R. v. D.S. et al., (2007) 259 N.S.R.(2d) 1 (YC)

• Judge: Tufts, P.C.J.
• Case Date: February 15, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 259 N.S.R.(2d) 1 (YC);2007 NSPC 41

R. v. D.S. (2007), 259 N.S.R.(2d) 1 (YC);

    828 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. OC.012

Her Majesty The Queen v. D.S.

Her Majesty The Queen v. M.R.

(1655203; 1655204; 1655213; 1655214; 2007 NSPC 41)

Indexed As: R. v. D.S. et al.

Nova Scotia Youth Justice Court

Tufts, P.C.J.

May 24, 2007.

Summary:

Two youths charged with drug offences applied under s. 24(2) of the Charter to exclude incriminating evidence on the ground that they had been arbitrarily detained (Charter, s. 9) and had not been advised of their right to counsel (Charter, s. 10(b)).

The Nova Scotia Youth Justice Court dismissed the application. The youths failed to prove that they were detained when questioned by police. Accordingly, there was no denial of their right to counsel.

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 3604

Detention and imprisonment - Detention - What constitutes detention - Police observed two youths acting suspiciously in a well-lit parking lot at 11 p.m. - Police asked what was going on - The youths gave different, but reasonable responses - As the youths appeared nervous, one officer exited the vehicle and confronted the youths with his suspicions - The officer suggested various explanations for their suspicious behaviour (eg., planning break and enter, drug deal, breaking into cars, etc.), not expecting a response, but expecting that the youths would talk to him - Both officers testified that the youths were not detained and could have left, although neither officer so advised the youths and one officer testified that he would have chased them if they left - One youth purportedly volunteered that they had just sold marijuana to the occupants of a vehicle that police observed leaving the parking lot - The youths were arrested - A search disclosed cash and packages of marijuana - The youths applied to exclude the evidence under s. 24(2) of the Charter, alleging an arbitrary detention (s. 9) and denial of their right to counsel (s. 10(b)) - The Nova Scotia Youth Justice Court dismissed the application - The youths failed to prove that they were detained when the alleged statement was made - Although the requisite police direction or demand could be inferred on the evidence, neither youth testified that they felt compelled to stay and answer the police questions (i.e., psychologically detained) - Absent that testimony, and on the basis of the evidence presented, an inference of detention could not be made - Absent a detention, no right to counsel arose at the time the statement was made.

Civil Rights - Topic 4613

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

Cases Noticed:

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, refd to. [para. 13].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 14].

R. v. Hufsky - see R. v. Teske (P.).

R. v. Teske (P.) (2005), 202 O.A.C. 239 (C.A.), refd to. [para. 14].

R. v. Bazinet (1986), 14 O.A.C. 15 (C.A.), refd to. [para. 15].

R. v. K.B. (2004), 184 Man.R.(2d) 291; 318 W.A.C. 291 (C.A.), refd to. [para. 15].

R. v. Grant (D.) (2006), 213 O.A.C. 127 (C.A.), refd to. [para. 15].

R. v. Hawkins (J.G.), [1993] 2 S.C.R. 157; 151 N.R. 176; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179, refd to. [para. 16].

R. v. Calder (S.D.), [2004] O.A.C. Uned. 64 (C.A.), refd to. [para. 17].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 17].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 17].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113 (C.A.), refd to. [para. 17].

R. v. Lewis (M.D.) (2007), 250 N.S.R.(2d) 283; 796 A.P.R. 283; 2007 NSCA 2, dist. [para. 17].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 18].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161 (Sup. Ct.), refd to. [para. 19].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139 (C.A.), refd to. [para. 19].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 346 W.A.C. 240 (C.A.), refd to. [para. 19].

R. v. Pangman (W.G.) et al. (2000), 146 Man.R.(2d) 191 (Q.B.), refd to. [para. 19].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71 (C.A.), refd to. [para. 19].

R. v. Rajaratnam (M.) (2006), 397 Man.R.(2d) 126; 384 W.A.C. 126 (C.A.), dist. [para. 20].

Counsel:

David Greener, for the Crown;

Chris Manning, for the accused, M.R.;

Stephen Mattson, Q.C., for the accused, D.S.

This application was heard on January 1 and February 15, 2007, at Kentville, N.S., before Tufts, P.C.J., of the Nova Scotia Youth Justice Court, who delivered the following judgment orally on May 24, 2007.