, it followed that they lacked the grounds to arrest him when they did - Even if the police had rearrested Charbonneau after the dog gave a positive indication, the court would have concluded that his arrest was unlawful given that the police lacked the requisite grounds to deploy the dog - The court also questioned whether a positive indication by the dog would have been enough to provide the reasonable and probable grounds - The dog was simply an investigative tool - A positive indication meant that the dog had detected the odour of drugs - It could not be interpreted to mean that there were drugs actually present - The positive indication was simply a factor to be considered when the police assessed the totality of the information to determine if there were grounds for arrest - Therefore, if the police had arrested the accused at that stage, it would have concluded that the arrest was premature - The arrest was unlawful - See paragraphs 69 to 71.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See second Civil Rights - Topic 3603 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See both Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1214 ].

Cases Noticed:

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

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. 21].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 56 C.C.C.(3d) 22, refd to. [para. 23].

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; 2005 SCC 37, refd to. [para. 25].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 26].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 49].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 49].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 51].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 52].

R. v. Blanchard (P.J.) (2011), 308 Nfld. & P.E.I.R. 91; 958 A.P.R. 91; 2011 NLCA 33, refd to. [para. 54].

R. v. Jackman (D.K.) (2011), 313 Nfld. & P.E.I.R. 203; 974 A.P.R. 203; 2011 NLTD(G) 116, refd to. [para. 55, footnote 3].

R. v. Caines (V.S.) (2012), 316 Nfld. & P.E.I.R. 328; 982 A.P.R. 328 (N.L. Prov. Ct.), refd to. [para. 55, footnote 3].

R. v. Campbell (I.N.) (2014), 350 Nfld. & P.E.I.R. 245; 1088 A.P.R. 245; 2014 NLTD(G) 64, refd to. [para. 55, footnote 3].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 63].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 64].

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; 104 C.C.C.(3d) 23, refd to. [para. 75].

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; 121 C.C.C.(3d) 97, refd to. [para. 76].

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; 92 C.C.C.(3d) 404, refd to. [para. 88].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 89].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 90].

R. v. Magalong (O.C.) (2013), 346 B.C.A.C. 82; 592 W.A.C. 82; 2013 BCCA 478, refd to. [para. 92].

R. v. Vanstaceghem (1987), 21 O.A.C. 210 (C.A.), refd to. [para. 92, footnote 6].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 93].

R. v. Littleford (H.) (2001), 147 O.A.C. 123; 50 W.C.B.(2d) 261 (C.A.), refd to. [para. 95].

R. v. Clarke (P.) (2005), 198 O.A.C. 316; 196 C.C.C.(3d) 426 (C.A.), refd to. [para. 98].

R. v. Sheppard (W.) (2005), 253 Nfld. & P.E.I.R. 307; 759 A.P.R. 307; 2005 NLCA 45, refd to. [para. 100].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 115].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 118].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 128].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 129].

Counsel:

David Mills, Q.C., for Her Majesty the Queen;

Robby D. Ash, for Sylvain Charbonneau and Jean Dessailliers.

This application was heard at Corner Brook, N.L., on April 28-30, May 1 and October 2, 2014, by Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on December 4, 2014.