R. v. Hanano (S.), 2007 MBQB 234

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 20, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBQB 234;(2007), 219 Man.R.(2d) 124 (QB)

R. v. Hanano (S.) (2007), 219 Man.R.(2d) 124 (QB)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. OC.028

Her Majesty The Queen v. Susan Hanano (accused)

(CR 04-01-25390; 2007 MBQB 234)

Indexed As: R. v. Hanano (S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Spivak, J.

September 20, 2007.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking after a search of her backpack and duffle bag at a bus station revealed 10 kilograms of cocaine and $1,260 in cash. The warrantless search was conducted with her consent. The accused sought exclusion of the evidence under s. 24(2) of the Charter, alleging a denial of her rights under ss. 8 (search and seizure), 9 (arbitrary detention) and 10 (right to counsel). The Crown conceded a violation of her s. 10(b) right to counsel, where she was not advised of her right to counsel when detained, and a denial of her s. 8 right to be secure against an unreasonable search and seizure, where the violation of her right to counsel resulted in a lack of informed consent to the warrantless search. At issue was whether broader s. 8 Charter rights were violated and whether the accused was arbitrarily detained contrary to s. 9.

The Manitoba Court of Queen's Bench, in a judgment reported (2007), 210 Man.R.(2d) 250, held that the accused's right not to be arbitrarily detained (Charter, s. 9) was not violated where the investigative detention was based upon reasonable grounds and carried out reasonably. The warrantless search violated the accused's right to be secure from unreasonable search and seizure (Charter, s. 8), because, given the conceded breach of her right to counsel (Charter, s. 10(b)), the consent to search was invalid as not being truly informed. The pat-down search incidental to the detention, for purposes of officer safety, was reasonable and did not violate s. 8. Whether the evidence obtained should be excluded under s. 24(2) of the Charter was deferred for argument.

The Manitoba Court of Queen's Bench, balancing the seriousness of the Charter breach against the effect of exclusion of the evidence, declined to exclude the evidence. Its admission would not bring the administration of justice into disrepute.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A bus passenger overheard the accused's cell phone conversation that she was carrying drugs in her luggage - The passenger relayed the information to police, with a description of the accused, the bus, etc. - Police spotted the accused at the bus station and stopped her - The accused, acting nervously, was told that she was being investigated based on a belief that she was carrying drugs - The accused consented to a warrantless search of her luggage, was subjected to a pat-down search and was placed in the police vehicle while officers searched her luggage - Cocaine and cash were found - The accused was arrested and advised of her right to counsel - The Crown conceded that the officers' failure to advise the accused of her right to counsel when first detained violated her s. 10(b) Charter rights and rendered her consent to the warrantless search invalid for want of informed consent - Accordingly, it was conceded that the search of her luggage was an unreasonable search and seizure contrary to s. 8 of the Charter - The trial judge held that the accused was not arbitrarily detained contrary to s. 9 of the Charter - The police had reasonable grounds, based on the tip and their own observations, to detain the accused for investigative purposes and the manner of carrying out the detention was reasonable - The pat-down search for weapons (officer safety) incidental to the investigative detention, which was both reasonable and conducted reasonably, did not violate s. 8 - The Manitoba Court of Queen's Bench excluded one post-detention statement (that she did not know anything) under s. 24(2) of the Charter, as it was conscriptive evidence whose admission would affect trial fairness - The court declined to exclude the physical evidence obtained from the search (cash and drugs) - The admission of that non-conscriptive evidence, which was not derivative evidence, would not affect trial fairness, the Charter breaches were not serious and admission of the evidence would not bring the administration of justice into disrepute.

Cases Noticed:

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 10].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 11].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 12].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 14].

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. 14].

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 160 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 15].

R. v. Law - see R. v. 28221109 Canada Inc. et al.

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 2004 MBCA 45, refd to. [para. 20].

R. v. Grant (D.) (2006), 213 O.A.C. 127 (C.A.), refd to. [para. 20].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 20].

R. v. Feeney (M.) (1997), 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1 (S.C.C.), refd to. [para. 22].

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, dist. [para. 23].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3 (C.A.), affd. [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 24].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 24].

R. v. Myers (S.) (2001), 159 Man.R.(2d) 211; 2001 MBQB 285, dist. [para. 26].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 27].

R. v. France, [2002] N.W.T.J. No. 36 (S.C.), refd to. [para. 28].

R. v. Davies (D.M.R.) (1998), 109 B.C.A.C. 125; 177 W.A.C. 125; 127 C.C.C.(3d) 97 (Yuk. Terr. C.A.), refd to. [para. 28].

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. 33].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 35].

Counsel:

Clyde Bond, for the Crown;

Sheldon Pinx, Q.C., for the accused.

This matter was heard before Spivak, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 20, 2007.