R. v. Crowther (D.W.), (2013) 343 B.C.A.C. 127 (CA)

• Judge: Newbury, Groberman and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 13, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 343 B.C.A.C. 127 (CA);2013 BCCA 364

R. v. Crowther (D.W.) (2013), 343 B.C.A.C. 127 (CA);

    586 W.A.C. 127

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. AU.016

Regina (respondent) v. Derek Wyatt Crowther (appellant)

(CA039647)

Regina (respondent) v. Tyler Joseph Pastuck (appellant)

(CA039650; 2013 BCCA 364)

Indexed As: R. v. Crowther (D.W.)

British Columbia Court of Appeal

Newbury, Groberman and Bennett, JJ.A.

August 13, 2013.

Summary:

Police responded to a complaint of someone being badly beaten. They saw the accused Crowther standing in a window in the residence of the other accused (Pastuck). Crowther was known to police and refused their invitation to talk with them. One of the officers kicked open Pastuck's door and searched the house with his gun drawn. Both accused were arrested. Their pants were wet and muddy, consistent with being the two men seen beating the victim in the rain. The police obtained a warrant to obtain foot impressions from the accused. Before obtaining the foot impressions, the accused were given an opportunity to call a lawyer. Crowther spoke with his lawyer. Pastuck's lawyer was out of the office for "about an hour". The police then took the foot impressions, advising Pastuck that he could call his lawyer later. The victim died. The accused were convicted of manslaughter. The trial judge held that the warrantless entry to prevent the destruction of evidence was not authorized by statute or common law. This constituted an unreasonable search and seizure (Charter, s. 8). The judge found reasonable and probable grounds, subjectively and objectively, to lawfully arrest both accused. The taking of Pastuck's foot impression before permitting him a reasonable opportunity to talk with his lawyer violated his s. 10(b) Charter right to counsel. Pastuck's foot impression evidence was excluded, Crowther's foot impression evidence was admissible. The judge declined to exclude the evidence obtained upon the unlawful entry into Pastuck's residence under s. 24(2) or stay the proceedings under s. 24(1). The accused appealed their convictions.

The British Columbia Court of Appeal dismissed the appeals. There were objectively reasonable and probable grounds to arrest the accused. The judge did not err in refusing to exclude the evidence under s. 24(2). The verdict was neither unreasonable nor unsupported by the evidence and the judge did not misapprehend or disregard important evidence.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 36 to 57.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - See paragraphs 36 to 57.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - See paragraphs 58 to 67.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - See paragraphs 68 to 81.

Criminal Law - Topic 4868

Appeals - Indictable offences - Grounds of appeal - Failure to consider evidence - See paragraphs 68 to 81.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - See paragraphs 22 to 35.

Cases Noticed:

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 29].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 40].

R. v. Waterfield, [1963] 3 All E.R. 659; [1964] 1 Q.B. 164 (Ct. Crim. App.), refd to. [para. 42].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 42].

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. 45].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 63].

R. v. Ngo (M.D.) (2009), 273 B.C.A.C. 174; 461 W.A.C. 174; 2009 BCCA 301, refd to. [para. 63].

R. v. Zhu (D.D.J.) (2013), 338 B.C.A.C. 9; 577 W.A.C. 9; 2013 BCCA 118, refd to. [para. 66].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 68].

Counsel:

R.A. Mulligan, Q.C., for the appellant, Crowther;

D. Kontou, for the appellant, Pastuck;

B. MacLean, for the respondent.

These appeals were heard on June 24, 2013, at Vancouver, B.C., before Newbury, Groberman and Bennett, JJ.A., of the British Columbia Court of Appeal.

On August 13, 2013, Bennett, J.A., delivered the following judgment for the Court of Appeal.