R. v. Farrah (D.),

• Jurisdiction: Manitoba
• Judge: Freedman, Chartier and MacInnes, JJ.A.
• Neutral Citation: 2011 MBCA 49
• Citation: 2011 MBCA 49,(2011), 268 Man.R.(2d) 112 (CA),[2011] 12 WWR 694,274 CCC (3d) 54,87 CR (6th) 93,[2011] MJ No 200 (QL),268 Man R (2d) 112,(2011), 268 ManR(2d) 112 (CA),268 Man.R.(2d) 112,[2011] M.J. No 200 (QL),268 ManR(2d) 112
• Date: 08 December 2010
• Court: Court of Appeal (Manitoba)

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112 (CA);

      520 W.A.C. 112

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JL.004

Her Majesty The Queen (respondent) v. David Farrah (accused/appellant)

(AR 09-30-07279; 2011 MBCA 49)

Indexed As: R. v. Farrah (D.)

Manitoba Court of Appeal

Freedman, Chartier and MacInnes, JJ.A.

June 28, 2011.

Summary:

The accused was charged with 13 offences, including robbery and discharging a firearm. Asserting a breach of s. 8 of the Charter, he sought the exclusion of certain evidence under s. 24(2) of the Charter.

The Manitoba Court of Queen's Bench, in a decision reported at (2009), 238 Man.R.(2d) 83, dismissed the application. The trial proceeded.

The Manitoba Court of Queen's Bench, in a decision reported at (2009), 242 Man.R.(2d) 130, convicted the accused of 12 offences and acquitted him of one offence. He received a total sentence of seven years' imprisonment, less pre-sentence custody credit. The accused appealed from the conviction and applied for leave to appeal from the sentence.

The Manitoba Court of Appeal dismissed the conviction appeal, allowed the application for leave to appeal from the sentence and dismissed the sentence appeal.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Police received reports of an attempted robbery involving a sawed-off shotgun - A police dog "hot-tracked" a suspect to suite 12 in an apartment building - The accused, who was inside, was detained - The accused indicated that he was moving out of suite 16 across the hall - A search of suite 16 revealed items allegedly involved in the offences, including a sawed-off shotgun - The accused was arrested and charged with a number of offences - At trial, he asserted that the warrantless search of suite 16 constituted a breach of s. 8 of the Charter - The trial judge found a breach of s. 8, but refused to exclude the evidence and convicted the accused - He appealed regarding the non-exclusion of the evidence - The Crown raised the issue of whether the trial judge had erred in finding a Charter violation - The Manitoba Court of Appeal held that the trial judge had "erred in law by conflating, in her 'justifiability' analysis, the common law police duty to ensure public and police safety with any ancillary action that may have been required following the entry (arresting suspects)" - Whether the police believed that they had grounds to arrest was not determinative of whether they were justified to enter the suite - What mattered was, first, whether the warrantless entry "fell within the general scope" of any duty imposed by law or recognized at common law and, second, if it did, whether the execution of that duty was reasonable - The police had a common law duty to protect life and property - Where the main reason for entering suite 16 was to address public and police safety concerns, that action fell within the general scope of the common law duty - Further, the police had reasonable grounds for their concern - See paragraphs 26 to 41.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Police received reports of an attempted robbery involving a sawed-off shotgun - A police dog "hot-tracked" a suspect to suite 12 in an apartment building - The accused, who was inside, was detained - The accused indicated that he was moving out of suite 16 across the hall - A search of suite 16 revealed items allegedly involved in the offences, including a sawed-off shotgun - The accused was arrested and charged with a number of offences - At trial, he asserted that the warrantless search of suite 16 constituted a breach of s. 8 of the Charter - The trial judge found a breach of s. 8, but refused to exclude the evidence and convicted the accused - He appealed regarding the non-exclusion of the evidence - The Crown raised the issue of whether the trial judge had erred in finding a Charter violation - The Manitoba Court of Appeal held that there was no breach of s. 8 - The police had reasonable grounds to be concerned for public and officer safety - The forced entry into suite 16 was a justifiable use of police powers to address those concerns - The purpose of the entry was limited to clearing the suite of any persons who might cause harm - It was reasonable to limit the interference with the accused's privacy to a search of any part of the suite that might provide a space for a person to hide - One of the places searched was a closet that was large enough to hide a person - That was where the shotgun was found - The search was conducted in a reasonable manner - See paragraphs 42 to 52.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See both Civil Rights - Topic 1556 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police received reports of an attempted robbery involving a sawed-off shotgun - A police dog "hot-tracked" a suspect to suite 12 in an apartment building - The accused, who was inside, was detained - The accused indicated that he was moving out of suite 16 across the hall - A search of suite 16 revealed items allegedly involved in the offences, including a sawed-off shotgun - The accused was arrested and charged with a number of offences - Asserting a violation of s. 8 of the Charter, the accused sought exclusion of the evidence found in suite 16 - The trial judge found that there was a breach of s. 8 in the warrantless search of suite 16, but declined to exclude the evidence - The exclusion of the evidence under s. 24(2) of the Charter would bring the administration of justice into disrepute - While there was a s. 8 breach, it was not due to concerns about the objective reasonableness of the officers' conduct - They acted in good faith - The search was not particularly obtrusive - The evidence was not conscriptive and was essential to the Crown's case - The accused was convicted - On his appeal, the Crown raised the issue of whether the trial judge had erred in finding a Charter violation - The Manitoba Court of Appeal, having found that there was no breach of s. 8, indicated that, even if there had been, the court would not have interfered with the trial judge's conclusion under s. 24(2) - A judge's s. 24(2) decision attracted considerable deference - Here, the judge considered the appropriate factors and her findings were reasonable - See paragraphs 53 to 59.

Civil Rights - Topic 8411

Canadian Charter of Rights and Freedoms - Criminal proceedings - Appeals - [See Civil Rights - Topic 8599 ].

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The trial judge found that the accused's rights under s. 8 of the Charter had been breached, but refused to exclude the evidence - The accused was convicted - He appealed regarding the non-exclusion of the evidence - The Crown raised the issue of whether the trial judge had erred in finding a Charter violation - The Manitoba Court of Appeal discussed the standard of review - When examining a judge's decision on whether a Charter breach occurred, the appellate court would review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application - This raised questions of law and the standard of review was correctness - The appellate court would then review the evidentiary foundation which formed the basis for the judge's decision to see whether there was an error - On this part of the review, the judge's decision was entitled to more deference and, absent palpable and overriding error, the facts as found by the judge should not be disturbed - The appellate court would also examine the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfied the correct legal test - In the criminal law context, this was a question of law and the standard of review was correctness - The decision on whether to exclude under s. 24(2) of the Charter was an admissibility of evidence issue which was a question of law - However, because this determination required the judge to exercise some discretion, "considerable deference" was owed to the judge's s. 24(2) assessment when the appropriate factors had been considered - See paragraph 7.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The narrow issue on the accused's appeal from his sentence on robbery-related convictions was whether the trial judge had erred in calculating the accused's credit for pre-sentence custody - The accused was arrested on the robbery-related charges - After spending 170 days in custody, he was released on bail - He was then arrested on fraud charges and for breaching his recognizance on the robbery charges - He was denied bail and his previous release order was vacated - He was held in custody for 595 days before sentencing - The trial judge credited the accused on a 2:1 basis for the first period of custody (170 days) - Regarding the second period of 595 days, the trial judge noted that the robbery charges were more serious than the fraud-related charges - She was satisfied that most, though not all, of the second period of custody should be attributed to the robbery charges - She reduced the period in custody for which the accused would be entitled to credit by 25% - Instead of giving credit on a 2:1 basis for 75% of the second period in custody, she gave the accused credit on a 1.5:1 basis - The result was the same - The Manitoba Court of Appeal dismissed the accused's appeal - The determination of the pre-sentence custody credit award was discretionary and subject to deference - The trial judge's approach was not unreasonable nor could it be said that her exercise of discretion was wrong - See paragraphs 60 to 71.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See Criminal Law - Topic 5848.2 ].

Police - Topic 3186

Powers - Search - Private property - [See both Civil Rights - Topic 1556 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 4].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 251 C.C.C.(3d) 151; 2010 BCCA 11, refd to. [para. 4].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 7].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 7].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 8].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 2008 MBCA 110, refd to. [para. 8].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 8].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 8].

R. v. Hunter (1980), 58 C.C.C.(2d) 190 (Ont. C.A.), refd to. [para. 22].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 22].

R. v. Smith (1986), 38 Man.R.(2d) 184 (C.A.), refd to. [para. 23].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 23].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, refd to. [para. 23].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 26].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 26].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 27].

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. 28].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 28].

R. v. Gomboc (D.J.), [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 28].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 30].

R. v. Tereck (R.S.) (2008), 228 Man.R.(2d) 260; 427 W.A.C. 260; 2008 MBCA 90, refd to. [para. 30].

R. v. Buors (C.J.) (2004), 189 Man.R.(2d) 118; 2004 MBQB 249, refd to. [para. 30].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 31].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 31].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 40].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 40].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 41].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176 (C.A.), refd to. [para. 41].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 161 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 44].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 44].

R. v. Felawka, [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241, refd to. [para. 44].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, dist. [para. 47].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 55].

R. v. Wilson (R.) (2008), 240 O.A.C. 59; 236 C.C.C.(3d) 285; 2008 ONCA 510, refd to. [para. 60].

R. v. R.K.A. (2006), 384 A.R. 222; 367 W.A.C. 222; 208 C.C.C.(3d) 74; 2006 ABCA 82, refd to. [para. 66].

R. v. Greaves (J.M.) (2007), 245 B.C.A.C. 248; 405 W.A.C. 248; 2007 BCCA 430, refd to. [para. 69].

Authors and Works Noticed:

Canadian Bar Association, Code of Professional Conduct (2009), c. 9, Commentary 11 [para. 21].

Law Society of Manitoba, Code of Professional Conduct (2010), c. 4, rule 4.01(1) [para. 22].

Counsel:

R.T. Amy, for the appellant;

C.A. Vanderhooft, for the respondent.

This application for leave to appeal and these appeals were heard on December 8, 2010, by Freedman, Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. On June 28, 2011, Chartier, J.A., delivered the following judgment for the court.