R. v. Fry (R.L.), (1999) 183 Nfld. & P.E.I.R. 346 (NFCA)

• Judge: Wells, C.J.N., Mahoney and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 17, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 183 Nfld. & P.E.I.R. 346 (NFCA)

R. v. Fry (R.L.) (1999), 183 Nfld. & P.E.I.R. 346 (NFCA);

    556 A.P.R. 346

MLB headnote and full text

Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. JA.006

Her Majesty The Queen (appellant) v. Roger Lloyd Fry (respondent)

(97/45)

Indexed As: R. v. Fry (R.L.)

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., Mahoney and Green, JJ.A.

December 17, 1999.

Summary:

A package was received by a private cour­ier company for the accused. The package did not have the accused's proper phone number or address on it. The police became involved. The officer who investigated felt the package was suspicious. He suggested that it be taken to the airport and x-rayed. He was accompanied by an employee for the courier company. The x-ray indicated that the package contained at least three blocks of the same size. The officer obtained a war­rant, opened the package and found mari­juana. The accused was charged with pos­session (Narcotic Control Act, s. 4(2)). A voir dire was held to determine whether the accused's s. 8 Charter right to be secure against unreasonable search and seizure had been violated.

The Newfoundland Provincial Court held that the accused's s. 8 Charter rights were violated. Moreover, to admit the evidence would bring the administration of justice into disrepute so the evidence was excluded under s. 24. The Crown appealed.

The Newfoundland Court of Appeal, Wells, C.J.N., dissenting, dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A package was received by a private courier company for the accused - The package did not have the accused's phone number or address on it - The police became involved - The officer who investi­gated felt the package was suspicious - He suggested that the package be taken to the airport to have it x-rayed - A company employee accompanied him - The x-ray indicated that the package contained at least three blocks of the same size - The officer obtained a warrant, opened the package and found marijuana - The accused was charged with possession - He alleged that his s. 8 Charter right to be secure against unreasonable search and seizure was breached - The Newfoundland Court of Appeal agreed - The court held that the accused had a privacy interest in the package, which was breached - That is, there was a reasonable expectation on the part of a person receiving packages for­warded to them by courier, regardless of their contents, that the package would not be interfered with or intruded into - See paragraphs 27 to 47.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - When discussing the privacy interest under s. 8 of the Charter, the Newfoundland Court of Appeal stated that as a general principle "an analysis should start with the assumption that the notions of dignity, integrity and autonomy justify an individual being left alone and not interfered with by the state in his or her activities, including the use, custody and ownership of property, unless sufficiently compelling countervailing state consider­ations exist or unless the circumstances indicate that it is not reasonable for the individual to have had a reasonable expec­tation of non-interference in the first place. There must at least be some proper justifi­cation put forward by the state before interfering in the lives of its citizens" - See paragraph 30.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Newfoundland Court of Appeal stated that whenever it was alleged that a person's right to be secure against unreasonable search or seizure had been infringed in circumstances where no prior warrant had been obtained, "there are three analytical steps to be undertaken. The first is to determine whether there has been either a search or a seizure. Assuming one or the other has been established, the sec­ond step is to determine whether the per­son claiming the right has a reasonable expectation of privacy in, or in the location of, the thing or place searched or seized, and if so, the third inquiry is whether the search was unreasonable in the circum­stances" - See paragraph 20.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Newfoundland Court of Appeal stated that not every investigative technique used by the police would, as a matter of law, be regarded as a search within the meaning of s. 8 of the Charter -It was only where a person's reasonable expectation of privacy was diminished by an investigatory technique that s. 8 came into play - See paragraph 23.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See second Civil Rights - Topic 1646 ].

Civil Rights - Topic 1643

Property - Search and seizure - Extent of protection - [See second, third and fourth Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - [See third Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - At issue was whether the police could, without reasonable grounds, and without exigent circumstances, intercept a package being transported by a private courier, x-ray its contents, use the information thus obtained to ground a search warrant to open the package, and then introduce the contents (marijuana) into evidence against the intended recipient of the package in a drug prosecution - The Newfoundland Court of Appeal held that these actions constituted a breach of the accused's s. 8 right to be secure against unreasonable search and seizure - To conclude otherwise would "amount to an affirmation that warrantless x-ray examinations of courier-conveyed parcels after they are in the custody of the receiving depot are to be regarded as legit­imate police investigatory techniques" - See paragraphs 1 to 56.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A package was received by a private courier company for the accused - The package did not have the accused's phone number or address on it - The police became involved - The officer who investi­gated felt the package was suspicious - He suggested that the package be taken to the airport to have it x-rayed - He was accom­panied by a company employee - The x-ray indicated that the package contained at least three blocks of the same size - The officer obtained a warrant, opened the package and found marijuana - The accused was charged with possession - A voir dire was held to determine whether the accused's s. 8 Charter right to be secure against unreasonable search and seizure had been violated - The trial judge held that they had - The evidence was excluded under s. 24 - The Crown appealed - The Newfoundland Court of Appeal dismissed the appeal - See para­graphs 1 to 81.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See third Civil Rights - Topic 1508 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches -Reasonable grounds - [See third Civil Rights - Topic 1508 ].

Police - Topic 3183

Powers - Search - Electronic surveillance, video camera, beepers, x-rays etc. - [See second Civil Rights - Topic 1646 ].

Police - Topic 3245

Powers - Seizure - Without arrest or war­rant - [See third Civil Rights - Topic 1508 and second Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [paras. 16, 104].

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. [paras. 18, 101].

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; 115 C.C.C.(3d) 129, refd to. [para. 18].

R. v. Hutchings (E.W.) (1996), 83 B.C.A.C. 25; 136 W.A.C. 25; 111 C.C.C.(3d) 215 (C.A.), refd to. [paras. 24, 101].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 25].

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

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287; 84 C.C.C.(3d) 203, refd to. [paras. 27, 104].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [paras. 29, 107].

R. v. Wijesinha (W.K.K.), [1995] 3 S.C.R. 422; 186 N.R. 169; 85 O.A.C. 241; 127 D.L.R.(4th) 242; 100 C.C.C.(3d) 410, refd to. [para. 29].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 159 N.S.R.(2d) 321; 468 A.P.R. 321, refd to. [para. 31].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 31].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 52].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 52].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 53].

Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; 154 N.R. 392; 105 D.L.R.(4th) 210; 83 C.C.C.(3d) 1, refd to. [para. 55].

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; 24 C.R.(4th) 1, refd to. [paras. 58, 104].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [paras. 59, 96].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 61].

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. 61].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 84 C.C.C.(3d) 161, refd to. [paras. 64, 104].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 64].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81; 87 C.C.C.(3d) 193; 26 C.R.(4th) 289; 110 D.L.R.(4th) 297, refd to. [para. 64].

R. v. Goncalves (H.M.), [1993] 2 S.C.R. 3; 150 N.R. 384; 135 A.R. 397; 33 W.A.C. 397; 81 C.C.C.(3d) 240, refd to. [para. 65].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 65].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 38 C.R.(4th) 265; 28 C.R.R.(2d) 244, refd to. [para. 73].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577; 73 Alta. L.R.(2d) 97, refd to. [para. 76].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224; 37 C.R.R. 252, refd to. [para. 77].

R. v. Crane and Walsh (1985), 53 Nfld. & P.E.I.R. 82; 156 A.P.R. 82 (Nfld. Dist. Ct.), refd to. [para. 114].

Authors and Works Noticed:

Roach, Kent, Constitutional Remedies in Canada (1999) (Looseleaf Ed.), paras. 10.1564 [para. 60]; 10.1680 [para. 67].

Counsel:

Jennifer Newbury, for the appellant;

Randolph Piercey, for the respondent.

This appeal was heard on September 17, 1998, before Mahoney, Green and Wells, JJ.A., of the Newfoundland Court of Appeal. The judgment of the court was delivered on December 17, 1999, including the following opinions:

Green, J.A. (Mahoney, J.A., concurring) - see paragraphs 1 to 80;

Wells, C.J.N., dissenting - see paragraphs 81 to 125.