R. v. Gambilla (D.A.) et al., (2015) 604 A.R. 203 (QB)

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 15, 2015
• Citations: (2015), 604 A.R. 203 (QB);2015 ABQB 40

R. v. Gambilla (D.A.) (2015), 604 A.R. 203 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.015

Her Majesty the Queen v. Dennis Anambono Gambilla and Myriam Mamouni

(100386366Q1; 2015 ABQB 40)

Indexed As: R. v. Gambilla (D.A.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Yamauchi, J.

January 15, 2015.

Summary:

During a drug investigation, surveillance accompanying a controlled delivery of an imported package containing cocaine placed the package in a vehicle rented by M and being driven by G. When police attempted to stop the vehicle, G, M and the other occupant of the vehicle (who had been handed the parcel by the person accepting delivery and who had then placed the parcel in the trunk) fled the vehicle. The police searched the vehicle and its contents (including cellphones and a digital camera) under a General Warrant and their common law power to search incidental to arrest. G and M (the accused) applied under s. 24(2) of the Charter to exclude the evidence, arguing that it resulted from an unreasonable search and seizure (s. 8). The accused also argued that their s. 7 right to make full answer and defence was infringed by late disclosure and/or non-disclosure.

The Alberta Court of Queen's Bench dismissed the application. The accused, by fleeing the vehicle, abandoned any reasonable expectation of privacy they had in the vehicle and its contents. Accordingly, they lacked standing to bring the s. 8 Charter claim. In any event, the search of the vehicle and its contents, other than the electronic devices, was authorized by the General Warrant and was also a lawful search incidental to the attempted arrest. There was no unreasonable search and seizure. The court opined that the warrantless search of the contents of the electronic devices violated s. 8, but the evidence obtained would not have been excluded under s. 24(2). The instances of non-disclosure and late disclosure did not violate the accused's s. 7 Charter rights and, in any event, a stay of proceedings under s. 24(1) would not have been an appropriate remedy.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - A vehicle rented by M and driven by G was stopped by police during a drug investigation - A parcel intercepted at the border and subject to a controlled delivery by undercover officers was in the trunk - M, G and the other occupant of the vehicle (who received the parcel from the target of the controlled delivery and then placed the parcel in the trunk), fled the vehicle, leaving the doors open - The vehicle was searched, including a bag in the back seat - G and M, charged with drug offences, argued that the vehicle and bag were subjected to an unreasonable search and seizure (Charter, s. 8) and that any evidence should be excluded - The police had obtained a General Warrant under s. 487.01 of the Criminal Code that authorized, inter alia, the search of any vehicle that contained the controlled delivery package - The Alberta Court of Queen's Bench held that the search of the vehicle was lawful under the General Warrant - Further, the search was valid as incidental to a lawful attempted arrest - There were reasonable and probable grounds to arrest G, M and the occupant - The fact that they could not be physically arrested at that time because they fled did not derogate from the officers' common law powers to search the vehicle incidental to the arrest - See paragraphs 183 to 218.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A vehicle rented by M and driven by G was stopped by police during a drug investigation - A parcel intercepted at the border, and subject to a controlled delivery by undercover officers, was in the trunk - M, G and the other occupant of the vehicle (who received the parcel from the target of the controlled delivery and then placed the parcel in the trunk), fled the vehicle, leaving the doors open - The vehicle was searched, including a bag in the back seat - G and M, charged with drug offences, argued that the vehicle and bag were subjected to an unreasonable search and seizure (Charter, s. 8) and that any evidence should be excluded - The Crown argued that by abandoning the vehicle, G and M lacked standing to bring the Charter claim, as they had no reasonable expectation of privacy - The Alberta Court of Queen's Bench held that G and M had a reasonable expectation of privacy in the rented vehicle - However, when they fled they abandoned any reasonable expectation of privacy and no longer had standing to argue an unreasonable search and seizure - They abandoned any element of possession and control that they previously had - See paragraphs 145 to 182.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - A vehicle rented by M and driven by G was stopped by police during a drug investigation - A parcel intercepted at the border, and subject to a controlled delivery by undercover officers, was in the trunk - M, G and the other occupant of the vehicle (who received the parcel from the target of the controlled delivery and then placed the parcel in the trunk), fled the vehicle, leaving the doors open - The vehicle was searched - Two Blackberries, a cellphone and a digital camera were found either in the vehicle or in G's jacket, which he threw away while fleeing - The electronic devices were all searched - The Alberta Court of Queen's Bench held that the devices had been abandoned, so M and G had no reasonable expectation of privacy in the devices - Accordingly, there was no violation of their s. 8 Charter rights - Alternatively, if there remained some expectation of privacy, the search of the contents of the devices, without warrant, violated s. 8 - The police could search the contents immediately to help discover evidence and protect the public - That was not necessary here where there was no evidence of public safety concerns or a concern of losing evidence - The police should have postponed the search of the device contents until they obtained a warrant to do so - However, the court would not have excluded the evidence under s. 24(2) - Admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 219 to 258.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first Criminal Law - Topic 4505 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Criminal Law - Topic 4505 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See first Civil Rights - Topic 1508 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Criminal Law - Topic 4505 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1214 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused sought a stay of proceedings (Charter, s. 24(1)) on drug charges on the ground that their s. 7 Charter right to make full answer and defence was prejudiced by the non-disclosure and/or late disclosure of certain information by the Crown - The Crown conceded that there was some information not disclosed that should have been disclosed and some disclosure that was untimely - The Alberta Court of Queen's Bench held that non-disclosure and late disclosure of the information did not infringe s. 7, as the accused failed to prove that they were "probably prejudiced" or that their ability to make full answer and defence was adversely affected - In any event, this was not one of those clearest of cases where a stay of proceedings under s. 24(1) was the appropriate remedy - There was no irreparable prejudice to the accused or the integrity of the administration of justice - See paragraphs 259 to 334.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Queen's Bench stated that "Charter infringement of the right of disclosure is not always an infringement of the right to make full answer and defence. For the Accused Persons to demonstrate an infringement of the right to make full answer and defence, the Accused persons must show that there is a reasonable possibility that the Crown's failure to disclose affected the outcome of the trial, or the non-disclosure affected overall fairness of the trial" - Respecting late disclosure, the court stated that "the way in which this Court must assess such disclosure is whether the Accused Persons have established a real possibility that they would have undertaken certain lines of inquiry with witnesses and would have had opportunities to garner additional evidence that could have been available to them, had the Crown disclosed the relevant information timely. In such a case, the Accused Persons must demonstrate on a balance of probabilities a reasonable possibility that the undisclosed or alleged untimely information could have been used in meeting the Crown's case, advancing a defence, or making a decision which could have affected the conduct of the defence" - See paragraphs 293, 294.

Cases Noticed:

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R. v. Edwards (C.) (1994), 73 O.A.C. 55; 91 C.C.C.(3d) 123; 34 C.R.(4th) 113 (C.A.), affd. [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 151].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405, refd to. [para. 153].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 155].

R. v. Nesbeth (P.) (2008), 240 O.A.C. 71; 23 C.C.C.(3d) 567; 2008 ONCA 579, refd to. [para. 156].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 29 O.R.(3d) 321 (C.A.), refd to. [para. 158].

R. v. Delaa (W.) (2009), 457 A.R. 118; 457 W.A.C. 118 (C.A.), refd to. [para. 163].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 163].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 172].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 176].

R. v. Krafczyk (J.J.) (2011), 511 A.R. 211; 2011 ABQB 107, refd to. [para. 177].

R. v. Ha (M.T.) (2009), 249 O.A.C. 43; 2009 ONCA 340, leave denied (2009), 403 N.R. 388 (S.C.C.), refd to. [para. 186].

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Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 70 C.C.C.(2d) 385, refd to. [para. 188].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 201].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193; 34 O.R.(3d) 743 (C.A.), refd to. [para. 205].

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Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 212].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207; 54 C.R.(3d) 120 (C.A.), refd to. [para. 213].

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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, refd to. [para. 214].

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R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33; 12 C.R.(5th) 332 (C.A.), refd to. [para. 291].

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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. 326].

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R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 331].

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Authors and Works Noticed:

Fontana, James A., and Keehan, M. David, The Law of Search and Seizure in Canada (8th Ed. 2010), p. 459 [para. 186].

Counsel:

S. Jackson, Q.C., A. Webber, F. Polak and T. Lord, for the Crown;

I.D. McKay (Fagan & McKay), for the accused, Dennis Anambono Gambilla;

D.G. Chow (Roulston Chow), for the accused, Myriam Mamouni.

This application was heard on May 6-24, 2013, and November 10-27, 2014, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on January 15, 2015.