R. v. Kurdydyk (K.A.),

• Jurisdiction: Manitoba
• Judge: Perlmutter
• Neutral Citation: 2015 MBQB 175
• Citation: 2015 MBQB 175,(2015), 321 Man.R.(2d) 241 (QB),321 ManR(2d) 241,(2015), 321 ManR(2d) 241 (QB),321 Man.R.(2d) 241
• Date: 12 November 2015
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Kurdydyk (K.A.) (2015), 321 Man.R.(2d) 241 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. NO.021

Her Majesty The Queen v. Klym Arsen Kurdydyk (accused)

(CR 14-01-33718; 2015 MBQB 175)

Indexed As: R. v. Kurdydyk (K.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Perlmutter, A.C.J.Q.B.

November 12, 2015.

Summary:

An officer received information from a confidential informant that the accused, who was identified by first and last name, was travelling that day alone in a brown Grand Marquis from Winnipeg to Steinbach with MDMA (Ecstasy) that he was carrying for sale to others. The officer stopped a brown Grand Marquis on the highway going into Steinbach. The accused was the vehicle's lone occupant. The officer identified him by his driver's licence. The officer arrested the accused for possession for the purpose of trafficking and searched the vehicle, incidentally to the arrest. In the driver's side pocket of the front door, he found two bags of MDMA and methamphetamine in powder form. A cell phone was in the front passenger seat plugged into a charger. The phone was on and unlocked. The officer checked text messages on the phone, which were indicative of someone who was trafficking drugs. At trial, the accused asserted breaches of ss. 8 and 9 of the Charter, seeking exclusion of the evidence of the drugs and cell phone.

The Manitoba Court of Queen's Bench, in a decision reported at 321 Man.R.(2d) 228, held that the accused's arrest was lawful and that there was no breach of s. 8 or 9 in relation to the vehicle's search. The evidence obtained was admissible. While the search of the accused's cell phone constituted a breach of s. 8, the evidence was admissible.

The Manitoba Court of Queen's Bench found the accused guilty of possession of MDMA and methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

Criminal Law - Topic 5314

Evidence and witnesses - Inferences - From silence of accused or failure to explain - [See Criminal Law - Topic 5553 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 5553 ].

Criminal Law - Topic 5553

Evidence and witnesses - Proof of particular matters - Possession - On the basis of information from a confidential informant, an officer arrested the accused and searched the accused's vehicle, incidentally to the arrest - In the driver's side pocket of the front door, he found two bags of MDMA (Ecstasy) and methamphetamine in powder form - A cell phone was in the front passenger seat plugged into a charger - Text messages on the phone were indicative of someone who was trafficking drugs - The accused was charged with possession of MDMA and methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act - The Manitoba Court of Queen's Bench convicted the accused - Although he was not in personal possession of the drugs, the facts supported the inference that the accused had both knowledge and control of the drugs - The drugs were in close proximity to the accused in the vehicle - The accused was the vehicle's sole occupant - The cell phone and the nature of the messages were also relevant - The quantity of the drugs and the text messages indicated that the vast majority of the drugs were possessed for the purpose of trafficking - While the accused's failure to testify could not be used to support an inference of guilt, it constituted an absence of evidence - Here, the Crown's evidence "cried out for an explanation" - See paragraphs 8 to 19.

Narcotic Control - Topic 575

Offences - Possession - General - Elements of possession - [See Criminal Law - Topic 5553 ].

Narcotic Control - Topic 577

Offences - Possession - General - Constructive possession - [See Criminal Law - Topic 5553 ].

Narcotic Control - Topic 580

Offences - Possession - General - Knowledge - [See Criminal Law - Topic 5553 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Criminal Law - Topic 5553 ].

Cases Noticed:

R. v. Brar (G.) (2008), 234 Man.R.(2d) 1; 2008 MBQB 133, refd to. [para. 5].

R. v. Jenner (J.P.) (2005), 192 Man.R.(2d) 184; 340 W.A.C. 184; 2005 MBCA 44, refd to. [para. 6].

R. v. Traimany (P.) (2011), 261 Man.R.(2d) 101; 2011 MBQB 15, refd to. [para. 7].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, refd to. [para. 18].

Counsel:

Richard H. Smith, for the Crown;

Wendy Y. Martin White, for the accused.

This case was heard by Perlmutter, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 12, 2015.