R. v. Higgs (S.R.), (2006) 202 Man.R.(2d) 144 (PC)

• Judge: Tarwid, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: March 30, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 202 Man.R.(2d) 144 (PC)

R. v. Higgs (S.R.) (2006), 202 Man.R.(2d) 144 (PC)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. AP.001

Her Majesty The Queen (informant) v. Shayler Richard Higgs (accused/applicant)

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

Manitoba Provincial Court

Tarwid, P.C.J.

March 30, 2006.

Summary:

The accused was charged with impaired driving under the Criminal Code and failing to leave particulars under the Highway Traffic Act. The accused applied pursuant to s. 24(2) of the Charter for exclusion of evidence obtained during a warrantless search and seizure, that the accused alleged breached his s. 8 Charter rights.

The Manitoba Provincial Court dismissed the application. The warrantless search and seizure did not breach any Charter rights. If the court was mistaken and there was a s. 8 Charter breach, the court would have refused to exclude the evidence.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1652 ].

Civil Rights - Topic 1652

Property - Search and seizure - Warrantless search and seizure - Hot pursuit doctrine - A police officer noticed a red tractor trailer unit with Saskatchewan plates and with the word "Dawn" on the trailer turning onto a street that was not normally a truck route - The officer then received information that a hit and run involving two vehicles in a parking lot had occurred with a tractor trailer fitting the same description - The unit had then left the parking lot - The officer found the unit and arrested the accused driver - The accused was charged with impaired driving under the Criminal Code and failing to leave particulars under the Highway Traffic Act - The accused argued that the warrantless search and seizure of the tractor trailer berth breached his s. 8 Charter right to privacy - The Manitoba Provincial Court held that there was no Charter breach - The exception of hot pursuit applied - If the exception did not apply, then there was a s. 8 breach - See paragraphs 20 to 26.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with impaired driving under the Criminal Code and failing to leave particulars under the Highway Traffic Act - The accused applied pursuant to s. 24(2) of the Charter for exclusion of evidence obtained during a warrantless search and seizure of the berth of the tractor trailer that the accused was driving - He alleged that the search breached his s. 8 Charter rights - The Manitoba Provincial Court held that there was no Charter breach - If the court was mistaken and there was a s. 8 breach, the court would have refused to exclude the evidence - The evidence was non-conscriptive in nature - The officers acted in good faith - The accused's right to privacy was reduced given the fact that the berth area was subject to regulatory inspection and the tractor trailer belonged to another individual - Excluding evidence relating to impaired driving, causing property damage and leaving the scene of an accident were serious matters which would cause the administration of justice to be in disrepute - See paragraphs 30 to 35.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - A police officer noticed a red tractor trailer unit with Saskatchewan plates and with the word "Dawn" on the trailer turning onto a street that was not normally a truck route - The officer then received information that a hit and run involving two vehicles in a parking lot had occurred with a tractor trailer fitting the same description - The unit had then left the parking lot - The officer found the unit - The accused driver smelled of a liquor type substance both outside his vehicle and more strongly while in the back of the police car - His pupils were dilated to the point that the officer could not see the colour of his eyes - He was weaving back and forth - The accused attempted to light the filter end of a cigarette - The officer arrested the accused - He was charged with impaired driving under the Criminal Code and failing to leave particulars under the Highway Traffic Act - The Manitoba Provincial Court held that the officer had reasonable and probable grounds to arrest the accused - See paragraphs 28 and 29.

Cases Noticed:

R. v. Bolczak (P.) (2005), 198 Man.R.(2d) 1; 2005 MBQB 56, folld. [para. 12, footnote 5, Appendix B].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321; 82 C.C.C.(3d) 481, refd to. [para. 23, footnote 12, Appendix B].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 27, footnote 15, Appendix B].

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; 113 C.C.C.(3d) 321, refd to. [para. 30, footnote 17, Appendix B].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 34, footnote 20, Appendix B].

R. v. Grant (D.) (1992), 14 B.C.A.C. 94; 26 W.A.C. 94; 14 C.R.(4th) 260 (C.A.), refd to. [Appendix B].

R. v. Haglof (D.C.) (2000), 144 B.C.A.C. 108; 236 W.A.C. 108; 149 C.C.C.(3d) 248 (C.A.), refd to. [Appendix B].

Counsel:

J. Maynard, for the Crown;

M. Hart, for the accused.

This application was heard at Brandon, Manitoba, by Tarwid, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on March 30, 2006.