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

• Jurisdiction: Manitoba
• Judge: Perlmutter
• Neutral Citation: 2015 MBQB 145
• Citation: (2015), 321 Man.R.(2d) 228 (QB),2015 MBQB 145,321 ManR(2d) 228,(2015), 321 ManR(2d) 228 (QB),321 Man.R.(2d) 228
• Date: 31 August 2015
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Kurdydyk (K.A.) (2015), 321 Man.R.(2d) 228 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. NO.020

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

(CR 14-01-33718; 2015 MBQB 145)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

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

August 31, 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 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.

Editor's Note: For the decision convicting the accused, see 321 Man.R.(2d) 241.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - The Manitoba Court of Queen's Bench discussed the circumstances in which information from a confidential informant justified an arrest without warrant - See paragraphs 7 to 14.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - 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 - At trial, the accused asserted breaches of ss. 8 and 9 of the Charter, seeking exclusion of the evidence of the drugs - The Manitoba Court of Queen's Bench held that the accused's arrest was lawful - The tip from the informant was compelling - It was recent in the sense that it was received on the day of the accused's arrest and it contained a meaningful degree of detail - Although he was a drug-user with a criminal record and a financial motive, the informant was credible - Additional investigative steps by the officer to confirm the information were not required - In the circumstances' totality, the information relied on by the officer to justify an arrest without warrant was reasonable - There was no s. 8 or 9 breach in relation to the vehicle's search - See paragraphs 15 to 31.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - On the basis of information from a confidential informant, an officer arrested the accused for possession for the purpose of trafficking 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 - 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 cell phone - The Crown conceded that the cell phone search was a s. 8 breach because it had not complied with the principles from R. v. Fearon (K.) (2014 S.C.C.) - The Manitoba Court of Queen's Bench held that the cell phone evidence was admissible - At the time of the search, Fearon had not been decided and there was authority that supported the constitutional compliance of the cell phone search - The Charter-infringing conduct was not serious - The officer believed he had authority to search the cell phone - This was not a deliberate breach - While the impact on the accused's Charter-protected interest was serious, it was clearly in society's interests that there be an adjudication on the merits - See paragraphs 41 to 46.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second Civil Rights - Topic 1262 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - 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 - At trial, the accused asserted breaches of ss. 8 and 9 of the Charter, seeking exclusion of the evidence of the drugs - The Manitoba Court of Queen's Bench 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 - Even if there had been a Charter breach, the evidence would have been admitted - The breach would not have been particularly serious - There was no evidence of bad faith or wilful behaviour by the officer - The drugs were real, highly reliable evidence that was central to the Crown's case - See paragraphs 32 to 40.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See second Civil Rights - Topic 1262 ].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See second Civil Rights - Topic 1262 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See both Civil Rights - Topic 1262 ].

Police - Topic 3063

Powers - Arrest - Without warrant - Reasonable and probable grounds - [See both Civil Rights - Topic 1262 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1262 ].

Cases Noticed:

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, refd to. [para. 1].

R. v. MacKenzie (B.C.), [2013] 3 S.C.R. 250; 448 N.R. 246; 2013 SCC 50, refd to. [para. 8].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 10].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 11].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, affing. (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 12].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1, refd to. [para. 13].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 2007 ABCA 380, refd to. [para. 14].

R. v. Pilkington (C.) (2013), 290 Man.R.(2d) 109; 2013 MBQB 79, refd to. [para. 15].

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117; 304 W.A.C. 117; 2003 MBCA 76, refd to. [para. 25].

R. v. Cook, [1990] B.C.J. No. 37 (C.A.), refd to. [para. 27].

R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 32].

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. 35].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 41].

R. v. Adeshina (A.F.) (2015), 457 Sask.R. 35; 632 W.A.C. 35; 2015 SKCA 29, refd to. [para. 42].

R. v. Jones (H.) (2015), 468 Sask.R. 264; 2015 SKPC 29, refd to. [para. 42].

Counsel:

Richard H. Smith, for the Crown;

Wendy Y. Martin White, for the accused.

This application was heard by Perlmutter, A.C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following ruling on August 31, 2015.