R. v. Duong (T.),

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Southin and Rowles, JJ.A.
• Court: Court of Appeal (British Columbia)
• Citation: (2006), 228 B.C.A.C. 183 (CA),2006 BCCA 325
• Date: 28 June 2006

R. v. Duong (T.) (2006), 228 B.C.A.C. 183 (CA);

    376 W.A.C. 183

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JL.018

Regina (respondent) v. Thyro Duong (appellant)

(CA032887; 2006 BCCA 325)

Indexed As: R. v. Duong (T.)

British Columbia Court of Appeal

Finch, C.J.B.C., Southin and Rowles, JJ.A.

June 28, 2006.

Summary:

The accused pleaded guilty to two counts of possession of a controlled substance (cocaine and heroin) for the purpose of trafficking after the trial judge dismissed his application to exclude evidence on Charter grounds. The accused appealed the dismissal of his Charter application, introducing evidence showing that he pleaded guilty unaware that it would affect his ability to appeal the Charter ruling.

The British Columbia Court of Appeal dismissed the appeal. The accused was not arbitrarily detained and the pat down search by police during investigative detention did not constitute an unreasonable search and seizure.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Police stopped to investigate what the accused was doing sitting in his parked vehicle for over 20 minutes in an area of high incidence of property crime - Noting what appeared to be a stolen stereo and the accused's nervous demeanour, the police placed the accused under investigative detention for stolen property - When the accused exited the vehicle, the police perceived his stance to be aggressive - The accused was handcuffed and was subjected to a quick pat down search for weapons - The accused shifted his body in an apparent attempt to keep the police from finding something - Drugs were discovered on the accused - The British Columbia Court of Appeal held that the trial judge did not err in finding that the accused was not arbitrarily detained (Charter, s. 9) or subjected to an unreasonable search and seizure (s. 8) - Accordingly, there was no error in not excluding the evidence - The officer had articulable cause to detain the accused for investigative purposes - The police were entitled to conduct a protective pat down search for bona fide officer safety concerns - The search was reasonable notwithstanding that the accused was in handcuffs - See paragraphs 50 to 59.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1214].

Criminal Law - Topic 4229

Procedure - Pleas - Guilty plea - Variation of conviction on appeal - An accused pleaded guilty to the offences charged after the trial judge dismissed his Charter application to exclude evidence - The accused now appealed his conviction, submitting that he pleaded guilty mistakenly believing that he could still appeal the Charter ruling - The British Columbia Court of Appeal stated that a guilty plea was an acknowledgement of all of the legal elements necessary to constitute the offence and was meant to be unequivocal - The court stated that "in view of the content of the [accused's] affidavit and the Crown's concession, I am satisfied that the appeal ought to go forward and a determination made on the issue of whether the trial judge erred in concluding that the detention and search of the [accused] did not infringe his rights under ss. 8 and 9 of the Charter" - See paragraphs 7 to 18.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1214].

Cases Noticed:

R. v. McNabb (1971), 4 C.C.C.(2d) 316 (Sask. C.A.), refd to. [para. 9].

R. v. Lucas (1983), 9 C.C.C.(3d) 71 (Ont. C.A.), refd to. [para. 9].

R. v. Fegan (J.J.) (1993), 62 O.A.C. 146; 80 C.C.C.(3d) 356; 13 O.R.(3d) 88 (C.A.), refd to. [para. 11].

R. v. Roberts (L.) (1998), 106 O.A.C. 308 (C.A.), refd to. [para. 11].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R.(3d) 514 (C.A.), refd to. [para. 12].

R. v. Malone (M.J.) (1999), 128 B.C.A.C. 315; 208 W.A.C. 315; 1999 BCCA 466, refd to. [para. 13].

R. v. Carter (J.L.) (2003), 190 B.C.A.C. 178; 311 W.A.C. 178; 2003 BCCA 632, refd to. [para. 14].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 42].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298; 50 B.C.L.R.(3d) 109 (C.A.), refd to. [para. 52].

R. v. Le (N.O.) (2001), 160 B.C.A.C. 46; 261 W.A.C. 46; 160 C.C.C.(3d) 146; 2001 BCCA 658, refd to. [para. 52].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 174 C.C.C.(3d) 406 (C.A.), refd to. [para. 54].

Counsel:

C.S. Johnson, for the appellant;

P. Riley, for the respondent.

This appeal was heard on May 10, 2006, at Vancouver, B.C., before Finch, C.J.B.C., Southin and Rowles, JJ.A., of the British Columbia Court of Appeal.

On June 28, 2006, Rowles, J.A., delivered the following judgment for the Court of Appeal.