R. v. Jacobs (P.G.),

JudgeBrown,O'Brien,Sulyma
Neutral Citation2014 ABCA 172
Citation2014 ABCA 172,(2014), 577 A.R. 3,577 AR 3,(2014), 577 AR 3,577 A.R. 3
Date30 April 2014
CourtCourt of Appeal (Alberta)

R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.082

Her Majesty the Queen (respondent) v. Pamela Gale Jacobs (appellant)

(1303-0111-A; 2014 ABCA 172)

Indexed As: R. v. Jacobs (P.G.)

Alberta Court of Appeal

O'Brien and Brown, JJ.A., and Sulyma, J.(ad hoc)

May 23, 2014.

Summary:

The accused was convicted of possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) and two counts of failing to comply with conditions of release (Criminal Code, s. 145(3)). The accused appealed. At issue was whether the Charter applied to the search which led to the discovery of cocaine in her possession and whether the trial judge erred in the use and admission of expert evidence.

The Alberta Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. The trial judge correctly concluded that the Charter did not apply. However, the trial judge erred in the admission and use of expert evidence.

Civil Rights - Topic 1506

Property - General principles - Charter - Application of - [See Civil Rights - Topic 8311 ].

Civil Rights - Topic 1643

Property - Search and seizure - Extent of protection - [See Civil Rights - Topic 8311 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - A security guard, who searched the accused's purse at an entry checkpoint for a summer exhibition, suspected that she had cocaine in a cigarette package and alerted a nearby police constable - An issue arose as to whether s. 8 of the Charter applied (i.e., whether the security guard was a private actor or agent of the state) - The trial judge ruled that the Charter did not apply - The accused appealed - The Alberta Court of Appeal rejected the accused's argument - The trial judge correctly concluded that the security guard was acting in a private capacity and was not subject to s. 8 of the Charter - See paragraphs 21 to 33.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Criminal Law - Topic 4985 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See both Criminal Law - Topic 4684 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The Alberta Court of Appeal stated that the standard of review for the sufficiency of reasons required the reviewing court to consider whether the reasons were reasonably intelligible to the parties and whether they, together with the trial record and the submissions of counsel, permitted meaningful appellate review - See paragraph 12.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - At issue was the lawfulness of a search and whether the Charter applied - The trial judge reasoned that the Charter did not apply as the case could not be distinguished from R. v. Dell (Alta. C.A. 2005) - The accused was convicted of a drug offence - She appealed, arguing that the judge's reasons were not sufficient (i.e., that the mere statement that this case could not be distinguished from Dell was not enough) - The Alberta Court of Appeal held that in light of the discussion with counsel during submissions regarding Dell, both the substance of the trial judge's decision and her reasoning were clear: she found the distinctions posited by the accused between Dell and this case were insignificant - She therefore considered that the security guard who conducted the search was acting in a private capacity to which the Charter, on the authority of Dell, did not apply - That was sufficient - See paragraphs 16 to 20.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The Alberta Court of Appeal stated that a reviewing court considering the reasonableness of a trial judge's verdict had to determine whether a properly instructed trier of fact could have, on the whole of the evidence, reached the same verdict - That authorized a limited reweighing of the evidence to assess the verdict's reasonableness in light of the evidence - See paragraph 14.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - A security guard, who searched the accused's purse at an entry checkpoint for a summer exhibition, suspected that she had cocaine in a cigarette package and alerted a nearby police constable - The accused was convicted of possession of cocaine for the purpose of trafficking - The accused appealed, arguing that the verdict was unreasonable because of the trial judge's admission and reliance on the expert evidence of a police detective regarding consumption patterns of a casual user of cocaine - The Alberta Court of Appeal agreed that the trial judge should have ignored the constable's opinions about the consumption patterns of casual users as mere speculation because they were outside his expertise and because his opinions about casual users' consumption patterns were unreliable - The court held that the admission and use of the detective's evidence called for a new trial - See paragraphs 34 to 72.

Criminal Law - Topic 4985

Appeals - Indictable offences - Powers of Court of Appeal - Power re grounds not raised on appeal - A security guard at an entry checkpoint for a summer exhibition on the Edmonton Northlands grounds, suspected that the accused had cocaine in a cigarette package and alerted a nearby police constable - An issue arose as to whether s. 8 of the Charter applied (i.e., whether the security guard was a private actor or an agent of the state) - The trial judge ruled that the Charter did not apply - The accused appealed, arguing that Northlands was an extension of the City - The Alberta Court of Appeal rejected the accused's argument because it represented a new issue raised for the first time on appeal - Also it was based on evidence adduced for the first time on appeal, which was inadmissible - At no time previously did anyone argue that the guard's status as a government actor derived from his employment with Northlands and that Northlands itself was government - See paragraphs 21 to 28.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See both Criminal Law - Topic 4865 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Alberta Court of Appeal stated that a trial judge's decision to admit evidence might raise extricable questions of law for which the standard of review was correctness - Balancing the probative value of expert evidence against the prejudicial effect that its admission might have involved, however, an exercise of discretion to which deference was owed in the absence of unreasonableness or palpable and overriding error - See paragraph 15.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Alberta Court of Appeal stated that opinion evidence, like hearsay evidence and character evidence, was generally inadmissible - One of the exceptions which the law allowed was that expert witnesses could offer opinions where (if given in a criminal matter) delivered in accordance with s. 657.3 of the Criminal Code, and where triers of fact lacked special knowledge and were therefore unable to draw an inference or form a proper conclusion without an expert's assistance - The admission of expert evidence depended on (1) its relevance; (2) its necessity in assisting the trier of fact; (3) a properly qualified expert; and (4) the absence of any exclusionary rule - Where any of those criteria were not met, the court could not receive the opinion - See paragraph 51.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The Alberta Court of Appeal explained that once experts were qualified to opine on certain subjects, they were not permitted to opine on matters beyond the scope of those subjects - Such evidence was inadmissible, and the trial judge should not assign any weight to it - Experts were also considered to have opined outside the scope of their expertise where they opined on a subject upon which they had no special knowledge, skill or experience, but upon which they had been qualified as an expert - An objection of that nature went not to admissibility, but to weight - See paragraphs 51 and 52.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See second Criminal Law - Topic 4865 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See second Evidence - Topic 7000.4 ].

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - On an appeal from a conviction for possession of cocaine for the purpose of trafficking, the Alberta Court of Appeal stated that the the trial judge's determinations of questions of law and her application of legal principles were to be reviewed on a standard of correctness - The trial judge's findings of fact to which those principles were applied, however, including the inferences she drew from the facts, would be reversed on appeal only if they disclosed palpable and overriding error - See paragraph 13.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See first Criminal Law - Topic 4684 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Criminal Law - Topic 4985 ].

Cases Noticed:

R. v. Dell (B.M.) (2005), 367 A.R. 279; 346 W.A.C. 279; 2005 ABCA 246, refd to. [para. 6].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 12].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 12].

University of Alberta et al. v. Chang et al. (2012), 539 A.R. 58; 561 W.A.C. 58; 2012 ABCA 324, refd to. [para. 12].

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. 13].

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. 13].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 14].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 14].

R. v. Martel (T.M.) (2011), 502 A.R. 200; 517 W.A.C. 200; 2011 ABCA 114, refd to. [para. 14].

R. v. Saddleback (E.J.) (2013), 556 A.R. 17; 584 W.A.C. 17; 2013 ABCA 250, refd to. [para. 14].

R. v. S.E.V. (2009), 448 A.R. 351; 447 W.A.C. 351; 2009 ABCA 108, refd to. [para. 15].

R. v. Vuradin (F.) (2011), 515 A.R. 25; 532 W.A.C. 25; 2011 ABCA 280, refd to. [para. 15].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, 55 C.C.C.(3d) 1, refd to. [para. 15].

681210 Alberta Ltd. v. Hunter et al. (2012), 522 A.R. 109; 544 W.A.C. 109; 2012 ABCA 83, refd to. [para. 25].

Aftergood v. Alberta (Minister of Municipal Affairs) et al. (2006), 384 A.R. 189; 367 W.A.C. 189; 2006 ABCA 154, refd to. [para. 28].

R. v. Fertal (G.D.) (1993), 145 A.R. 225; 55 W.A.C. 225 (C.A.), refd to. [para. 28].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2002), 303 A.R. 249; 273 W.A.C. 249; 2002 ABCA 131, refd to. [para. 28].

R. v. Weir (D.T.) (1999), 250 A.R. 73; 213 W.A.C. 73; 1999 ABCA 275, refd to. [para. 28].

R. v. Brown (A.R.R.) (1992), 127 A.R. 89; 20 W.A.C. 89; 73 C.C.C.(3d) 481 (C.A.), refd to. [para. 28].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 29].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, 166 D.L.R.(4th) 261, refd to. [para. 32].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [para. 35].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 51].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 367 D.L.R.(4th) 601; 2014 SCC 15, refd to. [para. 51].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 52].

Furlotte v. Elward (2011), 379 N.B.R.(2d) 199; 978 A.P.R. 199; 2011 NBCA 95, refd to. [para. 52].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 60].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 66].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 71].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 21].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle, K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), § 12.34 [para. 51].

Kerans, Roger P., and Wiley, Kim M., Standards of Review Employed by Appellate Courts (2nd Ed. 2006), pp. 134, 135 [para. 15].

Counsel:

C.N. Samuel, for the respondent;

H.E. Wolch, Q.C., for the appellant.

This appeal was heard on April 30, 2014, by O'Brien and Brown, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was filed by the Court on May 23, 2014.

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32 practice notes
  • R. v. Alcantara (J.R.) et al., (2014) 577 A.R. 381
    • Canada
    • Court of Appeal (Alberta)
    • July 31, 2014
    ...v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 26]. R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3; 2014 ABCA 172, refd to. [para. Masterpiece Inc. v. Alavida Lifestyles Inc., [2011] 2 S.C.R. 387; 416 N.R. 307; 2011 SCC 2......
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • June 22, 2017
    ...R v Jackson, [2002] OJ No 4005 (SCJ) ............................................................... 115 R v Jacobs, 2014 ABCA 172 ...........................................................................86, 349 R v Jacobsen (2006), 207 CCC (3d) 270, 37 CR (6th) 320, [2006] OJ No 1527 (CA......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...412 R v Jackson, 2019 NWTTC 6 .............................................................................. 242 R v Jacobs, 2014 ABCA 172................................................................................... 76 R v Jacquard, [1997] 1 SCR 314, 113 CCC (3d) 1, [1997] SCJ No 21 .......
  • Nature of the Interaction Between Police and Individuals
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • June 22, 2017
    ...to decide that in Ontario, the Charter does not apply to citizen’s arrests: see R v Giamou , 2015 ONCJ 90. See also R v Jacobs , 2014 ABCA 172, though it is only a decision about a particular security guard. See also R v Nguyen , 2016 BCCA 32. 319 Asante-Mensah , above note 20 at para 77. S......
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27 cases
  • R. v. Alcantara (J.R.) et al., (2014) 577 A.R. 381
    • Canada
    • Court of Appeal (Alberta)
    • July 31, 2014
    ...v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 26]. R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3; 2014 ABCA 172, refd to. [para. Masterpiece Inc. v. Alavida Lifestyles Inc., [2011] 2 S.C.R. 387; 416 N.R. 307; 2011 SCC 2......
  • R. v. Alcorn (S.E.), 2015 ABCA 182
    • Canada
    • Court of Appeal (Alberta)
    • May 4, 2015
    ...v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 27]. R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3; 2014 ABCA 172, refd to. [para. Blake v. Dominion of Canada General Insurance Co. (2015), 331 O.A.C. 48; 2015 ONCA 165, re......
  • R v Howell, 2020 ABQB 385
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • June 26, 2020
    ...on the admissibility issues (By the Crown: R v Mohan, [1994] 2 SCR 9; R v Sekhon, 2014 SCC 15; R v Abbey, 2009 ONCA 624; R v Jacobs, 2014 ABCA 172; Mazur v Lucas, 2010 BCCA 512; White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23; and R v Mernagh, 2013 ONCA 67. By the Defen......
  • R. v. Rempel (I.), 2015 ABCA 96
    • Canada
    • Court of Appeal (Alberta)
    • March 6, 2015
    ...R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 14]. R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3; 312 C.C.C.(3d) 45; 2014 ABCA 172, refd to. [para. 14]. R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; ......
  • Request a trial to view additional results
5 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • June 22, 2017
    ...R v Jackson, [2002] OJ No 4005 (SCJ) ............................................................... 115 R v Jacobs, 2014 ABCA 172 ...........................................................................86, 349 R v Jacobsen (2006), 207 CCC (3d) 270, 37 CR (6th) 320, [2006] OJ No 1527 (CA......
  • The Impact of the Charter
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • June 22, 2017
    ...this conclusion from a consideration of the long legal history of citizen’s arrest from its common law 252 See, for example, R v Jacobs , 2014 ABCA 172, though it is a decision about search powers. 253 R v Asante-Mensah , 2003 SCC 38 at para 77. 254 See Chapter 4, Section C(2)(b)(ii). 255 R......
  • Search and Seizure
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...v M(MR) , [1998] 3 SCR 393 [ M(MR) ]. 4 R v Broyles , [1991] 3 SCR 595; R v Buhay , 2003 SCC 30 [ Buhay ]. 5 Buhay , ibid ; R v Jacobs , 2014 ABCA 172. See also the discussion in Chapter 3, Section B(5). 6 In Hunter v Southam Inc , [1984] 2 SCR 145 [ Hunter ], the Supreme Court specifically......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...412 R v Jackson, 2019 NWTTC 6 .............................................................................. 242 R v Jacobs, 2014 ABCA 172................................................................................... 76 R v Jacquard, [1997] 1 SCR 314, 113 CCC (3d) 1, [1997] SCJ No 21 .......
  • Request a trial to view additional results

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