R. v. Grant (I.M.),

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Steel and Chartier, JJ.A.
• Neutral Citation: 2009 MBCA 9
• Citation: (2009), 236 Man.R.(2d) 54 (CA),2009 MBCA 9,[2009] 5 WWR 283,240 CCC (3d) 462,[2009] CarswellMan 61,[2009] MJ No 9 (QL),184 CRR (2d) 251,236 Man R (2d) 54,236 Man.R.(2d) 54,236 ManR(2d) 54,(2009), 236 ManR(2d) 54 (CA),[2009] M.J. No 9 (QL)
• Date: 09 June 2008
• Court: Court of Appeal (Manitoba)

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54 (CA);

      448 W.A.C. 54

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JA.033

Her Majesty The Queen (respondent) v. Ian Matthew Grant (accused/appellant)

(AR 07-30-06708; 2009 MBCA 9)

Indexed As: R. v. Grant (I.M.)

Manitoba Court of Appeal

Scott, C.J.M., Steel and Chartier, JJ.A.

January 20, 2009.

Summary:

A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted by a jury of two charges of trafficking methamphetamine, one charge of trafficking cocaine, one charge of extortion and four charges of possession of property obtained by crime over $5,000. At the beginning of the trial, the accused had moved for a judicial stay of proceedings pursuant to s. 24(1) of the Charter for alleged breaches of ss. 7 and 11(d) of the Charter. The accused asserted that he could not make full answer and defence as a result of the Crown's inability to provide complete audio recordings of all contacts initiated by the agent with the accused over the course of the investigation (the agent had failed to record all contacts between the agent and the accused). The motion was refused. After his conviction by the jury, the accused renewed the motion.

The Manitoba Court of Queen's Bench, in a decision reported at 217 Man.R.(2d) 208, dismissed the motion.

The Manitoba Court of Queen's Bench, in a decision reported at 216 Man.R.(2d) 219, imposed a total sentence of 15 years' imprisonment, comprised of an aggregate sentence of 11 years' imprisonment for the drug offences, four years' consecutive on the extortion offence and one year concurrent for each of the possession of property offences. He was also fined $118,833.21 pursuant to s. 462.37(3) of the Criminal Code in lieu of a forfeiture order. He was given two years to pay the fine, with an additional two years' imprisonment, consecutive to his total 15 year sentence, should he not pay in time. The accused appealed against conviction and sentence. The principal issue with respect to the conviction appeal was whether the trial judge erred in law in determining that the accused's rights to a fair trial and to make full answer and defence, as guaranteed by ss. 7 and 11(d) of the Charter, were not violated as a result of the police failure to monitor and record all contacts between the agent and the accused during the sting operation. Secondary issues related to the trial judge's Vetrovec warning, his refusal to declare a mistrial and his response to a request from the jury during deliberations. The issues on the sentence appeal were whether the sentence imposed was fit and whether the time to pay the s. 462.37 fine should start once the accused was released from custody rather than on pronouncement.

The Manitoba Court of Appeal dismissed the conviction and sentence appeals.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - [See Civil Rights - Topic 3133 ].

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 - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged with, inter alia, trafficking and extortion offences - At the beginning of the trial, the accused moved for a judicial stay of proceedings pursuant to s. 24(1) of the Charter for alleged breaches of ss. 7 and 11(d) - The accused asserted that he could not make full answer and defence as a result of the Crown's inability to provide complete audio recordings of all contacts initiated by the agent with the accused (the agent had failed to record all contacts with the accused) - The accused maintained that the unrecorded contacts impaired his right to advance the theory of the defence - That theory was that during those unmonitored contacts, the agent manipulated the accused to cause him to do things which made it appear that he was involved in cocaine and methamphetamine transactions - The motion was refused - After his conviction by the jury, the accused renewed the motion - The trial judge denied the motion - The accused appealed, arguing that the trial judge erred in determining that the accused's ss. 7 and 11(d) Charter rights were not violated as a result of the police failure to monitor and record all contacts between the agent and the accused - The Manitoba Court of Appeal dismissed the appeal - The court stated that "the trial judge was satisfied that the failure to monitor certain contacts was beyond the control of the police and that the Crown had disclosed to the accused all of the relevant information it had in its possession. He was satisfied that the Crown had met its duty to disclose and found that there had been no Charter breach. Critical to his decision was, first, that the accused presumably knew what was said during those unmonitored contacts because that was the basis for the theory of the defence; second, the accused had been provided with a detailed statement of the agent's version of what transpired at those unmonitored contacts; and, finally, the accused did not provide the necessary evidentiary foundation to challenge the agent's version of what transpired during those unmonitored contacts" - The trial judge did not misdirect himself on the law or misapprehend the facts with respect to his finding that there was no Charter breach - See paragraphs 11 to 37.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 8585 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8585 ].

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - The Manitoba Court of Appeal considered the matter of when a stay request for a Charter breach should be made (its timing) and when it should be considered by the trial judge (its disposition) - The court stated that "in circumstances where the accused contends that his/her right to advance the theory of the defence has been impaired, such as in this case, the trial judge should reserve decision on the stay request until all of the evidence is heard unless it becomes apparent before then that there is 'no other course of action [that] will cure the prejudice' ... In certain situations, this may be upon the commencement of the trial; in others, it may be in the middle of it. But what is absolutely certain in terms of timing is that the stay request and the decision on its merits must be made before the jury starts its deliberations" - See paragraph 21.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The Manitoba Court of Appeal stated that "The standard by which to review a Charter breach decision is not the same deferential standard used to conduct the review of a judge's discretionary power to grant a s. 24(1) Charter remedy. When examining a trial judge's decision on whether a Charter breach occurred, the appellate court will review that decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This is a question of law and the standard of review is correctness. The appellate court will then review the evidentiary foundation which forms the basis for the trial judge's decision to see whether there was an error. On this part of the review, the trial judge's decision is entitled to more deference and, except for palpable and overriding error, it will not be disturbed. The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts as found by the trial judge satisfy the correct legal test. This is a question of mixed fact and law and the standard of review is again palpable and overriding error, unless a question of law can be easily extricated from the mixed question of fact and law; then the standard of correctness would apply to that question of law" - See paragraphs 24 to 25.

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials or matters - The accused was charged with, inter alia, trafficking and extortion offences - At the beginning of his trial, the accused moved for a judicial stay of proceedings pursuant to s. 24(1) of the Charter for alleged breaches of ss. 7 and 11(d) - The motion was refused - After his conviction by the jury, the accused renewed the motion - The trial judge again denied the motion - The accused appealed, arguing that the trial judge erred in determining that the accused's ss. 7 and 11(d) Charter rights were not violated - The Manitoba Court of Appeal stated that "The general rule is that once the jury, as opposed to a trial judge sitting alone, has returned a verdict of guilt, the trial judge is functus officio ... That verdict will stand unless successfully appealed. As with all general rules, it is subject to a few exceptions, but none apply here. In this case, because the jury had already delivered its verdict, the trial judge no longer had the authority to entertain the accused's motion, either as a request to stay proceedings or as a motion to quash convictions. He was functus officio" - See paragraphs 17 to 18.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted of, inter alia, trafficking and extortion offences - At trial, the accused had moved for a judicial stay of proceedings pursuant to s. 24(1) of the Charter for alleged breaches of ss. 7 and 11(d) - The accused asserted that he could not make full answer and defence as a result of the Crown's inability to provide complete audio recordings of all contacts initiated by the agent with the accused over the course of the investigation (the agent had failed to record all contacts with the accused) - The trial judge denied the motion - On appeal, the accused presented a new argument that the failure by the police to monitor and record all of the contacts between the agent and the accused amounted to an abuse of process and the trial judge erred by not granting the stay on the basis of abuse of process - The Manitoba Court of Appeal found no merit in the abuse of process argument - The purported evidence (the unrecorded contacts) was never lost or destroyed, it never existed - Furthermore, there was no evidence that the police or the Crown had anything to do with the agent's roguery with respect to the unmonitored contacts or that they were in any way negligent in trying to ensure that the protocol was respected - Moreover, there was no real challenge by the accused over what transpired during those unmonitored contacts - In fact, the accused had used the agent's deceit and the fact that there were unmonitored meetings to argue that the recorded contacts were presented out of context and the unmonitored meetings had compelled the trial judge to make an unequivocal statement with respect to the agent's credibility - If there were any concerns over the fairness of the trial as a result of the agent's conduct, they were put right by the trial judge's strong Vetrovec warning - See paragraphs 38 to 53.

Criminal Law - Topic 4349.4

Procedure - Jury - Evidence - Request for non-exhibit items - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted by a jury of, inter alia, trafficking and extortion charges - During its deliberations, the jury had made a request to the trial judge seeking the interception of a phone call between the agent and Dew - The accused's counsel argued that although the Dew intercepts had not been filed as an exhibit, their content was in evidence because they had been played during the trial - Therefore, it was argued, the audiotape of the Dew intercepts should be made available to the jury - The trial judge decided not to provide the audiotape of the intercepts to the jury, but directed the jury to a specific page of his charge where he dealt with the content of the Dew intercepts - On appeal, the accused argued that the trial judge's response to the jury's request was inadequate and that the trial judge could have ordered that the Dew intercepts be played back to the jury, notwithstanding that they had not been filed as exhibits - The Manitoba Court of Appeal rejected this ground of appeal - The Dew intercepts were played during the trial to buttress the defence theory that the agent was a thief - The Dew intercepts were never before the court for the truth of what was said - The decision not to file the Dew intercepts as an exhibit was a clear tactical decision on the part of the defence - See paragraphs 72 to 87.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - [See second Criminal Law - Topic 4354 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted by a jury of, inter alia, trafficking and extortion charges - On appeal, the accused argued that the trial judge erred in law in his Vetrovec warning because he failed to provide the explanatory foundation for the caution by not making clear to the jury that the agent was the type of witness that "[could] fool them" - The Manitoba Court of Appeal rejected this ground of appeal - The trial judge went so far as to say that it would be dangerous to convict the accused for any offence unless the agent's testimony was confirmed by independent and reliable evidence "to such a degree that the independent evidence restores your confidence in that part of his testimony that you choose to rely on" - The court stated that "It is difficult for me to imagine a clearer and sharper warning to draw the attention of jurors to the risks of accepting the evidence of the agent without confirmatory evidence ... There can be no doubt that the jury would have understood the need to be wary of the agent's unconfirmed evidence" - See paragraphs 55 to 63.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted by a jury of, inter alia, trafficking and extortion charges - On appeal, the accused argued that the trial judge erred in law in his Vetrovec warning because he failed to properly explain the concept of confirmatory evidence - The accused argued that although the trial judge explained that to constitute confirmatory evidence in the Vetrovec context the evidence had to be independent of the agent's testimony and restore faith in the impugned witness, he failed to explain that the evidence also had to touch a relevant or material aspect of the agent's account - The Manitoba Court of Appeal rejected this ground of appeal - The court stated that "the question is not, as suggested by the accused, whether the trial judge failed to properly explain the requirement that the independent evidence had to confirm the agent's testimony in some material or relevant aspect. Rather, the question is whether the evidence put to the jury by the trial judge was indeed capable of being confirmatory of the agent's testimony in some material or relevant aspect. In my view, it was" - See paragraphs 64 to 66.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See Criminal Law - Topic 4647 ].

Criminal Law - Topic 4647

Procedure - Mistrials - Review or appeal - A sting operation that used a highly paid career criminal (the agent) resulted in the accused, a "full-patch" member of the Hells Angels, being charged and convicted by a jury of, inter alia, trafficking and extortion charges - On the first morning that the agent was scheduled to testify, approximately 14 armed police officers were placed outside the courtroom door to provide security for the agent - The jury entered the courtroom through that display of force - The accused moved for a mistrial, claiming he was prejudiced by the overt and excessive display of force - He argued that the police presence was suggestive of wrongdoing on his part and that it affected his right to be presumed innocent and his right to a fair trial - The trial judge refused to declare a mistrial, but immediately issued mid-trial instructions to correct any inference that the police presence was suggestive of any wrongdoing on the accused's part - On appeal, the accused argued that the trial judge erred in refusing to declare a mistrial - The Manitoba Court of Appeal rejected this ground of appeal - The accused was unable to demonstrate that the trial judge misdirected himself or that his refusal to grant the mistrial was so clearly wrong as to amount to an injustice - See paragraphs 67 to 71.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - A sting operation that used a highly paid career criminal (the agent) resulted in the accused being charged and convicted of, inter alia, trafficking and extortion offences - At trial, the accused had moved for a judicial stay of proceedings pursuant to s. 24(1) of the Charter for alleged breaches of ss. 7 and 11(d) - The accused asserted that he could not make full answer and defence as a result of the Crown's inability to provide complete audio recordings of all contacts initiated by the agent with the accused (the agent had failed to record all contacts with the accused) - The trial judge denied the motion - The accused appealed - On appeal, the accused presented a new argument that the failure by the police to monitor and record all of the contacts between the agent and the accused amounted to an abuse of process - The Manitoba Court of Appeal considered the impact of raising the argument for the first time during oral argument before the appellate court, and second, the impact of not raising the argument before the trial judge and then arguing before the appellate court that the judge erred on the basis of the new ground - The court decided to address the abuse of process issue - Since the Crown proceeded to speak to the matter, it consented, perhaps obliquely, to having the court consider the abuse of process issue - The evidentiary foundation was sufficiently developed at trial to allow for proper appellate review of the issue and the court could not conclude that the accused failed to raise the abuse of process issue at trial for tactical reasons - See paragraphs 38 to 46.

Criminal Law - Topic 4913

Appeals - Indictable offences - Procedure - Adding grounds of appeal not mentioned in notice of appeal or factum - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 4913

Appeals - Indictable offences - Procedure - Adding grounds of appeal not mentioned in notice of appeal or factum - The Manitoba Court of Appeal stated that "Generally, this court will not consider an argument raised by a party if it is not properly set out in its factum. Like all rules, there are, however, exceptions. Two that quickly come to mind are: 1) when the opposing party consents to the argument being heard; or 2) when the offending party is able to convince this court that exigent circumstances existed that prevented it from following the rules. On this last point, in those rare instances where the offending party successfully convinces this court, the matter would usually be adjourned to allow for proper written argument. Though this list is not intended to be exhaustive, exceptions will not be allowed to rule" - See paragraph 42.

Criminal Law - Topic 5621.1

Punishments (sentence) - Forfeiture orders - Fine instead of forfeiture - The accused was convicted of two charges of trafficking methamphetamine, one charge of trafficking cocaine, one charge of extortion and four charges of possession of property obtained by crime over $5,000 - The trial judge imposed a total sentence of 15 years' imprisonment, comprised of an aggregate sentence of 11 years' imprisonment for the drug offences, four years' consecutive on the extortion offence and one year concurrent for each of the possession of property offences - The accused was also fined $118,833.21 pursuant to s. 462.37(3) of the Criminal Code in lieu of a forfeiture order - He was given two years to pay the fine, with an additional two years' imprisonment, consecutive to his total 15 year sentence, should he not pay in time - On appeal, the accused argued that the time to pay the s. 462.37 fine should start once the accused was released from custody rather than on pronouncement - The Manitoba Court of Appeal stated that the trial judge decided to give the accused two years from the date of pronouncement to pay the fine and there was no reason to intervene - See paragraphs 117 to 123.

Criminal Law - Topic 5633

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Where forfeiture not available - [See Criminal Law - Topic 5621.1 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The accused, a "full-patch" member of the Hells Angels, was convicted by a jury on two charges of trafficking methamphetamine, one charge of trafficking cocaine, one charge of extortion and four charges of possession of property obtained by crime over $5,000 - The amount involved in each of the trafficking charges was one kilogram - The accused had a prior trafficking conviction - The trial judge imposed a total sentence of 15 years' imprisonment, comprised of an aggregate sentence of 11 years' imprisonment for the drug offences, four years' consecutive on the extortion offence and one year concurrent for each of the possession of property offences - The accused was also fined $118,833.21 pursuant to s. 462.37(3) of the Criminal Code in lieu of a forfeiture order - He was given two years to pay the fine, with an additional two years' imprisonment, consecutive to his total 15 year sentence, should he not pay in time - The trial judge found that the accused was a high level dealer and a professional extortionist - The accused appealed from the sentence - The Manitoba Court of Appeal dismissed the appeal, holding that the sentence imposed was not unfit - See paragraphs 91 to 116.

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or goods obtained by crime - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5911

Sentence - Extortion - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 4].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 17].

R. v. Henderson (W.G.) (2004), 191 O.A.C. 201; 189 C.C.C.(3d) 447 (C.A.), refd to. [para. 17].

R. v. Halcrow (J.T.) (2008), 437 A.R. 314; 433 W.A.C. 314; 2008 ABCA 319, refd to. [para. 17].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 19].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 20].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, dist. [para. 23].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 25].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 25].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 25].

R. v. Chaisson (D.), [2006] 1 S.C.R. 415; 347 N.R. 282; 256 Nfld. & P.E.I.R. 181; 773 A.P.R. 181; 2006 SCC 11, refd to. [para. 25].

R. v. Arcand (R.D.) (2008), 240 O.A.C. 286; 38 C.E.L.R.(3d) 1; 2008 ONCA 595, leave to appeal refused (2008), 393 N.R. 399 (S.C.C.), refd to. [para. 25].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 27].

R. v. McPhee (E.G.) (2004), 184 Man.R.(2d) 125; 318 W.A.C. 125; 2004 MBCA 43, refd to. [para. 44].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 44].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 56].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 56].

R. v. Sanderson (R.K.) (2003), 177 Man.R.(2d) 260; 304 W.A.C. 260; 2003 MBCA 109, refd to. [para. 57].

R. v. G.G. (1995), 80 O.A.C. 12; 97 C.C.C.(3d) 362 (C.A.), refd to. [para. 57].

R. v. Oigg (K.D.) (2007), 212 Man.R.(2d) 306; 389 W.A.C. 306; 2007 MBCA 34, leave to appeal refused (2007), 376 N.R. 398; 231 Man.R.(2d) 319; 437 W.A.C. 319 (S.C.C.), refd to. [para. 69].

R. v. Lamirande (S.C.) et al. (2002), 163 Man.R.(2d) 163; 269 W.A.C. 163; 2002 MBCA 41, refd to. [para. 69].

R. v. M.B.M. (2002), 170 Man.R.(2d) 131; 285 W.A.C. 131; 2002 MBCA 154, refd to. [para. 80].

R. v. De Bellefeuille (S.M.) (1994), 39 B.C.A.C. 276; 64 W.A.C. 276 (C.A.), dist. [para. 81].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 90].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 90].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 93].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 93].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 94].

R. v. Reader (M.) (2008), 225 Man.R.(2d) 118; 419 W.A.C. 118; 2008 MBCA 42, refd to. [para. 97].

R. v. Ladouceur - see R. v. Traverse (L.) et al.

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 2008 MBCA 110, refd to. [para. 97].

R. v. Munilla and Santorelli (1986), 38 Man.R.(2d) 79 (C.A.), refd to. [para. 98].

R. v. Lebras (A.J.) (1996), 110 Man.R.(2d) 69; 118 W.A.C. 69 (C.A.), refd to. [para. 107].

R. v. Seman (R.B.) (1996), 110 Man.R.(2d) 72; 118 W.A.C. 72 (C.A.), refd to. [para. 107].

R. v. Andrews (D.) (1996), 110 Man.R.(2d) 67; 118 W.A.C. 67 (C.A.), refd to. [para. 107].

R. v. Garoufalis (T.) (1998), 131 Man.R.(2d) 231; 187 W.A.C. 231 (C.A.), refd to. [para. 107].

R. v. Jenner (J.P.) (2005), 192 Man.R.(2d) 184; 340 W.A.C. 184; 2005 MBCA 44, refd to. [para. 107].

R. v. Lavigne (R.), [2006] 1 S.C.R. 392; 346 N.R. 160; 2006 SCC 10, refd to. [para. 120].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 4].

Counsel:

A.D. Gold and V.G. Arsenault, for the appellant;

C.J. Mainella, for the respondent.

This appeal was heard on June 9, 2008, before Scott, C.J.M., Steel and Chartier, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Chartier, J.A., on January 20, 2009.