R. v. Flood (D.W.), (2007) 266 Nfld. & P.E.I.R. 203 (NLPC)

• Judge: Kennedy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: March 07, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2007), 266 Nfld. & P.E.I.R. 203 (NLPC)

R. v. Flood (D.W.) (2007), 266 Nfld. & P.E.I.R. 203 (NLPC);

    808 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. AP.021

Her Majesty the Queen v. Daryl Willis Flood

(No. 0604A-00484 and 0605A-00104)

Indexed As: R. v. Flood (D.W.)

Newfoundland and Labrador Provincial Court

Kennedy, P.C.J.

March 7, 2007.

Summary:

The accused was charged with offences under the Controlled Drug and Substances Act. He applied for the exclusion of evidence obtained during a search of his motor vehicle on the grounds that his rights under ss. 7, 8, 9 and 10 of the Charter had been breached.

The Newfoundland and Labrador Provincial Court dismissed the application.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See third Civil Rights - Topic 3603 ].

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The accused asserted that his s. 8 Charter rights were breached - The Newfoundland and Labrador Provincial Court held that the accused voluntarily consented to relinquish his s. 8 Charter rights respecting the initial search - The accused knew what he was doing and he was aware of the significance of his act and the use the police would be able to make of the consent - The accused was a well educated person and had a general understanding of the jeopardy in which he found himself - He understood in a general way the purpose of the Consent to Search and its consequences if something was found - He knew he had the right to stop the search at any time - He knew what he was consenting to and agreed - His apparent agreement was further shown in the cooperative manner in which he dealt with the officers - See paragraphs 33 to 40.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the accused's s. 10(b) Charter right to counsel had been breached where the officers had not informed the accused of his right to counsel prior to executing the Consent to Search form - However, the information available to the accused was sufficiently explained in that the accused was fully aware of the options and consequences so as to enable him to make an informed decision - Although the accused was not given his right to counsel, it did not appear to affect his ability to make an informed and meaningful decision - Although there was a technical breach of the accused’s Charter rights, it did not affect his informed consent and his ability and understanding in executing the Consent to Search form - See paragraph 51.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the accused’s s. 8 Charter rights were not breached by the continuation of the search after the accused withdrew his consent - Although it was a warrantless search which was presumed to be unreasonable, the police had reasonable grounds to detain the accused and to continue with the search after the withdrawal of his consent - The decision to continue the search was only made after the peace officers had smelled the marijuana - That, in a addition to the others factors, was sufficient to detain the accused and to continue with the search - See paragraph 58 to 68.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See both Civil Rights - Topic 1645 and Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the accused was arbitrarily detained contrary to s. 9 of the Charter - As a result of a hunch, the police became determined to search the vehicle and its occupants for drugs hopefully to obtain evidence of drug transportation, trafficking or possession - The officers would not have allowed the accused to leave the scene until the search was carried out - They were determined to address the "red flag" and were going to get to the bottom or clear up "the problem" - The accused was detained in order to accomplish this aim - His detention under these circumstances was not justified and therefore his s. 9 Charter rights were breached - See paragraphs 52 and 53.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that given the circumstances, the continuation of the search (after the officers smelled an odour of marijuana and the accused withdrew his consent) was based on reasonably objective criteria and facts that were reasonable and capable of being clearly expressed - Considering the evidence, the officers had reasonable grounds to suspect that the accused was the potential perpetrator of a crime and that evidence existed in the motor vehicle to substantiate that reasonable suspicion - Accordingly, the continued detention was not arbitrary and did not constitute a breach of the accused's s. 9 Charter rights - See paragraph 58 to 68.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - He was arrested, brought to the police detachment and held overnight while the officer obtained and executed a search warrant for a thorough search of the vehicle - The accused was charged with drug offences - The accused asserted that his arrest and overnight detention were a breach of his ss. 7 and 9 Charter rights - The Newfoundland and Labrador Provincial Court rejected the assertion - The police had reasonable and probable grounds to arrest the accused under ss. 495(1)(a) or 496(1)(b) of the Criminal Code or under the common law - There was no evidence that the police exercised their power of arrest in a capricious, despotic or unjustifiable, or an unreasonable manner - The accused's overnight detention was in compliance with s. 503 of the Code and the common law, was reasonable and did not breach his Charter rights - The police were genuinely carrying out an ongoing investigation and there was no unexplained delay - See paragraphs 92 to 111.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the initial stop of the accused for the investigation of a possible breach of the Highway Traffic Act was a stop for lawful purposes - When there was a lawful stop under the Highway Traffic Act, the accused was detained while the police obtained the necessary information about registration, insurance and licence - However, once the purpose of the stop was ended, the accused was no longer detained and was therefore free to leave without further detention by the police officers - See paragraph 32.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The officers arrested the accused and advised him of his right to counsel - The accused was charged with drug offences - The accused asserted that his s. 10(b) Charter right to counsel was violated because he was not given the opportunity to exercise that right without delay - Given the circumstances at the scene, the accused was only able to contact counsel at the police detachment, nearly three hours after the initial stop - The accused asserted he should have been given the opportunity to use the cell phone in the police cruiser - The Newfoundland and Labrador Provincial Court rejected the assertion - The cell phone in the police car was for the use of the police officers - They could not guarantee that the phone was secure and the privacy of the communication over the cellular network - Further, the police would not have been able to access the phone for emergency purposes if it was being used by the accused to contact his counsel - Further, the inability of the accused to get into the rear seat of the police vehicle would only permit the accused to use the cell phone in the front of the police vehicle or outside that vehicle - Again, there were considerable security issues if the accused was allowed to be alone in the front seat of the police car or had to be left alone outside the police car and outside of hearing distance - This could create a potential risk of escape - See paragraphs 77 to 86.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The officers arrested the accused and advised him of his right to counsel - The accused was charged with drug offences - The accused argued that his s. 10(b) Charter right to counsel was violated because he was not given the opportunity to exercise that right without delay - Given the circumstances at the scene, the accused was only able to contact counsel at the police detachment, nearly three hours after the initial stop - The Newfoundland and Labrador Provincial Court rejected the assertion - The police officers only delayed taking the accused to the police detachment until a police car able to physically accommodate the accused arrived and the arrival of a tow truck to tow the seized vehicle to a safe and secure place - The delay was related to the unique circumstances surrounding the stop - There was no evidence of any delay caused for the convenience of the police or the inconvenience of the accused - The delay was reasonable and was necessitated in order to transport the accused to the police detachment and safely secure and move the accused’s vehicle to a safe and secure place - The police took reasonable, rational, practicable and reasonably prompt steps to get the accused to a secure telephone so as to enable him to exercise his s. 10(b) rights and their actions were reasonable - The accused was informed of, and understood the reason for the delay - He knew he would be allowed to call his counsel on arrival at the detachment and this did, in fact, occur - See paragraphs 87 to 91.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See second Civil Rights - Topic 4604 ].

Civil Rights -Topic 4605.1

Right to counsel - General - Denial of - Effect on reasonableness of search - [See second Civil Rights - Topic 1645 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The accused asserted that his s. 10 Charter rights were breached where he was neither advised of his right to counsel nor given a police caution before executing the Consent to Search form and he was not informed that a criminal investigation was being started - The Newfoundland and Labrador Provincial Court agreed with the assertions - The officers should have advised the accused of his right to comply with the informational component of the right to counsel - See paragraphs 43 to 49.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that given the circumstances, the continuation of the search (after the officers smelled an odour of marijuana and the accused withdrew his consent) was reasonable and the detention was not arbitrary - However, as the officers had grounds to detain the accused and, in fact, he was detained, the officers should have advised the accused of his right to counsel before continuing the search - Their failure to do so was a continued breach of s. 10(b) of the Charter - See paragraphs 58 to 69.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See both Civil Rights - Topic 4608 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See both Civil Rights - Topic 4608 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for -Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the accused was not immediately informed of the true reasons for his continued detention after the Highway Traffic Act stop ended - This was a breach of s. 10(a) of the Charter - The information contained in the Consent to Search form arose from the Highway Traffic Act stop not the search and the accused was not informed that the initial information he provided to the police was being used to ground another investigation - He only knew that the information provided to the police was being used for further purposes, i.e. a search when presented with the Consent to Search form - Further, the officers did not tell the accused that they had commenced an investigation for drugs, only that drugs were a problem generally - See paragraphs 54 and 112.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police officers stopped a vehicle for possible breaches of the Highway Traffic Act - The officers noticed that the driver (the accused) and the passengers were very nervous, avoided eye contact and the answers given to questions were short and abrupt - Additionally, one of the officers remembered that the vehicle had been identified as a possible drug courier vehicle - The accused signed a Consent to Search form - The officers began the search - When they opened bags found in the trunk, they detected a strong odour of marijuana - At that point, the accused withdrew his consent, put the bags back in the trunk and closed the trunk - The officers concluded that they had reasonable and probable grounds to continue the search - They found large quantities of marijuana - The accused was charged with drug offences - The Newfoundland and Labrador Provincial Court held that the accused's ss. 9, 10(a) and 10(b) Charter rights had been breached - The offences were serious - The evidence was non-conscriptive, real and hard evidence and was crucial to the Crown’s case - Although there were several breaches, the fairness of the trial had not been compromised and the seriousness of the breaches was not of such a magnitude which warranted the exclusion of the evidence - The individual rights of the accused had to cede to the general societal expectation that even fundamental Charter rights, as important as they might be, should not be enforced at the expense of eroding public confidence in the reputation of the administration of justice - The court refused to exclude the evidence - See paragraphs 113 to 142.

Cases Noticed:

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, refd to. [para. 35].

R. v. Clement (N.) (1995), 83 O.A.C. 226; 100 C.C.C.(3d) 103 (C.A.), refd to. [para. 35].

R. v. Wills (1992), 52 O.A.C. 321; 12 C.R.(4th) 58; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 38].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404; 33 C.R.(4th) 147; 24 C.R.R.(2d) 51; 119 D.L.R.(4th) 74; 1994 CarswellNS 26, refd to. [para. 38].

R. v. Keats (1987), 67 Nfld. & P.E.I.R. 116; 206 A.P.R. 116; 39 C.C.C.(3d) 358 (Nfld. C.A.), refd to. [para. 39].

R. v. Bowers (1986), 45 Alta. L.R.(2d) 405 (Q.B.), refd to. [para. 39].

Mohammadi v. Canada, [2005] T.C.J. No. 428 (Tax C.C.), dist. [para. 44].

R . v. Bottle (B.E.), [2004] B.C.T.C. 1667 (S.C.), dist. [para. 44].

R. v. Jones (D.B.) (2002), 204 N.S.R.(2d) 290; 639 A.P.R. 290; 2002 NSSC 101, refd to. [para. 45].

R. v. Head (C.R.) (1994), 52 B.C.A.C. 121; 86 W.A.C. 121 (C.A.), refd to. [para. 45].

R. v. Chapman (D.J.) et al. (2002), 247 N.B.R.(2d) 263; 641 A.P.R. 263; 2002 NBPC 2, refd to. [para. 47].

R. v. Calderon (2004), 23 C.R.(6th) 1; 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 49].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 364 W.A.C. 240 (C.A.), refd to. [para. 51].

R. v. Francis, [2001] N.W.T.J. No. 8 (N.W.T.S.C.), refd to. [para. 51].

R. v. Cogan (W.D.) (1999), 218 N.B.R.(2d) 369; 558 A.P.R. 369 (T.D.), refd to. [para. 51].

R. v. Cox (J.) (1999), 210 N.B.R.(2d) 90; 536 A.P.R. 90; 132 C.C.C.(3d) 256 (C.A.), refd to. [para. 56].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. 60].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 134 C.C.C.(3d) 187 (C.A.), refd to. [para. 62].

R. v. Sievert (D.A.); R. v. Barron (J.R.), [2000] B.C.A.C. Uned. 197; 2000 BCCA 575, refd to. [para. 62].

R. v. Seney (S.D.) (1994), 47 B.C.A.C. 170; 76 W.A.C. 170; 91 C.C.C.(3d) 550 (C.A.), refd to. [para. 62].

R. v. Duong (C.Q.) et al. (2002), 162 B.C.A.C. 236; 264 W.A.C. 236; 162 C.C.C.(3d) 242 (C.A.), refd to. [para. 62].

R. v. Schulz (C.L.) (2001), 159 B.C.A.C. 146; 259 W.A.C. 146; 2001 BCCA 601, refd to. [para. 62].

R. v. Wills (1992), 52 O.A.C. 321; 12 C.R.(4th) 58; 70 C.C.C.(3d) 529; 34 M.V.R.(2d) 296; 9 C.R.R.(2d) 360; 7 O.R.(3d) 337; 1992 CarswellOnt 77 (C.A.), refd to. [para. 63].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 126 C.C.C.(3d) 62; 161 D.L.R.(4th) 331 (C.A.), refd to. [para. 68].

R. v. Luu (T.T.T.) (2006), 222 B.C.A.C. 275; 368 W.A.C. 275; 2006 BCCA 73, refd to. [para. 69].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 70].

R. v. Sinclair (E.J.) (2005), 192 Man.R.(2d) 283; 340 W.A.C. 283, refd to. [para. 70].

R. v. Omelusik (T.Y.) (2003), 182 B.C.A.C. 315; 300 W.A.C. 315 (C.A.), refd to. [para. 70].

R. v. Ladouceur (M.J.), [2002] 9 W.W.R. 209; 223 Sask.R. 161; 277 W.A.C. 161; 2002 SKCA 73, refd to. [para. 71].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 72].

R. v. Nicolosi (J.) (1998), 110 O.A.C. 189; 127 C.C.C.(3d) 176 (C.A.), refd to. [para. 72].

R. v. Yague (D.C.) (2005), 371 A.R. 286; 354 W.A.C. 286; 2005 ABCA 140, refd to. [para. 72].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 79].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 79].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673; [1989] 1 W.W.R. 385; 37 C.R.R. 335; 1988 CarswellBC 699, refd to. [para. 81].

R. v. Lee, [1996] O.J. No. 2423 (C.J. Prov. Div.), refd to. [para. 81].

R. v. Nelson (1982), 3 C.C.C.(3d) 147, refd to. [para. 81].

R. v. Dombrowski (1985), 37 Sask.R. 259; 18 C.C.C.(3d) 164 (C.A.), refd to. [para. 81].

R v. Brownridge (1972), 18 C.R.N.S. 308 (S.C.C.), refd to. [para. 82].

R. v. Gyori (D.L.) (1993), 145 A.R. 183; 55 W.A.C. 183 (C.A.), leave to appeal refused (1994), 170 N.R. 346; 162 A.R. 79; 83 W.A.C. 79 (S.C.C.), refd to. [para. 83].

R. v. Skanes (B.) (1992), 99 Nfld. & P.E.I.R. 261; 315 A.P.R. 261; 40 M.V.R.(2d) 85 (Nfld. Prov. Ct.), refd to. [para. 84].

R. v. Bell, [1982] O.J. No. 1032 (Prov. Ct.), refd to. [para. 86].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 87].

R. v. Myrick (N.J.) (1995), 130 Nfld. & P.E.I.R. 144; 405 A.P.R. 144; 13 M.V.R.(3d) 1 (Nfld. C.A.), refd to. [para. 87].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673; [1989] 1 W.W.R. 385; 37 C.R.R. 335; 1988 CarswellBC 699, refd to. [para. 88].

R. v. Brake (1990), 90 Nfld. & P.E.I.R. 325; 280 A.P.R. 325 (Nfld. C.A.), refd to. [para. 88].

R. v. Davison, [2001] N.S.J. No. 605 (Prov. Ct.), refd to. [para. 88].

R. v. Martin (R.B.) (1995), 171 N.B.R.(2d) 68; 437 A.P.R. 68 (T.D.), refd to. [para. 88].

R. v. Crockford (K.) (1998), 78 O.T.C. 346; 37 M.V.R.(3d) 268 (Gen. Div.), refd to. [para. 88].

R. v. Mills (T.), [1998] 174 Sask.R. 192 (Q.B.), refd to. [para. 88].

R. v. Otto (K.), [2000] O.T.C. Uned. 439 (Sup. Ct.), refd to. [para. 88].

R. v. Logan (F.J.) (2005), 388 A.R. 255 (Q.B.), refd to. [para. 88].

R. v. Flemming, [2005] N.J. No. 75, dist [para. 90].

R. v. Kearley, [2006] N.J. No. 21 (N.L. Prov. Ct.), refd to. [para. 90].

R. v. Daley (H.), [2006] O.T.C. 590 (Sup. Ct.), refd to. [para. 91].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89 (N.L.C.A.), refd to. [para. 97].

Dallison v. Caffery, [1964] 3 W.L.R. 385 (C.A.), refd to. [para. 101].

R. v. Koszulap (1974), 20 C.C.C.(2d) 198 (Ont. C.A.), refd to. [para. 106].

R. v. Holmes (K.) (2002), 165 O.A.C. 307; 62 O.R.(3d) 146 (C.A.), refd to. [para. 106].

R. v. Precourt (1976), 39 C.C.C.(2d) 311 (Ont. C.A.), refd to. [para. 108].

R. v. C.K., [2005] O.J. No. 4853 (C.J.), refd to. [para. 109].

R. v. Fayant (1983), 22 Man.R.(2d) 311; 6 C.C.C.(3d) 507 (C.A.), refd to. [para. 109].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 114].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 160 C.C.C.(3d) 449, refd to. [para. 114].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 115].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321; 144 D.L.R.(4th) 193; 5 C.R.(5th) 1; 42 C.R.R.(2d) 189; 1997 CarswellNB 107, refd to. [para. 116].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 120].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 120].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 123].

R. v. Kennedy (D.D.) (1995), 135 Nfld. & P.E.I.R. 271; 420 A.P.R. 271 (Nfld. C.A.), refd to. [para. 123].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, refd to. [para. 124].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 129].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 48 C.R.(4th) 320; 107 C.C.C.(3d) 195 (C.A.), refd to. [para. 129].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18; 30 C.C.C.(3d) 163 (C.A.), refd to. [para. 129].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193; 11 C.R.(4th) 253, refd to. [para. 129].

R. v. Payne (I.V.) (2006), 260 Nfld. & P.E.I.R. 134; 786 A.P.R. 134 (N.L.T.D.), refd to. [para. 133].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 134].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96 (C.A.), refd to. [para. 137].

Counsel:

J. Hughes, for the Crown;

K. Mahoney, for the defence.

This application was heard by Kennedy, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following ruling on March 7, 2007.