R. v. Grammatikos (D.), (2012) 290 Man.R.(2d) 1 (QB)

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: Wednesday March 07, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 290 Man.R.(2d) 1 (QB);2012 MBQB 73

R. v. Grammatikos (D.) (2012), 290 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MY.026

Her Majesty The Queen v. Dennis Grammatikos (accused)

(CR 10-01-30236; 2012 MBQB 73)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

March 7, 2012.

Summary:

The accused was the owner and operator of a small restaurant on Sgt. Hutter's "beat". Hutter stopped regularly at the restaurant and spoke often with the accused, usually over the counter, but occasionally at the kitchen opening when the accused was not at the counter. Hutter received information from a reliable source that the accused was buying and selling pharmaceutical drugs. Hutter stopped at the restaurant for a visit. The accused was in the kitchen. Hutter went to the opening to tell the accused that he was there. Hutter saw the accused at a table with a white bag that was full of pill bottles. Hutter recognized pharmaceuticals. He entered the kitchen and arrested the accused. Hutter notified the accused of his Charter rights and provided the police caution. Hutter seized the bag of pill bottles and four ledger books that were in plain sight. When asked if there were other drugs on the premises, the accused provided a tobacco can that contained pills. At trial, the accused asserted that his rights under ss. 8 and 9 of the Charter had been breached and sought exclusion of the evidence obtained under s. 24(2).

The Manitoba Court of Queen's Bench held that there were no breaches of the accused's Charter rights. Even if there had been, the court would have admitted the evidence.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - The accused was the owner and operator of a small restaurant on Sgt. Hutter's "beat" - Hutter stopped regularly at the restaurant and spoke often with the accused, usually over the counter, but occasionally at the kitchen opening when the accused was not at the counter - Hutter received information from a reliable source that the accused was buying and selling pharmaceutical drugs - Hutter stopped at the restaurant for a visit - The accused was in the kitchen - Hutter went to the opening to tell the accused that he was there - Hutter saw the accused at a table with a white bag that was full of pill bottles - Hutter recognized pharmaceuticals - He entered the kitchen and arrested the accused - Hutter notified the accused of his Charter rights and provided the police caution - Hutter seized the bag of pill bottles and four ledger books that were in plain sight - When asked if there were other drugs on the premises, the accused provided a tobacco can that contained pills - The Manitoba Court of Queen's Bench found that the warrantless arrest was lawful - Hutter had both subjectively and objectively reasonable grounds for the arrest - He attended at the kitchen opening for a lawful purpose and in the course of his duties - What Hutter observed required him to act quickly to effect the arrest and to preserve the evidence - See paragraphs 34 to 42.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused was the owner and operator of a small restaurant on Sgt. Hutter's "beat" - Hutter stopped regularly at the restaurant and spoke often with the accused, usually over the counter, but occasionally at the kitchen opening when the accused was not at the counter - Hutter received information from a reliable source that the accused was buying and selling pharmaceutical drugs - Hutter stopped at the restaurant for a visit - The accused was in the kitchen - Hutter went to the opening to tell the accused that he was there - Hutter saw the accused at a table with a white bag that was full of pill bottles - Hutter recognized pharmaceuticals - He entered the kitchen and arrested the accused - Hutter notified the accused of his Charter rights and provided the police caution - Hutter seized the bag of pill bottles and four ledger books that were in plain sight - When asked if there were other drugs on the premises, the accused provided a tobacco can that contained pills - The Manitoba Court of Queen's Bench found that the search was incidental to a lawful arrest and was reasonable - At best, there was a reduced expectation of privacy as to the kitchen area - Hutter had attended at the kitchen opening often in the past without objection by the accused - The pill bottles were in plain view - Hutter was entitled to search incidental to the arrest and to seize what was so evidently before him - He was also entitled to search the surrounding area to preserve evidence - All aspects of the search were conducted reasonably - See paragraphs 43 to 48.

Civil Rights - Topic 1646

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

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1508].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1508].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was the owner and operator of a small restaurant on Sgt. Hutter's "beat" - Hutter stopped regularly at the restaurant and spoke often with the accused, usually over the counter, but occasionally at the kitchen opening when the accused was not at the counter - Hutter received information from a reliable source that the accused was buying and selling pharmaceutical drugs - Hutter stopped at the restaurant for a visit - The accused was in the kitchen - Hutter went to the opening to tell the accused that he was there - Hutter saw the accused at a table with a white bag that was full of pill bottles - Hutter recognized pharmaceuticals - He entered the kitchen and arrested the accused - Hutter notified the accused of his Charter rights and provided the police caution - Hutter seized the bag of pill bottles and four ledger books that were in plain sight - When asked if there were other drugs on the premises, the accused provided a tobacco can that contained pills - The Manitoba Court of Queen's Bench, having found that both the arrest and the search incidental to the arrest were lawful and reasonable, held that, even if there had been a breach of the accused's Charter rights, the evidence obtained would not have been excluded under s. 24(2) of the Charter - Hutter acted in good faith - Any impact of a breach on the accused's Charter rights would have been, at best, minimal - The evidence was reliable and its exclusion would end the prosecution - Its admission would not bring the administration of justice into disrepute - See paragraphs 49 to 57.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1508].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262].

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches - Existence of exigent circumstances - [See Civil Rights - Topic 1508].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1262].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1508].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1508].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 25].

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. 31].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 31].

R. v. Gomboc (D.J.), [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 31].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 31].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 35].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 35].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259; 48 C.R.(6th) 395; 2007 BCCA 351, refd to. [para. 36].

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106; 40 C.R.(6th) 398; 2006 NBCA 90, refd to. [para. 41].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 43].

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. 43].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 43].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 43].

R. v. Lim (No. 2) (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), refd to. [para. 47].

Counsel:

Catherine E. Finnbogason, for the Crown;

Martin D. Glazer, for the accused.

This voir dire was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 7, 2012.