R. v. Day (R.), (2014) 349 Nfld. & P.E.I.R. 1 (NLCA)

• Judge: Welsh, Rowe and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 17, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 349 Nfld. & P.E.I.R. 1 (NLCA);2014 NLCA 14

R. v. Day (R.) (2014), 349 Nfld. & P.E.I.R. 1 (NLCA);

    1085 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MR.020

Her Majesty the Queen (appellant) v. Ryan Paul Day (respondent)

(13/05; 2014 NLCA 14)

Indexed As: R. v. Day (R.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, Rowe and Hoegg, JJ.A.

March 11, 2014.

Summary:

The accused was charged with trafficking marijuana and possession for the purpose of trafficking. An issue arose as to whether the accused's rights under ss. 8 and 9 of the Charter were violated, and if so, whether the evidence seized should be excluded. A voir dire was held.

The Newfoundland and Labrador Provincial Court, in a decision reported 332 Nfld. & P.E.I.R. 122; 1030 A.P.R. 122, held that the accused's rights under both ss. 8 and 9 of the Charter were violated, and as a result the evidence seized was excluded under s. 24(2). The Crown appealed.

The Newfoundland and Labrador Court of Appeal, Rowe, J.A., dissenting, allowed the appeal and remitted the matter to the Provincial Court for a new trial.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Police - Topic 3185 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Police - Topic 3185 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Acting on an informer tip, the police arrested the accused without warrant for drug trafficking and found drugs upon searching his vehicle - The provincial court judge determined that neither subjective nor objective grounds existed for the arrest, resulting in Charter violations - The Crown appealed - The Newfoundland and Labrador Court of Appeal allowed the appeal - The court found that the police had reasonable grounds for the arrest (i.e., both the subjective and objective prongs of the R. v. Storrey (SCC 1990) test were met) and, therefore, the arrest was lawful - It followed that the accused was not arbitrarily detained (Charter, s. 9) - See paragraph 59.

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See both Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest - Without warrant - Reasonable and probable grounds - The Newfoundland and Labrador Court of Appeal stated that "... the determination of subjective belief in grounds for arresting a person results from application of the legal standard for subjective belief to the evidence. In situations where the determination is informed by a simple factual finding, that simple factual finding would be reviewable on a standard of palpable and overriding error. However, insofar as the determination calls for the application of a legal standard ([R. v.] Feeney [SCC 1997]) to evidence, the resulting determination is reviewable on a standard of correctness ([R. v.] Shepherd (SCC 2009]). If a trial judge applies a misunderstood notion of the test for subjective belief to the evidence or ignores material evidence in making his or her determination, he or she would be erring in law, and the resulting determination would be reviewable on a standard of correctness" - See paragraph 16.

Police - Topic 3063

Powers - Arrest - Without warrant - Reasonable and probable grounds - Acting on an informer tip, the police arrested the accused without warrant for drug trafficking and found drugs upon searching his vehicle - The provincial court judge determined that neither subjective nor objective grounds existed for the arrest, resulting in Charter violations - The Crown appealed - The Newfoundland and Labrador Court of Appeal allowed the appeal - The trial judge's failure to state and apply the legal standard for subjective belief set out in R. v. Feeney (SCC 1997) and her failure to consider the relevant evidence respecting the arresting officer's subjective belief was an error of law - The trial judge also erred by failing to apply the correct legal principles in analysing whether the officer's subjective grounds for the arrest were objectively reasonable - Application of the correct law to the evidence in this case showed that the arresting officer had a subjective belief in grounds to arrest the accused and his grounds were objectively reasonable - See paragraphs 17 to 58.

Police - Topic 3185

Powers - Search - Following arrest or detention - Acting on an informer tip, the police arrested the accused without warrant for drug trafficking and found drugs upon searching his vehicle - The provincial court judge determined that neither subjective nor objective grounds existed for the arrest, resulting in Charter violations - The Crown appealed - The Newfoundland and Labrador Court of Appeal allowed the appeal - The court found that the police had reasonable grounds for the arrest and, therefore, the arrest was lawful - The search of the vehicle was for a valid purpose (i.e., to discover evidence) - The search was carried out in a reasonable manner - Therefore, the search of the accused's car was lawfully conducted incident to his arrest and he suffered no breach of his s. 8 Charter rights - Thus, there was no reason to exclude the marijuana, cell phones and drug paraphernalia from the evidence at his trafficking trial - See paragraphs 60 to 66.

Cases Noticed:

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 8].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 10].

R. v. Warford (R.G.) (2001), 207 Nfld. & P.E.I.R. 263; 620 A.P.R. 263; 2001 NFCA 64, refd to. [para. 10].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 12].

R. v. Crocker (L.) (2009), 275 B.C.A.C. 190; 465 W.A.C. 190; 247 C.C.C.(3d) 193; 2009 BCCA 388, refd to. [para. 13].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 14].

R. v. Burke (A.) (1997), 153 Nfld. & P.E.I.R. 91; 475 A.P.R. 91 (Nfld. C.A.), refd to. [para. 14].

R. v. Hillgardener (A.R.) (2010), 477 A.R. 200; 483 W.A.C. 200; 2010 ABCA 80, refd to. [para. 15].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 18].

R. v. Bacon (J.D.) et al. (2010), 285 B.C.A.C. 108; 482 W.A.C. 108; 2010 BCCA 135, refd to. [para. 27].

R. v. Cheng - see R. v. Bacon (J.D.).

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 31].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 34].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 34].

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. 34].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 34].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 34].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 38 O.R.(3d) 540 (C.A.), refd to. [para. 37].

R. v. Burke (S.R.) (2011), 374 N.B.R.(2d) 255; 965 A.P.R. 255; 2011 NBCA 51, refd to. [para. 37].

R. v. Goodine (M.) (2006), 307 N.B.R.(2d) 178; 795 A.P.R. 178; 2006 NBCA 109, refd to. [para. 37].

Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), refd to. [para. 39].

R. v. McCabe (C.) (2008), 280 Nfld. & P.E.I.R. 250; 859 A.P.R. 250; 2008 NLCA 62, refd to. [para. 41].

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, refd to. [para. 60].

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. 60].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 83].

R. v. Hilts (M.K.) (1997), 203 A.R. 161 (Prov. Ct.), refd to. [para. 98].

R. v. Mori (P.), [2012] O.T.C. Uned. 3433; 2012 ONSC 3433, refd to. [para. 99].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1) [para. 17].

Counsel:

Andrew O. Brown, for the appellant;

Randolph J. Piercey, Q.C., for the respondent.

This appeal was heard on October 17, 2013, before Welsh, Rowe and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. The decision of the court was delivered on March 11, 2014, and the following opinions were filed: