R. v. Dhillon (K.), 2012 MBQB 39

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 02, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 39;(2012), 274 Man.R.(2d) 203 (QB)

R. v. Dhillon (K.) (2012), 274 Man.R.(2d) 203 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. FE.034

Her Majesty The Queen v. Kuljinderjit Dhillon (accused/applicant)

(CR 09-01-29299; 2012 MBQB 39)

Indexed As: R. v. Dhillon (K.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

February 2, 2012.

Summary:

The accused was charged with trafficking and possession for the purpose of trafficking in cocaine. The cocaine was found by an RCMP officer in the sleeper berth of the accused's truck while inspecting the truck after finding irregularities in the accused's log books. The accused alleged that the drugs were seized in a manner that violated his ss. 8, 9 and 10 Charter rights and should be excluded under s. 24(2) of the Charter. At issue was whether the officer had lawful authority to inspect the sleeper berth of the accused's truck.

The Manitoba Court of Queen's Bench held that s. 241.1 of the Highway Traffic Act (HTA) authorized the search of the sleeper berth for compliance with any part of the HTA or regulations under it, including the obligation to keep log books. As there was authority to search the sleeper berth of the accused's truck, there was no breach of s. 8 of the Charter. As there was legislative authority to inspect the vehicle for compliance with the HTA, there was also authority to detain for the purposes of carrying out that inspection and there was no breach of s. 9 of the Charter. Since the defence argument with respect to a breach of s. 10 of the Charter was premised on the illegality of the detention and inspection, the court did not consider it further. Even if the court was wrong in concluding that there was authority to inspect the vehicle under s. 241.1 the HTA, it would not have excluded the evidence of the drugs under s. 24(2) of the Charter.

Carriers - Topic 1105

Federal legislation - Regulation of carriers - General - Mandatory keeping and production of records - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - The accused was charged with trafficking and possession for the purpose of trafficking in cocaine - The cocaine was found by an RCMP officer in the sleeper berth of the accused's truck while inspecting the truck after finding irregularities in the accused's log books - The Crown argued that the search of the sleeper berth of the truck was authorized under s. 241.1 of the Highway Traffic Act (HTA) - The defence argued that searches of the sleeper berth of a truck fell within s. 241.1(3) of the HTA, which prohibited the search of a "dwelling place" without a warrant or the consent of the occupant - The Manitoba Court of Queen's Bench held that "dwelling place" in s. 241.1(3) did not include the sleeper berth of a truck - The court concluded that s. 241.1 of the HTA authorized the search of the sleeper berth for compliance with any part of the HTA or regulations under it, including the obligation to keep log books - As there was authority to search the sleeper berth of the accused's truck, there was no breach of s. 8 of the Charter - Since there was legislative authority to inspect the vehicle for compliance with the HTA, there was also authority to detain for the purposes of carrying out that inspection and there was no breach of s. 9 of the Charter - Since a defence argument with respect to a breach of s. 10 of the Charter was premised on the illegality of the detention and inspection, there was no need to consider it further - Even if the court was wrong in concluding that there was authority to inspect the vehicle under s. 241.1 the HTA, it would not have excluded the evidence of the drugs under s. 24(2) of the Charter - See paragraphs 25 to 58.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1651 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The accused was charged with trafficking and possession for the purpose of trafficking in cocaine - The cocaine was found by an RCMP officer in the sleeper berth of the accused's truck while inspecting the truck after finding irregularities in the accused's log books - The Crown argued that falsifying log books was an offence for which the accused could have been arrested - Therefore, the search of the cab was justified as incident to arrest even though it preceded the arrest - The Crown relied on R. v. DeBot as authority for the proposition that a search may be a lawful incident to arrest where it precedes the arrest if there were reasonable grounds for the arrest before the search - The Manitoba Court of Queen's Bench stated that "[the accused] was never arrested or charged for falsifying his log books. He was arrested for possessing cocaine, something which the officer had no suspicion of prior to the search. As Martin, J.A., said in DeBot, a search cannot precede an arrest and then serve as its justification" - See paragraphs 22 to 24.

Motor Vehicles - Topic 2007

Regulation of vehicles and traffic - General - Commercial vehicles - Daily logs - [See Civil Rights - Topic 1651 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Criminal Law - Topic 3147 ].

Sales and Service Taxes - Topic 2783

Gasoline and motive fuel tax - Enforcement - Search and seizure - The accused was charged with trafficking and possession for the purpose of trafficking in cocaine - The cocaine was found by an RCMP officer in the sleeper berth of the accused's truck while inspecting the truck after finding irregularities in the accused's log books - The Crown argued that because of the accused's failure to display International Fuel Tax Agreement (IFTA) decals, officer Walkden was authorized to inspect the truck under s. 22 of the Tax Administration and Miscellaneous Taxes Act (TAMTA), which authorized inspections for compliance with tax statutes - The Manitoba Court of Queen's Bench stated that "As I find that the purpose of Walkden's search was not related to compliance with IFTA, s. 22 of TAMTA does not provide authority for it" - See paragraphs 16 to 21.

Words and Phrases

Dwelling place - The Manitoba Court of Queen's Bench held that the term "dwelling place" in s. 241.1(3) of the Highway Traffic Act, S.M. 1985-86, c. 3; C.C.S.M., c. H-60, did not include the sleeper berth of a truck - See paragraphs 34 to 46.

Cases Noticed:

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. 8].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 12].

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. 14].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), affd. [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 22].

Belanger v. The King (1916), 54 S.C.R. 265, refd to. [para. 32].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 32].

Public Utilities Commission of Brantford v. Brantford (City) (1998), 108 O.A.C. 24; 36 O.R.(3d) 419 (C.A.), refd to. [para. 32].

R. v. Bolczak (P.) (2005), 198 Man.R.(2d) 1; 2005 MBQB 56, consd. [para. 35].

R. v. Kenyon (J.B.) (2009), 246 Man.R.(2d) 141; 2009 MBQB 259, affd. (2010), 258 Man.R.(2d) 20; 499 W.A.C. 20; 2010 MBCA 70, consd. [para. 36].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 42].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 44].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 44].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241, refd to. [para. 44].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 50].

Statutes Noticed:

Highway Traffic Act, S.M. 1985-86, c. 3; C.C.S.M., c. H-60, sect. 241.1 [para. 30].

Tax Administration and Miscellaneous Taxes Act, R.S.M. 1987, c. R-150; C.C.S.M., c. T-2, sect. 22 [para. 16].

Counsel:

Judith S. Kliewer, for the Crown;

Sheldon E. Pinx, Q.C., for the accused.

This voir dire was heard before Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 2, 2012.