R. v. Foster (D.), (2015) 376 Nfld. & P.E.I.R. 1 (NLTD(G))

• Judge: Mennie, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 13, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 376 Nfld. & P.E.I.R. 1 (NLTD(G))

R. v. Foster (D.) (2015), 376 Nfld. & P.E.I.R. 1 (NLTD(G));

    1170 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.062

Her Majesty the Queen v. Daniel Foster (201304G0175; 2015 NLTD(G) 161)

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

Newfoundland and Labrador Supreme Court

Trial Division (General)

Mennie, J.

November 13, 2015.

Summary:

The accused was charged with possession of marijuana for the purposes of trafficking and trafficking in marijuana. The asserted that his ss. 8, 9, 10(a) and 10(b) Charter rights were violated, and sought to exclude the results of the search of his vehicle. The accused also sought to exclude the video/audio recording from the police in-dash recording system, asserting that significant portions of the audio recording were unintelligible and the probative value of its admission was outweighed by its prejudicial effect.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the accused's ss. 8 and 9 Charter rights were violated and excluded the results of the search. The court dismissed the application to exclude the video/audio recording.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - Two RCMP officers (Sheppard and Gillard) conducted a traffic stop of a vehicle driven by the accused francophone - After the traffic stop concluded, the officers breached the accused's s. 9 Charter rights by arbitrarily detaining him in the police car based what was believed to be indicators of involvement with illegal drugs - The accused refused to sign a consent form for the search of his vehicle and told the officers "do what you want" - The accused stated that he made the statement after he became frustrated with the police continuing to speaking to him in English - Sheppard interpreted the accused's response as a consent to search - He searched the accused's vehicle - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that the accused's arbitrary detention was a legitimate factor to consider in deciding whether his purported consent to search was voluntary - The phrase "do what you want" was not compelling evidence of consent particularly when the accused made the comment within seconds of refusing to sign the consent form - While a signed consent form was not required, the circumstances did not suggest an express or implied consent "commensurate with the significant effect" that a valid consent would produce - The accused's response was at best ambiguous - The search of the accused's vehicle was unreasonable and in violation of s. 8 of the Charter - The fruits of that search could not support the accused's subsequent arrest - The arrest was unlawful and in violation of the accused's s. 9 rights - The court conducted a Grant analysis and concluded that admission of the resulting evidence would be condoning the Charter breaches which not "merely technical or minor" - Maintaining the integrity of the justice system and the rule of law required the court to exclude the evidence - See paragraphs 60 to 122.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1645 ].

Civil Rights - Topic 1651

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - [See Civil Rights - Topic 1645 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Two RCMP officers, who were assigned to the RCMP's Roving Traffic Unit, pulled over a vehicle driven by the accused - Prior to the stop, the officers did not suspect that the accused had done, or was involved in, anything unlawful - The stop was solely for the purpose of ensuring compliance with the highway enforcement legislation - The accused asserted that the stopping of his vehicle was an arbitrary detention contrary to s. 9 of the Charter - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the assertion - The officers stopped the accused's vehicle pursuant to statutory power as set out in s. 201.1(1) of the Highway Traffic Act - The stop was for reasons related to driving and for no other purpose - See paragraphs 7 to 19.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Two RCMP officers (Gillard and Sheppard) conducted a traffic stop of a vehicle driven by the accused - Sheppard noted what he believed to be indicators of possible criminal activity but did not think that the indicators provided him with sufficient grounds to detain or arrest the accused - Gillard advised the accused that he was "clear of the traffic stop" - Within the subsequent four seconds, the following occur: (1) Gillard turned to walk away; (2) the accused positioned himself to drive; and (3) Gillard, while still located very close to the vehicle's passenger side, turned back to his window and, acting on Sheppard's suspicions, asked "Actually, do you mind if I ask you a few more questions?" - The accused responded "yeah, sure." - Gillard proceeded to ask the accused a number of questions about his travels - The accused asserted that the questioning after the traffic stop was concluded constituted an arbitrary detention contrary to s. 9 of the Charter - The Newfoundland and Labrador Supreme Court, Trial Division (General), considered the interaction between the accused and the officers as it developed in its entirety and concluded that a reasonable person in the accused's position would not have felt as if he or she had no choice but to comply with Gillard's request - Arbitrary detention was not established - See paragraphs 20 to 43.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Two RCMP officers (Gillard and Sheppard) conducted a traffic stop of a vehicle driven by the accused - Sheppard believed that he had a reasonable suspicion to detain the accused based on the following indicators: (1) the presence of an air freshener in the accused's vehicle and the extent to which it was open; (2) the accused's pronounced French accent suggested that he had connections to either New Brunswick or Quebec, both of which were considered source provinces for drugs; (3) the accused was headed to St. John's which was considered a common destination for illegal drugs; and (4) the accused attempted to deceive Sheppard concerning the location from which his travel originated, initially indicating Corner Brook and later confirming that he had crossed over on the ferry - Until the fourth indicator, Sheppard did not think that he had a reasonable suspicion to detain - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that Sheppard must have concluded that the fourth indication was extremely compelling - The court disagreed with that assessment for two reasons - First, the question Sheppard posed to the accused "where are you coming from today?" was imprecise and ambiguous - It was a question which could have resulted in more than one plausible answer - Second, when he was asked if he had just crossed over on the ferry, he answered the question truthfully - His honest response undermined Sheppard's conclusion that he had set out to hide the fact that he just gotten off the ferry - When considered collectively and objectively, the indicators amounted to no more than a generalized suspicion and were insufficient to justify the accused's detention - The detention was arbitrary contrary to s. 9 of the Charter - See paragraphs 44 to 59.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1645 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - An accused charged with drug related offences, asserted that the video/audio recording from the police in-dash recording system should be excluded from evidence - The accused asserted that as significant portions of the audio recording were unintelligible, the probative value of its admission was outweighed by its prejudicial effect - The Newfoundland and Labrador Supreme Court, Trial Division (General), refused to exclude the recording - The recording was probative - It was trustworthy and non-coerced - It was real evidence which allowed the jury to "see" the investigation as it unfolded - As well, the recording provided a context for the arresting police officers' testimony concerning the actions on the day in question as well as their interaction with the accused - Finally, it was arguable that the evidence might support the allegation that accused had knowledge and control of the drugs found in his vehicle - Admission of the recording would result in little prejudice to the accused for three reasons - First, the recording did not suggest that the accused was of "bad character" such that the jury would conclude that he was likely guilty - The evidence did not speak to his character at all - Second, the presentation of the evidence would not take an inordinate amount of time - Third, while portions of the audio recording were unintelligible, any concern that the jury might improperly assess or use the evidence could be addressed with careful directions as to the permissible conclusions or inferences that could be drawn from the recording - See paragraphs 123 to 132.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audio tapes, etc. - General principles, admissibility, etc. - [See Criminal Law - Topic 5209 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See fourth Civil Rights - Topic 3603 ].

Police - Topic 3208

Powers - Direction - Random stopping of persons - [See second Civil Rights - Topic 3603 ].

Counsel:

Nicole Angers, for the Crown;

Franco Schiro, for the accused.

This application was heard at Corner Brook, N.L., on October 19-23, 2015, by Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on November 13, 2015.