R. v. Dhillon (K.), (2011) 263 Man.R.(2d) 14 (QB)

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 06, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 263 Man.R.(2d) 14 (QB);2011 MBQB 4

R. v. Dhillon (K.) (2011), 263 Man.R.(2d) 14 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JA.035

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

(CR 09-01-29299; 2011 MBQB 4)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

January 6, 2011.

Summary:

A police officer inspected the accused's commercial transport truck regarding irregularities in his log books. The officer found drugs in the truck's sleeper berth. The accused was charged with trafficking and possession for the purpose of trafficking in cocaine. The accused intended to argue that the search breached s. 8 of the Charter and justified an exclusion of evidence under s. 24(2). The accused had filed an application for third party disclosure seeking records and particulars of searches of sleeping berths of transport trucks which were conducted by the inspecting officer on the basis that it was relevant to the exclusion of evidence under s. 24(2). The Crown requested that the voir dire be bifurcated (the court hear evidence and argument respecting s. 8 and rule on that issue prior to hearing evidence and argument respecting s. 24(2)). The Crown argued that it was premature to proceed with the disclosure application before the voir dire commenced because, as the evidence sought in the disclosure application related only to s. 24(2), the application would be unnecessary if the court found no s. 8 breach.

The Manitoba Court of Queen's Bench, in a decision reported at 259 Man.R.(2d) 55, dismissed the bifurcation application. The application for third party disclosure proceeded.

The Manitoba Court of Queen's Bench dismissed the disclosure application. The accused failed to established that the requested records were likely relevant to his defence.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - A police officer inspected the accused's commercial transport truck regarding irregularities in his log books - The officer found drugs in the truck's sleeper berth - The accused was charged with trafficking and possession for the purpose of trafficking in cocaine - The accused intended to argue that the search breached s. 8 of the Charter and justified an exclusion of evidence under s. 24(2) - He alleged that the officer did not have lawful authority to search the sleeper berth as the regulations which governed inspections of commercial vehicles to restrict the officer's authority to search commercial vehicles had been amended more than eight months prior to the search - The accused applied for third party disclosure seeking records and particulars of searches of sleeping berths of transport trucks which were conducted by the officer - He argued that the records were relevant to the s. 24(2) analysis because they would show a pattern of abuse by the officer - The Manitoba Court of Queen's Bench dismissed the application - The fact that not all of the officer's searches would be recorded did not detract from the relevance of those records that did exist - However, the accused failed to establish that the requested records were likely relevant to his defence - He did not allege deliberate misconduct - Therefore, the number of searches of sleeper berths conducted by the officer before he learned of the change in the law was of minimal relevance to the s. 24(2) analysis - Without questioning the officer on the circumstances surrounding each search, the basis for the search would not be clear - Such an examination could sidetrack the trial into an assessment of collateral issues.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Criminal Law - Topic 129 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See Criminal Law - Topic 129 ].

Police - Topic 2212

Duties - General duties - Disclosure of information - [See Criminal Law - Topic 129 ].

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 5].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 8].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 8].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 9].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 18].

R. v. Khan, [2004] O.J. No. 3811 (Sup. Ct.), refd to. [para. 24].

R. v. Ngo (P.D.) et al. (2006), 204 Man.R.(2d) 184; 2006 MBQB 143, refd to. [para. 24].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 32].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 34].

R. v. Fitch (M.J.) (2006), 279 Sask.R. 310; 372 W.A.C. 310; 2006 SKCA 80, leave to appeal dismissed (2006), 363 N.R. 394; 289 Sask.R. 330; 382 W.A.C. 330 (S.C.C.), refd to. [para. 36].

Counsel:

Judith S. Kliewer, for the Crown;

Scott D. Farlinger, for the RCMP;

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

This application was heard by Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 6, 2011.