R. v. Francis (G.), (1987) 83 N.B.R.(2d) 211 (PC)

• Judge: Dumas, J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: November 06, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 83 N.B.R.(2d) 211 (PC)

R. v. Francis (G.) (1987), 83 N.B.R.(2d) 211 (PC);

    83 R.N.-B.(2e) 211; 212 A.P.R. 211

MLB headnote and full text

[French language version follows English language version]

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

....................

Her Majesty the Queen v. George Francis Jr.

Indexed As: R. v. Francis (G.)

New Brunswick Provincial Court

Criminal Division

Dumas, J.

November 6, 1987.

Summary:

The accused's vehicle was stopped by police for suspicion of possession of narcotics. The police took the key to the vehicle and seized it, frisked the accused and his companion, handcuffed them and placed them in the back seat of the police car. The accused and his companion were taken to the police station and strip searched. 32.8 grams of hashish was found on the accused. The police searched the car and found 218.5 grams of hashish in a shaving kit in a duffle bag belonging to the accused, and 23.5 grams of hashish in a shaving kit in a duffle bag belonging to the companion. The accused alleged that the warrantless searches violated his right to be secure against unreasonable search as guaranteed by s. 8 of the Charter.

The New Brunswick Provincial Court acquitted the accused. The court held that the searches were unlawful and not done on reasonable and probable grounds. The court held that the searches violated the accused's rights under s. 8 of the Charter and the evidence obtained should be excluded under s. 24(2) of the Charter. The court stated that to admit the evidence could bring the administration of justice into disrepute.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - The New Brunswick Provincial Court discussed what constitutes reasonable and probable grounds for a warrantless search under the Narcotic Control Act - See paragraphs 11 to 21.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - Police officers conducted a warrantless search of the accused and his vehicle under the Narcotic Control Act - The police based their search on their on-going investigation and information specific to the day in question - The New Brunswick Provincial Court held that the reasons given by the police for conducting the search did not constitute reasonable and probable grounds - The court stated that "a blanket statement alleging the information being as a result of an on-going investigation is not enough" to constitute reasonable and probable grounds - See paragraphs 11 to 21.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - [See second Narcotic Control - Topic 2062 below].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - The police conducted a warrantless search of an accused's motor vehicle - The New Brunswick Provincial Court held that the search was unlawful and violated the accused's rights under s. 8 of the Charter, because it was not based on reasonable and probable grounds - The court discussed the appropriateness of a warrantless search of an automobile - See paragraphs 56 and 57.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An accused was stopped by police for suspicion of possession of drugs - The accused was arrested and searched and his car was seized and searched - Approximately half a pound of hashish was found - The searches were warrantless searches - The New Brunswick Provincial Court held that the police lacked reasonable and probable grounds to conduct the search; therefore, the search was unlawful and violated the accused's rights under s. 8 of the Charter (right to be secure against unreasonable search and seizure) - The court excluded the evidence obtained because to admit the evidence could bring the administration of justice into disrepute - See paragraphs 33 to 77.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bring the administration of justice into disrepute - [See Civil Rights - Topic 8368 above].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See second Civil Rights - Topic 1213 above].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - Police officers conducted a warrantless search of the accused and his vehicle under the Narcotic Control Act - The police based their search on their on going investigation and information specific to the day in question - The New Brunswick Provincial Court held that "a condition precedent to the warrantless search of a vehicle or a person is that the officer have reasonable and probable grounds" - The court held that the police had no reasonable and probable grounds to search the vehicle or the accused and that the search was unreasonable and violated the accused's rights under s. 8 of the Charter - See paragraphs 11 to 32.

Cases Noticed:

R. v. Debot (1987), 17 O.A.C. 141; 54 C.R.(3d) 120, consd. [para. 18].

R. v. Rao (1984), 4 O.A.C. 162; 40 C.R.(3d) 1, consd. [para. 23].

R. v. Morrison (1987), 20 O.A.C. 230; 58 C.R.(3d) 63, refd to. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 5 W.W.R. 43; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, appld. [para. 26].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; [1984] 6 W.W.R. 577; 55 N.R. 241; 55 A.R. 291; 11 D.L.R.(4th) 641; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; 9 C.R.R. 355; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1, refd to. [para. 28].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18; 54 C.R.(3d) 144, refd to. [para. 30].

R. v. Davidson (1982), 40 N.B.R.(2d) 702; 105 A.P.R. 702; 29 C.R.(3d) 241, consd. [paras. 32, 42].

Re Weigel and the Queen (1983), 7 C.C.C.(3d) 81, refd to. [para. 32].

R. v. Perry (1984), 56 N.B.R.(2d) 361; 146 A.P.R. 361, consd. [para. 35].

R. v. Richardson (1984), 56 N.B.R.(2d) 172; 146 A.P.R. 172, refd to. [para. 36].

R. v. Wray, [1970] 4 C.C.C. 1, refd to. [para. 38].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485; 59 C.C.C.(2d) 30, refd to. [para. 39].

R. v. MacIntyre (A.K.A. MacDonald), Stoyles & Lamb (1982), 69 C.C.C.(2d) 162 (Alta. Q.B.), consd. [para. 41].

R. v. Eatman (1983), 45 N.B.R.(2d) 163; 118 A.P.R. 163, refd to. [para. 43].

R. v. Therens, [1985] 1 S.C.R. 613; [1985] 4 W.W.R. 286; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; 32 M.V.R. 153; 45 C.R.(3d) 97, refd to. [para. 44].

R. v. Trask, [1985] 1 S.C.R. 655; 59 N.R. 145; 54 Nfld. & P.E.I.R. 221; 160 A.P.R. 221; 45 C.R.(3d) 137, refd to. [para. 44].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 26 D.L.R.(4th) 493; 50 C.R.(3d) 289, consd. [para. 45].

R. v. Zinck (1986), 76 N.B.R.(2d) 258; 192 A.P.R. 258, consd. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 1, 24, 25, 31, 59, 71, 72]; sect. 9 [para. 59]; sect. 24 [paras. 1, 33, 35, 59, 71, 72]; sect. 24(2) [para. 33].

Criminal Code, R.S.C. 1970, c. C-34, sect. 450(1) [paras. 11, 22].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 4(2) [para. 1]; sect. 10 [para. 11].

Counsel:

Mark C. Johnson, for the Attorney General of Canada;

Stewart Paul and Ronald Gaffney, for the defendant.

This case was heard before Dumas, J., of the New Brunswick Provincial Court, Criminal Division, who delivered the following oral judgment on November 6, 1987: