R. v. Doucette (W.), (1993) 121 N.S.R.(2d) 163 (ProvCt)

• Judge: Batiot, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 08, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 121 N.S.R.(2d) 163 (ProvCt)

R. v. Doucette (W.) (1993), 121 N.S.R.(2d) 163 (ProvCt);

  335 A.P.R. 163

MLB headnote and full text

Her Majesty The Queen (respondent) v. Wayne Doucette

(applicant)

Indexed As: R. v. Doucette (W.)

Nova Scotia Provincial Court

Batiot, P.C.J.

January 8, 1993.

Summary:

An accused was convicted for possession of narcotics for the purpose of trafficking. A voir dire was held to determine if the ac­cused's ss. 7 and 8 Charter rights to secur­ity against unreasonable search and seizure were breached and if the evidence seized pursuant to the search ought to have been excluded under s. 24.

The Nova Scotia Provincial Court con­cluded that the accused's right to be secure from unreasonable search and seizure was not breached.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - The Nova Scotia Provincial Court concluded that the issuance and execution of a search warrant and the seizure and detention of an al­legedly illegal matter and a lawful gun collection did not individually or collec­tively offend the accused's ss. 7 and 8 Charter rights to be secure from unreas­on­able search and seizure.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - [See Crimi­nal Law - Topic 3054 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - Unreasonable search and seizure - What constitutes - [See Crimi­nal Law - Topic 3093 ].

Civil Rights - Topic 1403

Security of the person - Law enforcement - Search warrants - [See Criminal Law - Topic 3093 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Criminal Law - Topic 3093 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - [See first Civil Rights - Topic 1217 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - [See Criminal Law - Topic 3054 ].

Civil Rights - Topic 1649

Property - Search and seizure - Detention of things seized - [See Criminal Law - Topic 3170 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Ex­ecution of - General - Police believed that a suspected drug dealer was heavily armed - Pursuant to a search warrant, officers, one armed with a machine gun, busted through the accused's apartment door - They iden­tified themselves - A masked officer screamed at the accused and pointed a revolver in his face - The accused froze, saw the bullets and got on the floor - They handcuffed him and took him to the station wearing shorts, a muscle shirt and sneakers - They smashed the lock on a trunk, forced open a briefcase and seized an allegedly illegal matter and a lawful gun collection - The Nova Scotia Provin­cial Court concluded that the force used was not excessive and did not violate the accused's right to be secure from un­rea­sonable search and seizure.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - An officer successfully applied for a search warrant deposing that he had "rea­sonable grounds for believing" and "did believe" that there was a narcotic on the premises used in the commission of an offence - He deposed that two complaints about drug dealers had been made to the police drug section - Also, a fellow officer had received infor­ma­tion from a reliable and confiden­tial source who had knowl­edge of the presence of drugs within the previous 24 hours - The source's knowledge was personal, quite detailed and confirmed through other investigatory sources - The Nova Scotia Provincial Court affirmed the issuance of the search warrant on the "totality of the circum­stances" - See paragraphs 5 to 16.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 3093 ].

Criminal Law - Topic 3170

Special powers - Power of seizure - De­tention or return of things seized - An accused was suspected of drug dealing - Pursuant to a search warrant, officers searched his premises and seized an al­legedly illegal matter and a lawful gun collection - One rifle seized had two magazines, was unlocked and ready for use - The police alleged that the gun seizure was partly for public protection as the premises were to be vacant - Contrary to s. 103(7) of the Criminal Code, the guns were not returned within 30 days - The Nova Scotia Provincial Court concluded that the seizure of the guns did not breach the accused's Charter right to be secure from unreasonable search and seizure - Section 8 of the Charter was inap­plicable to their reten­tion - See para­graphs 28 to 37.

Cases Noticed:

R. v. Christianson (1986), 47 Sask.R. 143; 26 C.C.C.(3d) 391 (Q.B.), dist. [para. 6].

R. v. Zinck (1987), 76 N.B.R.(2d) 258; 192 A.P.R. 258; 32 C.C.C.(3d) 150 (C.A.), dist. [para. 7].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 60 C.C.C.(3d) 161, appld. [para. 9].

R. v. Innocente et al. (1991), 108 N.S.R.(2d) 54; 294 A.P.R. 54 (T.D.), affd. (1992) 113 N.S.R.(2d) 256; 309 A.P.R. 256 (C.A.), refd to. [para. 10].

R. v. Carroll and Barker (1989), 88 N.S.R.(2d) 165; 225 A.P.R. 165 (C.A.), refd to. [para. 16].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 73 C.R.(3d) 129; 45 C.R.R. 49; 52 C.C.C.(3d) 193, refd to. [para. 16].

R. v. Shea (1982), 1 C.C.C.(3d) 316; 38 O.R.(2d) 582; 142 D.L.R.(3d) 419 (H.C.), refd to. [para. 30].

R. v. Longtin (1983), 5 C.C.C.(3d) 12; 41 O.R.(2d) 545; 147 D.L.R.(3d) 604 (C.A.), refd to. [para. 30].

R. v. Munn (1990), 82 Nfld. & P.E.I.R. 296; 257 A.P.R. 296; 54 C.C.C.(3d) 397 (Nfld. T.D.), refd to. [para. 35].

R. v. Gimson (1990), 37 O.A.C. 243; 54 C.C.C.(3d) 232, affd. [1991] 3 S.C.R. 692; 152 N.R. 161; 62 O.A.C. 282; 69 C.C.C.(3d) 552, refd to. [para. 38].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343; 69 C.R.(3d) 235 (C.A.), refd to. [para. 39].

Statutes Noticed:

Constitution Act, 1982, sect. 7 [para. 4]; sect. 8 [paras. 4, 35, 37]; sect. 24(2) [para. 39].

Criminal Code, R.S.C. 1985, c. C-46, sect. 103 [para. 33]; sect. 103(2) [para. 32]; sect. 103(4), sect. 103(7) [para. 34].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 4(2), sect. 10 [paras. 5, 21, 38]; sect. 11 [paras. 21, 38]; sect. 12 [paras. 5, 38]; sect. 14 [paras. 21, 38].

Authors and Works Noticed:

Fontana, James A., The Law of Search and Seizure in Canada (3rd Ed. 1992), pp. 115 [para. 6]; 255 [para. 35].

Counsel:

David M. Meadows, for the respondent;

D. Timothy Gabriel, for the applicant.

This voir dire was heard at Annapolis Royal, Nova Scotia, on January 8, 1993, before Batiot, P.C.J., of the Nova Scotia Provincial Court, who delivered judgment for the court on the same date.