R. v. Fowler (M.O.),

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Turnbull and Richard, JJ.A.
• Neutral Citation: 2006 NBCA 90
• Citation: (2006), 304 N.B.R.(2d) 106 (CA),2006 NBCA 90,304 NBR (2d) 106,40 CR (6th) 398,[2006] NBJ No 370 (QL),144 CRR (2d) 322,304 NBR(2d) 106,[2006] N.B.J. No 370 (QL),304 N.B.R.(2d) 106,(2006), 304 NBR(2d) 106 (CA)
• Date: 28 February 2006
• Court: Court of Appeal (New Brunswick)

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106 (CA);

    304 R.N.-B.(2e) 106; 788 A.P.R. 106

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: [2006] N.B.R.(2d) TBEd. SE.017

Her Majesty the Queen (appellant) v. Martin Owen Fowler (respondent)

(178/04/CA; 2006 NBCA 90)

Indexed As: R. v. Fowler (M.O.)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Richard, JJ.A.

August 24, 2006.

Summary:

The accused was convicted of driving with an excessive blood-alcohol content (summary conviction offence). He appealed, arguing that the trial judge erred in ruling that his rights under ss. 7 and 8 of the Charter were not infringed by the police.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 284 N.B.R.(2d) 253; 742 A.P.R. 253, allowed the appeal, quashed the conviction and ordered a new trial. The Crown sought leave to appeal.

The New Brunswick Court of Appeal granted leave to appeal, allowed the appeal, set aside the decision below and restored the accused's conviction.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - The police were advised that the accused had struck a vehicle, left the scene of the acci­dent and was "probably drinking" - Offi­cers were directed to an address - The officers saw a vehicle parked in the drive­way that matched the description of the accused's vehicle - Its hood was still warm - They knocked on the front and back doors - The accused finally answered the door and identified himself - The officers noted signs of intoxication - The accused was subsequently charged with, inter alia, driving with an excessive blood-alcohol content - The accused argued that, because the police did not have a warrant, their observations respecting his intoxication constituted an unreasonable search and seizure (Charter, s. 8) - The trial judge rejected the argument, concluding that the officers were entitled to attend at the resi­dence and knock on the door without a warrant for the lawful purpose of com­municating with the residence's occupants - The trial judge rejected the notion that their purpose was to obtain incriminating evidence - A Queen's Bench judge allowed the accused's appeal, concluding that one of the officers' purposes was to obtain evidence that the accused was impaired - The New Brunswick Court of Appeal allowed the Crown's appeal - There was no authority for the Queen's Bench judge to summarily substitute her own appre­ciation of the evidence for that of the trial judge - The accused had not challenged the trial judge's factual findings - The trial judge's conclusion that the accused's rights had not been infringed was unassailable.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The New Brunswick Court of Appeal discussed the scope of a summary conviction appeal to the Court of Queen's Bench - See para­graphs 17 and 18.

Police - Topic 3105

Powers - Investigation - Impaired driving - [See Civil Rights - Topic 1646 ].

Trials - Topic 1182.2

Summary convictions - Appeals - Scope of appeal - [See Criminal Law - Topic 7463 ].

Cases Noticed:

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, refd to. [para. 8].

R. v. Vu (D.A.) (1999), 121 B.C.A.C. 66; 198 W.A.C. 66; 133 C.C.C.(3d) 481; 1999 BCCA 182, refd to. [para. 9].

R. v. Mulligan (D.) (2000), 128 O.A.C. 224; 142 C.C.C.(3d) 14 (C.A.), refd to. [para. 9].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 171 C.C.C.(3d) 553; 2003 MBCA 1, refd to. [para. 9].

R. v. Bate, [2002] M.J. No. 324 (Prov. Ct.), refd to. [para. 9].

R. v. G.J.G. (2002), 254 N.B.R.(2d) 131; 664 A.P.R. 131; 2002 NBCA 99, refd to. [para. 17].

R. v. Nadeau (R.) (2006), 294 N.B.R.(2d) 173; 765 A.P.R. 173; 2006 NBQB 41 (T.D.), refd to. [para. 17].

R. v. Fitzgerald (P.), [2005] N.B.R.(2d) Uned. 151; 2005 NBQB 361 (T.D.), refd to. [para. 17].

R. v. Latouf (P.) (2005), 289 N.B.R.(2d) 161; 753 A.P.R. 161; 2005 NBQB 318 (T.D.), refd to. [para. 17].

R. v. Bland (P.D.), [2005] N.B.R.(2d) Uned. 101; 2005 NBQB 234 (T.D.), refd to. [para. 17].

R. v. Webb (R.S.) (2005), 281 N.B.R.(2d) 100; 736 A.P.R. 100; 2005 NBQB 121 (T.D.), leave to appeal refused [2005] N.B.R.(2d) Uned. 142; 2005 NBCA 89, refd to. [para. 17].

R. v. Cawley (W.C.) (2004), 279 N.B.R.(2d) 385; 732 A.P.R. 385; 2004 NBQB 426 (T.D.), refd to. [para. 17].

R. v. Lizotte (J.) (2004), 276 N.B.R.(2d) 4; 724 A.P.R. 4; 2004 NBQB 323 (T.D.), refd to. [para. 17].

R. v. Soucy (K.L.) (2004), 272 N.B.R.(2d) 173; 715 A.P.R. 173; 2004 NBQB 92 (T.D.), refd to. [para. 17].

R. v. Roy (L.) (2004), 273 N.B.R.(2d) 63; 717 A.P.R. 63; 2004 NBQB 91 (T.D.), refd to. [para. 17].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 18].

R. v. Tricker (R.) (1995), 77 O.A.C. 1; 21 O.R.(3d) 575 (C.A.), refd to. [para. 25].

R. v. Bushman, [1968] 4 C.C.C. 17 (B.C.C.A.), refd to. [para. 25].

R. v. LeClaire (K.A.), 2005 NSCA 165, leave to appeal dismissed (2006), 356 N.R. 394 (S.C.C.), refd to. [para. 34].

Counsel:

William J. Corby, Q.C., for the appellant;

Randall G. Maillet, for the respondent.

This appeal was heard on February 28, 2006, by Drapeau, C.J.N.B., Turnbull and Richard, JJ.A., of the New Brunswick Court of Appeal. Richard, J.A., delivered the fol­lowing reasons for judgment for the court on August 24, 2006.