R. v. Herritt (D.J.), 2015 NBCA 33

JudgeLarlee, Richard and Quigg, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateFebruary 25, 2015
JurisdictionNew Brunswick
Citations2015 NBCA 33;(2015), 437 N.B.R.(2d) 158 (CA)

R. v. Herritt (D.J.) (2015), 437 N.B.R.(2d) 158 (CA);

    437 R.N.-B.(2e) 158; 1140 A.P.R. 158

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. JN.021

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.021

Her Majesty the Queen (appellant) v. Donald Joseph Herritt (respondent)

(69-14-CA; 2015 NBCA 33)

Indexed As: R. v. Herritt (D.J.)

Répertorié: R. v. Herritt (D.J.)

New Brunswick Court of Appeal

Larlee, Richard and Quigg, JJ.A.

June 11, 2015.

Summary:

Résumé:

A police officer (Raymond) stopped a vehicle driven by the accused for a random routine document check. Raymond detected an overwhelming odour of raw tobacco in the vehicle and arrested the accused for possession of illegal tobacco. The accused's vehicle was searched incidental to his arrest and 59.5 pounds of marijuana and one kilogram of cannabis resin were discovered in the trunk. No raw tobacco was found. The accused was rearrested and charged with offences relating to trafficking. The accused asserted that his ss. 8 and 9 Charter rights were violated and moved to exclude the resulting evidence.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 418 N.B.R.(2d) 81; 1087 A.P.R. 81, held that the accused's ss. 8 and 9 rights were violated and excluded the resulting evidence. The Crown called no evidence.

The New Brunswick Court of Queen's Bench, Trial Division, found the accused not guilty. The Crown appealed.

The New Brunswick Court of Appeal allowed the appeal, set aside the verdict and ordered a new trial.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer (Raymond) stopped a vehicle driven by the accused for a random routine document check - Raymond detected an overwhelming odour of raw tobacco and arrested the accused for possession of illegal tobacco - A search of the accused's vehicle incidental to his arrest resulted in the discovery of 59.5 pounds of marijuana and one kilogram of cannabis resin in the trunk - No raw tobacco was found - The accused was rearrested and charged with trafficking related offences - The accused asserted that his ss. 8 and 9 Charter rights were violated - The trial judge agreed and excluded the evidence - Raymond failed to consider or assess obvious alternative explanations for the odour that were inconsistent with a contemporaneous presence of illegal tobacco - That resulted in him adopting and applying a reasonable suspicion standard as opposed to the applicable higher reasonable and probable grounds standard - He lacked reasonable and probable grounds to arrest the accused for a tobacco related offence - The New Brunswick Court of Appeal allowed the Crown's appeal - The fact that no large amount of tobacco was found could not ex post facto undermine Raymond's belief that tobacco was there - The trial judge discounted Raymond's belief by requiring an explanation for the lack of illegal tobacco - Raymond had noticed a number of indicators that convinced him that the accused was transporting illegal tobacco - He believed there was probably a large quantity of tobacco present based on his experience - The probability that he was correct was very high - The judge wrongly assumed that Raymond had additional knowledge that he was withholding from the court - That was pure speculation - He should only have considered Raymond's actual training and knowledge as revealed by the evidence, and assessed whether the grounds for arrest were objectively reasonable looking through that lens - See paragraphs 13 to 29.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Tran (T.T.) (2012), 393 N.B.R.(2d) 66; 1017 A.P.R. 66; 2012 NBCA 74, appld. [para. 11].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 11].

R. v. Tontarelli (R.) (2009), 348 N.B.R.(2d) 41; 897 A.P.R. 41; 2009 NBCA 52, refd to. [para. 11].

R. v. O'Kane (R.) (2008), 333 N.B.R.(2d) 274; 855 A.P.R. 274; 2008 NBCA 58, refd to. [para. 14].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 15].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 16].

R. v. Kim (M.), [2014] A.R. Uned. 321; 2014 ABPC 91, refd to. [para. 21].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 21].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 21].

R. v. Acosta (D.T.) (2014), 356 B.C.A.C. 168; 610 W.A.C. 168; 2014 BCCA 218, refd to. [para. 27].

Counsel:

Avocats:

David Schermbrucker, for the appellant;

Robert L. Rideout, for the respondent.

This appeal was heard on February 25, 2015, by Larlee, Richard and Quigg, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following judgment in both official languages for the court on June 11, 2015.

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8 practice notes
  • Powers of Detention
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 June 2017
    ...suspicion. 135 See, for example, MacKenzie , ibid . For other instances, see R v Mooiman and Zahar , 2016 SKCA 43; R v Herritt , 2015 NBCA 33; R v MacCannell , 2014 BCCA 254; or R v Nartey , 2013 ONCA 215. 136 See, for example, R v By , 2015 SKQB 86, where the judge noted at para 46 about t......
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 June 2017
    ...10 R v Henry, 2010 BCCA 462 ......................................................................... 231, 232 R v Herritt, 2015 NBCA 33 ................................................................................. 150 R v Herter, 2006 ABPC 221 ................................................
  • R. v. Stipo, 2020 ONSC 4471
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 23 July 2020
    ...S.C.); R. v. Black, 2011 ABCA 349, 515 A.R. 319, at para. 43; R. v. Churko, 2014 SKCA 41, 433 Sask.R. 317, at para. 5; R. v. Herritt, 2015 NBCA 33, 325 C.C.C. (3d) 325, at para. 21; R. v. McCullough, 2017 ONSC 1252, at para. [49] As noted, the focal point is what the officer knew and unders......
  • HMQ v. C. Gallagher,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • 21 September 2020
    ...to arrest have two components, a subjective belief that is objectively discernable, even if found later to be mistaken (R v. Herritt 2015 NBCA 33). Obviously, of the two competing stories Constable Jean chose to accept Ms. Aubin’s in-person claim over Ms. Gallagher’s phone-in ......
  • Request a trial to view additional results
6 cases
  • R. v. Stipo, 2020 ONSC 4471
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 23 July 2020
    ...S.C.); R. v. Black, 2011 ABCA 349, 515 A.R. 319, at para. 43; R. v. Churko, 2014 SKCA 41, 433 Sask.R. 317, at para. 5; R. v. Herritt, 2015 NBCA 33, 325 C.C.C. (3d) 325, at para. 21; R. v. McCullough, 2017 ONSC 1252, at para. [49] As noted, the focal point is what the officer knew and unders......
  • HMQ v. C. Gallagher,
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • 21 September 2020
    ...to arrest have two components, a subjective belief that is objectively discernable, even if found later to be mistaken (R v. Herritt 2015 NBCA 33). Obviously, of the two competing stories Constable Jean chose to accept Ms. Aubin’s in-person claim over Ms. Gallagher’s phone-in ......
  • Currie v. R.,
    • Canada
    • Court of Appeal (New Brunswick)
    • 18 March 2021
    ...This Court had occasion to consider the issue of warrantless arrest and search incidental to arrest in R. v. Herritt, 2015 NBCA 33, 437 N.B.R. (2d) 158. In writing for the Court, Quigg J.A. relied upon the decision of the Supreme Court in R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No......
  • R. v. Robinson (T.), 2016 ONCA 402
    • Canada
    • Ontario Court of Appeal (Ontario)
    • 17 February 2016
    ...facts exist even if it turns out that the belief is mistaken: see Eccles v. Bourque , [1975] 2 S.C.R. 739, at pp. 744-45; R. v. Herritt , 2015 NBCA 33, 325 C.C.C. (3d) 325, at para. 21. [41] In my view, it was reasonable in the circumstances for Detective Balint to believe that the warrant ......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 June 2017
    ...10 R v Henry, 2010 BCCA 462 ......................................................................... 231, 232 R v Herritt, 2015 NBCA 33 ................................................................................. 150 R v Herter, 2006 ABPC 221 ................................................
  • Powers of Detention
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 June 2017
    ...suspicion. 135 See, for example, MacKenzie , ibid . For other instances, see R v Mooiman and Zahar , 2016 SKCA 43; R v Herritt , 2015 NBCA 33; R v MacCannell , 2014 BCCA 254; or R v Nartey , 2013 ONCA 215. 136 See, for example, R v By , 2015 SKQB 86, where the judge noted at para 46 about t......

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