R. v. Lewis (M.D.), (2007) 250 N.S.R.(2d) 283 (CA)

• Judge: Roscoe, Bateman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 28, 2006
• Jurisdiction: Nova Scotia
• Citations: (2007), 250 N.S.R.(2d) 283 (CA);2007 NSCA 2

R. v. Lewis (M.D.) (2007), 250 N.S.R.(2d) 283 (CA);

    796 A.P.R. 283

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.047

Marlon Dwight Lewis (appellant) v. Her Majesty the Queen (respondent)

(CAC 264778; 2007 NSCA 2)

Indexed As: R. v. Lewis (M.D.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Fichaud, JJ.A.

January 10, 2007.

Summary:

The accused was charged with possession of cocaine and possession of cocaine for the purpose of trafficking. The accused sought to exclude certain evidence, arguing that his rights under ss. 8, 9, and 10 of the Charter had been infringed by the police.

The Nova Scotia Supreme Court, in a decision reported at 244 N.S.R.(2d) 19; 774 A.P.R. 19, admitted the evidence. The accused was convicted of both offences. The possession for the purpose of trafficking charge was stayed. The accused appealed his conviction.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - A police officer in a train station signalled for another officer and his police dog to walk by the last passenger (accused) off the sleeper section of a train - The accused hesitated when he saw the dog and officer approaching and attempted to move as far away from them as possible - The dog signalled that he smelled drugs in the accused's backpack - The accused appeared very nervous - An officer identified himself to the accused, told him that he had done nothing wrong and that he was not under arrest - The officer had the accused step aside to allow other passengers to pass by - The officer asked the accused some general questions and asked for identification - Using the identification, the police learned that the accused had a drug record with a notation for violence - The accused was still very nervous - The officer arrested the accused for possession of drugs and read him his rights - The accused asked to consult counsel - The police opened the backpack and discovered cocaine and electronic scales - The accused argued that his ss. 8 and 10(b) Charter rights had been infringed by the police - He argued, inter alia, that the arrest was illegal because the grounds for the arrest included the information of the accused's drug record, and this information was obtained by police questioning during the accused's detention before he was informed of his right to counsel - The Nova Scotia Court of Appeal rejected the argument - The arrest was based on reasonable and probable grounds: the dog's detection of a narcotic in the backpack of someone with a drug record - When the accused informed the officer of his identity, he was not under detention - So there was no violation of his informational right under s. 10(b) - The officers were entitled to use the identification provided by the accused to research his record - See paragraphs 40 to 44.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer in a train station signalled for another officer and his police dog to walk by the last passenger (accused) off the sleeper section of a train - The accused hesitated when he saw the dog and officer approaching and attempted to move as far away from them as possible - The dog signalled that he smelled drugs in the accused's backpack - The accused appeared very nervous - An officer identified himself to the accused, told him that he had done nothing wrong and that he was not under arrest - The officer had the accused step aside to allow other passengers to pass by - The officer asked the accused some general questions and asked for identification - Using the identification, the police learned that the accused had a drug record with a notation for violence - The accused was still very nervous - The officer arrested the accused for possession of drugs and read him his rights - The accused asked to speak to counsel - The police opened the backpack and discovered cocaine and electronic scales - The accused argued that his ss. 8 and 9 Charter rights had been infringed by the police -The trial judge rejected the argument, finding no physical constraint, no demand or direction and no reasonable perception of compulsion - The Nova Scotia Court of Appeal held that the trial judge made no reviewable error in his conclusion that the accused was not detained before his arrest - See paragraphs 18 to 27.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The police dog in a train station signalled that he smelled drugs in the accused's backpack - An officer identified himself to the accused, told him that he had done nothing wrong and that he was not under arrest - The officer had the accused step aside to allow other passengers to pass by - The officer asked the accused some general questions and asked for identification - Using the identification, the police learned that the accused had a drug record with a notation for violence - The accused was very nervous - The officer arrested the accused for possession of drugs and read him his rights - The accused asked to talk to counsel - The police opened the backpack and discovered cocaine and electronic scales - The accused was re-arrested and told that he would be given private access to a phone at the police station (only a few minutes away) - The accused argued that his right to counsel was breached (Charter, s. 10(b)) as the officers should have given him his right to counsel virtually from the moment he was stopped - The trial judge rejected the argument - It was not necessary for the police to allow the accused to use a public phone in a railway station - The Nova Scotia Court of Appeal held that the trial judge made no reviewable error in concluding that the officers' respected the accused's right to a reasonable opportunity of access to counsel without delay - The search of the accused's backpack after he requested counsel was incidental to arrest - The police were not required to postpone the search until he consulted counsel - See paragraphs 18 to 27.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 1524 and Civil Rights - Topic 4604 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1524 ].

Police - Topic 3107

Powers - Investigation - Question of suspects and witnesses - [See Civil Rights - Topic 1524 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 19].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6, refd to. [para. 19].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 19].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156; 2005 NSCA 47, refd to. [para. 19].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 19].

R. v. Brown - see R. v. Kang-Brown (G.).

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 19].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 364 W.A.C. 240; 2006 BCCA 27, refd to. [para. 19].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 20].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 20].

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, refd to. [para. 20].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 23].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, refd to. [para. 23].

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), leave to appeal denied (1986), 65 N.R. 244; 15 O.A.C. 237; 24 C.C.C.(3d) 88 (S.C.C.), refd to. [para. 23].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 23].

Alfaro v. Centre de prévention de Montréal (Warden) et autres (1992), 47 Q.A.C. 241; 75 C.C.C.(3d) 211 (C.A.), refd to. [para. 23].

United States of America v. Alfaro - see Alfaro v. Centre de prévention de Montréal (Warden) et autres.

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 2004 MBCA 45, refd to. [para. 26].

R. v. Taylor (J.L.) (2006), 257 Nfld. & P.E.I.R. 238; 776 A.P.R. 238; 2006 NLCA 41, refd to. [para. 28].

R. v. Gallant (J.S.) (2006), 300 N.B.R.(2d) 289; 782 A.P.R. 289; 2006 NBQB 114, refd to. [para. 28].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 31].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 31].

R. v. LePage (1986), 75 N.S.R.(2d) 322; 186 A.P.R. 322; 32 C.C.C.(3d) 171 (C.A.), refd to. [para. 32].

R. v. McKane (1987), 21 O.A.C. 73; 35 C.C.C.(3d) 481 (C.A.), refd to. [para. 32].

R. v. Jackson (G.G.) (1993), 66 O.A.C. 64; 86 C.C.C.(3d) 233 (C.A.), refd to. [para. 32].

R. v. Luu (T.T.T.) et al. (2006), 222 B.C.A.C. 275; 368 W.A.C. 275; 2006 BCCA 73, refd to. [para. 32].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 34].

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. 37].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 38].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 38].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 41].

Counsel:

Anne MacLellan Malick, Q.C., for the appellant;

David Schermbrucker, for the respondent.

This appeal was heard on November 28, 2006, at Halifax, N.S., by Roscoe, Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on January 10, 2007.