R. v. Kelly (R.W.), (1999) 213 N.B.R.(2d) 1 (CA)

JudgeTurnbull, Drapeau and Larlee, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateFebruary 26, 1999
JurisdictionNew Brunswick
Citations(1999), 213 N.B.R.(2d) 1 (CA);1999 CanLII 13120 (NB CA);213 NBR (2d) 1;169 DLR (4th) 720;132 CCC (3d) 122;22 CR (5th) 248;[1999] NBJ No 98 (QL);545 APR 1

R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1 (CA);

    213 R.N.-B.(2e) 1; 545 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

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

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

Temp. Cite: [1999] N.B.R.(2d) TBEd. MR.023

Richard Wallace Kelly (appellant) v. Her Majesty The Queen (respondent)

(41/98/CA)

Indexed As: R. v. Kelly (R.W.)

New Brunswick Court of Appeal

Turnbull, Drapeau and Larlee, JJ.A.

February 26, 1999.

Summary:

Kelly was charged with possession of a narcotic (i.e., marihuana) for the purpose of trafficking. Rogers, who was terminally ill, told Wheeler (a lawyer and friend) that he had planted the marijuana in Kelly's garden without Kelly's knowledge. Kelly sought to have Wheeler testify as to Rogers' state­ments.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 195 N.B.R.(2d) 147; 499 A.P.R. 147, de­clined to allow Wheeler to testify. Kelly was convicted by the court. Subsequently, in a decision reported 200 N.B.R.(2d) 1; 512 A.P.R. 1, the court sentenced Kelly to 60 days' imprisonment and two years' proba­tion. Kelly appealed his conviction. In the alterna­tive, he applied for leave to appeal the sen­tence.

The New Brunswick Court of Appeal dis­missed the conviction appeal and denied leave to appeal the sentence.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See both Civil Rights - Topic 1647 ].

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - The police received a tip that Kelly was growing marihuana in his gar­den - A helicopter overflight confirmed the tip - One officer went for a search warrant - Two officers went to Kelly's residence to pre­vent the removal of the evidence - The plants had vanished - Although a warrant had yet to be secured, a search was com­menced and 70 plants were discovered - Kelly arrived and executed a consent to search form - Kelly was charged with possession for the purpose of trafficking - Kelly submitted that the searches were unlawful and that the evidence should be excluded - The New Brunswick Court of Appeal held that Kelly's consent did not validate the warrantless searches because they were conducted before the consent was executed - Also, the consent did not constitute a waiver of Kelly's constitu­tional rights - See paragraphs 8 to 25.

Civil Rights - Topic 1647

Property - Search and seizure - Persons protected - Kelly resided in a house lo­cated on a small rural property - Follow­ing up on a tip that Kelly was growing mari­huana in his garden, the police arranged an overflight at 30 feet using a visiting police helicopter - Marihuana plants were ob­served in Kelly's garden - An officer was dispatched to secure a search warrant - The plants were removed from the garden before the area could be froze pending arrival of the warrant - A warrantless ground search located the hidden plants - Kelly was charged with pos­session of marihuana for the pur­pose of trafficking - Kelly sub­mitted that the evi­dence should be excluded because the helicopter search contravened his s. 8 Charter rights - The Crown submitted that the warrantless aerial search was author­ized by s. 10 of the Narcotic Control Act -The New Bruns­wick Court of Appeal ruled that Kelly had the necessary expecta­tion of privacy to seek relief under s. 24(2) of the Charter - See paragraphs 46 to 53.

Civil Rights - Topic 1647

Property - Search and seizure - Persons protected - Kelly resided in a house lo­cated on a small rural property - Follow­ing up on a tip that Kelly was growing mari­huana in his garden, the police arranged an overflight at 30 feet using a visiting police helicopter - Marihuana plants were ob­served in Kelly's garden - When the police arrived to freeze the area, pending the issuing of a search warrant, they found that the plants had been removed from the garden - A warrantless ground search discovered the hidden plants - Kelly was charged with pos­session of marihuana - Kelly submitted that the evi­dence should be excluded because the helicopter search contravened his s. 8 Charter rights - The trial court invoked the "open fields" doc­trine and ruled that Kelly could not seek relief under s. 24(2) of the Charter because he had no reasonable expectation of pri­vacy regarding open spaces - The New Brunswick Court of Appeal expressed doubt as to whether the open fields doc­trine would apply to the garden and other clear areas near Kelly's home - See para­graphs 32 to 44.

Civil Rights - Topic 1650.1

Property - Search and seizure - Warrantless search and seizure - What constitutes - A helicopter overflight of Kelly's residence confirmed the presence of marijuana plants in his garden - Pending the obtaining of a search warrant, other officers decided to "freeze" the area so that the plants could not be removed - The plants were gone when they arrived - However, a search revealed 70 freshly uprooted plants hidden 30 feet from the residence - Kelly was charged - Kelly submitted that the evi­dence should be excluded because the ground search was illegal - The evidence used in the aborted attempt to obtain the search warrant was obtained by the war­rantless overflight - Therefore, there was no authority for the "freeze" search pend­ing the arrival of a warrant - The New Brunswick Court of Appeal held that the ground search infringed Kelly's s. 8 Char­ter rights - See paragraphs 54 to 57.

Civil Rights - Topic 1654

Property - Search and seizure - Warrantless search and seizure - Perimeter search - During a warrantless overflight at 30 feet, the police confirmed the presence of mari­huana plants in Kelly's garden - Kelly submitted that the warrantless search was illegal - The Crown relied on the open spaces doctrine - In ruling the aerial search illegal, the New Brunswick Court of Ap­peal stated that "I reject the suggestion that the application of s. 8 to such areas is contingent on the presence of viewproof walls or roofs. Such an approach would deny s. 8 rights to most open spaces in residential properties, and it would limit s. 8 rights to the few who can afford such privacy shields. As a rule, lawful occu­pants have an expectation of privacy in all open spaces within their residential lots that is qualitatively sufficient to invest them with s. 8 protection against unlawful aerial as well as terrestrial searches" - See paragraph 50.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - During a warrantless over­flight at 30 feet, the police confirmed their suspicion that there were marihuana plants in Kelly's garden - While one officer attempted to obtain a search warrant, two other officers went to the residence to freeze the area - When they discovered that the plants had been removed from the garden, they con­ducted a warrantless search - They found 70 plants hidden within 30 feet of Kelly's resi­dence - Kelly was charged with pos­session of a narcotic for the purpose of trafficking - Kelly sub­mitted that because his s. 8 Char­ter rights were infringed by the warrantless searches, the evidence should be excluded under s. 24(2) - After finding that the police were acting in good faith and that the evidence was non-con­scriptive, the New Brunswick Court of Appeal ruled the evidence ad­missible - See paragraphs 58 to 62.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsup­ported by evidence - While flying over Kelly's property, the police observed mari­juana plants growing in a garden 150 feet from Kelly's residence - The ground search found the garden empty - However, 70 freshly uprooted plants were found 30 feet from the residence - The plants were three feet high and were a vivid green that could easily be distinguished from other forest greens - Kelly was charged with possession for the purpose of trafficking - Kelly denied any knowledge of the plants -He submitted that they had been planted without his permission by Rogers (then deceased) - Kelly also claimed that an ankle injury had disabled him and would have kept him from planting and cultivat­ing the plants - Kelly appealed his convic­tion on the ground that it was unreasonable - The New Brunswick Court of Appeal dismissed the appeal - See paragraphs 72 to 76.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Police found 70 marijuana plants hidden near Kelly's home - The plants would yield 4.3 pounds of marijuana - Kelly was charged with possession for the purpose of trafficking - He was con­victed of the in­cluded offence of pos­session - Kelly (aged 50) was employed as a prison guard - Separated from wife five years earlier - Currently on medical dis­ability leave fol­lowing liver transplant - Monthly medica­tion cost of $2,000 - Prob­lems with de­pression and stress - Two years of univer­sity education - First offence - Positive presentence report - Kelly requested a suspended or conditional sentence - The trial court held that given the quantity of the marijuana, a conditional sentence would not be appropriate - The court sentenced Kelly to 60 days' impris­onment and two years' probation - The New Brunswick Court of Appeal denied leave to appeal the sentence - See para­graph 77.

Criminal Law - Topic 5878

Sentence - Possession or cultivation of a narcotic - [See Criminal Law - Topic 5720.4 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - Kelly lived in Doaktown - He was charged with possession of marihuana for the pur­pose of trafficking - Rogers, who lived in Fredericton, was terminally ill - Rogers told Wheeler (a lawyer) that he had planted the marihuana in Kelly's gar­den without Kelly's knowledge - Rogers died -Kelly sought to have Wheeler testify as to Rogers' statements - The trial court refused to admit the evidence - Although the test of necessity was met, the condi­tions and circumstances under which the statements were made did not meet the test of reliabil­ity - The New Brunswick Court of Appeal dismissed Kelly's appeal - See paragraphs 65 to 71.

Narcotic Control - Topic 2066

Search and seizure - Warrantless searches -Statutory authorization - The police re­ceived a tip that Kelly was growing mari­huana in his garden - An officer arranged an overflight of the property using a visit­ing police helicopter - Mari­huana plants were observed in Kelly's garden - An officer was dispatched to secure a search warrant - The plants were removed from the garden - A ground search discovered the hidden marihuana plants before the warrant could be obtained - Kelly was charged with possession of marihuana for the purpose of trafficking - Kelly sub­mitted that the evidence should be ex­cluded because the helicopter search vio­lated his s. 8 Charter rights - The Crown submitted that it was authorized by s. 10 of the Narcotic Control Act - The New Brunswick Court of Appeal held, inter alia, that there were no exigent cir­cumstances that would justify the aerial search pur­suant to s. 10 - See paragraphs 26 to 31.

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches -Existence of exigent circumstances - [See Narcotic Control - Topic 2066 ].

Cases Noticed:

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173; 24 C.R.(4th) 1, consd. [para. 1].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289; 26 D.L.R.(4th) 493; 19 C.R.R. 209, refd to. [para. 24].

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. 24].

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; 83 C.C.C.(3d) 129, refd to. [para. 24].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [para. 27].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 27].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 31].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 33].

R. v. Patriquen (M.R.) and Nagy (B.A.) (1994), 136 N.S.R.(2d) 218; 388 A.P.R. 218; 36 C.R.(4th) 363 (C.A.), affd. [1995] 4 S.C.R. 42; 188 N.R. 232; 146 N.S.R.(2d) 74; 422 A.P.R. 74, dist. [para. 35].

R. v. Hutchings (E.W.) (1996), 53 B.C.A.C. 25; 136 W.A.C. 25; 111 C.C.C.(3d) 215 (C.A.), dist. [para. 36].

R. v. Boersma (D.) and Nicols (R.W.), [1994] 2 S.C.R. 488; 168 N.R. 196; 45 B.C.A.C. 3; 72 W.A.C. 3, dist. [para. 36].

California v. Deutsch (1996), 52 Cal. Rptr.2d 366 (Cal. C.A.), consd. [para. 37].

Montana v. Siegal (1997), 934 P.2d 176 (Mont. Sup. Ct.), refd to. [para. 37].

Hester v. United States (1924), 265 U.S. 57, refd to. [para. 40].

Oliver v. United States (1984), 104 S.Ct. 1735, refd to. [para. 40].

United States v. Ciraolo (1986), 476 U.S. 207 (U.S. Sup. Ct.), consd. [para. 43].

United States v. Cuevas-Sanchez (1987), 821 F.2d 248 (5th Cir.), refd to. [para. 43].

Kansas v. Waldschmidt (1987), 740 P.2d 617 (Kan. App.), refd to. [para. 43].

Florida v. Riley (1989), 109 S.Ct. 693 (U.S. Sup. Ct.), not folld. [para. 47].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, consd. [para. 48].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 84 C.C.C.(3d) 161, refd to. [para. 48].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 48].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161; 97 C.C.C.(3d) 450; 38 C.R.(4th) 330; 124 D.L.R.(4th) 193, refd to. [para. 56].

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; 5 C.R.(5th) 1, refd to. [para. 59].

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. 59].

R. v. Pellerin (L.) (1999), 209 N.B.R.(2d) 149; 535 A.P.R. 149 (C.A.), refd to. [para. 61].

Bernard-Chapdelaine v. R., [1935] S.C.R. 53, refd to. [para. 64].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 65].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 65].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 65].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 66].

R. v. Woodcock (1788), 1 Leach 500; 168 E.R. 352, consd. [para. 70].

R. ex rel. Law v. Mead (1824), 2 B. & C. 605; 107 E.R. 509, refd to. [para. 70].

R. v. Laurin (No. 4) (1902), 6 C.C.C. 104 (Que. K.B.), refd to. [para. 70].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 71].

R. v. Warsing (K.L.) (1998), 233 N.R. 319; 115 B.C.A.C. 214; 89 W.A.C. 214 (S.C.C.), refd to. [para. 71].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 75].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(1), sect. 24(2) [para. 6].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(7) [para. 51].

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(3) [para. 6]; sect. 683 [para. 71]; sect. 718.1, sect. 742.1 [para. 6].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 3(2) [para. 4]; sect. 4(2) [para. 3]; sect. 10 [para. 6].

Authors and Works Noticed:

Black's Law Dictionary (4th Ed. 1968), p. 460 [para. 41].

MacFarlane, Bruce A., Drug Offences in Canada (2nd Ed. 1986), p. 427 [paras. 27, 29].

Counsel:

David W. McMath, for the appellant;

B. Bannon Morrissy, for the respondent.

This appeal was heard on September 16, 1998, by Turnbull, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Ap­peal.

The following decision was delivered for the court by Drapeau, J.A., on February 26, 1999.

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29 practice notes
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    ...85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 42 C.R.(4th) 133, refd to. [para. 191]. R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), refd to. [para. 194]. R. v. D.R., H.R. and D.W. (1995), 131 Sask.R. 81; 95 W.A.C. 81; 98 C.C.C.(3d) 353 (C.A.), ......
  • Mitchell v. R., 2005 NBCA 104
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    ...[paras. 3, 39]. R. v. Pellerin (L.) (1999), 209 N.B.R.(2d) 149; 535 A.P.R. 149 (C.A.), consd. [paras. 3, 39]. R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), consd. [paras. 3, 49]. Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. ......
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    ...Traimany (P.) (2011), 261 Man.R.(2d) 101; 2011 MBQB 15, refd to. [para. 88]. R. v. Kelly (R.W.) (1998), 200 N.B.R.(2d) 1; 512 A.P.R. 1; 132 C.C.C.(3d) 122 (T.D.), refd to. [para. R. v. Marceau, [1987] B.C.J. No. 1252 (Co. Ct.), affd. [1988] B.C.J. No. 2351 (C.A.), refd to. [para. 91]. R. v.......
  • R. v. Starr (R.D.), (2000) 148 Man.R.(2d) 161 (SCC)
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    ...85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 42 C.R.(4th) 133, refd to. [para. 191]. R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), refd to. [para. 194]. R. v. D.R., H.R. and D.W. (1995), 131 Sask.R. 81; 95 W.A.C. 81; 98 C.C.C.(3d) 353 (C.A.), ......
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4 books & journal articles
  • Table of Cases
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    • Irwin Books Understanding Section 8: Search, Seizure, and the Canadian Constitution
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    ...Keifer (1990), 4 T.T.R. 317 (Ont. Ct. Gen. Div.) .............................................. 380 R. v. Kelly, [1999] N.B.J. No. 98, 169 D.L.R. (4th) 720 (C.A.) ................8, 67, 68, 73 R. v. Kennedy, [1996] O.J. No. 4401, 95 O.A.C. 321 (C.A.) ...................................... 8......
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    ...contraband which is intermingled with bodily waste and 89 R. v. Hutchings (1996), 111 C.C.C. (3d) 215 (B.C.C.A.). 90 R. v. Kelly (1999), 132 C.C.C. (3d) 122 (N.B.C.A.). 91 R. v. Fry (1999), 29 C.R. (5th) 337 (Nfld. C.A.). 92 Kelly, supra note 90. 376 Alan N. Young which is expelled from the......
  • Reasonable Expectation of Privacy
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    • Irwin Books Understanding Section 8: Search, Seizure, and the Canadian Constitution
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    ...generally retain easements over private property for system maintenance. 206 Ibid . Note, however, the case of R. v. Kelly (1999), 169 D.L.R. (4th) 720 (N.B.C.A.), which held that warrantless observations in air space from a low-flying plane was a violation of s. 8. See “When Police Use ‘Ad......
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    ...C.C.C. (3d) 321 (S.C.C.). 10 Duarte , above note 1. 11 Evans , above note 3. 12 R. v. Lam , [2003] A.J. 811 (C.A.). 13 R. v. Kelly (1999), 169 D.L.R. (4th) 720 (N.B.C.A.). Contra , see R. v. Mercer , [2004] A.J. 634 (Prov. Ct.). 14 R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 [ McKinl......

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