R. v. Dhillon (K.), (2010) 259 Man.R.(2d) 55 (QB)

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 06, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 259 Man.R.(2d) 55 (QB);2010 MBQB 222

R. v. Dhillon (K.) (2010), 259 Man.R.(2d) 55 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. OC.018

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

(CR 09-01-29299; 2010 MBQB 222)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

October 6, 2010.

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 a motion 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 motion before the voir dire commenced because, as the evidence sought in the disclosure motion related only to s. 24(2), the motion would be unnecessary if the court found no s. 8 breach.

The Manitoba Court of Queen's Bench dismissed the bifurcation application.

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure (incl. bifurcation) - The Manitoba Court of Queen's Bench stated that, as a matter of practice in Manitoba, voir dires regarding the admissibility of evidence under the Charter were rarely bifurcated into a two phase hearing - The court was unable to find any cases regarding the merits of bifurcating a Charter voir dire - The process to be followed in a Charter voir dire, including whether to bifurcate, fell within the judge's discretion in decisions on trial management - It was in the interests of the administration of justice that the court had all relevant evidence before it in deciding the issues on the voir dire - Bifurcation could lead to an artificial division of the evidence, thereby depriving the court of the ability to consider relevant evidence - In most cases, in the absence of special circumstances, bifurcating would be ill-advised - Bifurcation did not promote the efficient use of judicial resources and the timely determination of criminal proceedings - Rather, a two phase hearing prolonged the proceedings and could unnecessarily duplicate the evidence - It could also prevent the court from having the benefit of relevant evidence in making the decision on phase one - The party who requested bifurcation should provide compelling reasons for a divided hearing - See paragraphs 10 to 12, 23 and 26.

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure (incl. bifurcation) - 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 had filed a motion for third party disclosure seeking records and particulars of searches of sleeping berths of transport trucks which were conducted by the officer on the basis that it was relevant to the exclusion of evidence - 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 motion before the voir dire commenced because, as the evidence sought in the disclosure motion related only to s. 24(2), the motion would be unnecessary if the court found no s. 8 breach - The Crown conceded that there was no concern about the resources necessary to comply with a disclosure order -The Manitoba Court of Queen's Bench refused the bifurcation request - Requiring the disclosure motion to proceed before the voir dire might create an unnecessary step - However, if a s. 8 breach was found, bifurcating the voir dire would also create an additional step - Moreover, it appeared that the main, and perhaps only, witness at both phases of the voir dire would be the officer - So regardless of how much one tried to tailor the evidence to the specific issue, there would undoubtedly be overlap in the two phases of the voir dire - There was merit to the accused's s. 8 Charter argument - A s. 24(2) analysis would likely be required - Bifurcation would not save unnecessary steps - It would delay the process further.

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 6].

R. v. Duncan (W.S.) (2002), 168 Man.R.(2d) 301; 2002 MBQB 275, affd. (2004), 187 Man.R.(2d) 212; 330 W.A.C. 212; 2004 MBCA 64, refd to. [para. 10].

R. v. Hanano (S.) (2007), 210 Man.R.(2d) 250; 2007 MBQB 9, refd to. [para. 10].

R. v. Hanano (S.) (2007), 219 Man.R.(2d) 124; 2007 MBQB 234, refd to. [para. 10].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481 (C.A.), refd to. [para. 13].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113 (C.A.), leave to appeal dismissed (1997), 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80 (S.C.C.), refd to. [para. 16].

R. v. Lising (R.) et al. (2005), 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 17].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

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. 17].

R. v. Ngo (P.D.) et al. (2006), 204 Man.R.(2d) 184; 2006 MBQB 143, refd to. [para. 31].

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. 36].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 38].

Counsel:

Judith S. Kliewer, for the Crown;

Scott D. Farlinger, for the RCMP;

Sheldon 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 decision on October 6, 2010.