R. v. Lindsay (D.K.), (1999) 142 Man.R.(2d) 96 (CA)
Judge | Philp, Twaddle and Monnin, JJ.A. |
Court | Court of Appeal (Manitoba) |
Case Date | Friday December 24, 1999 |
Jurisdiction | Manitoba |
Citations | (1999), 142 Man.R.(2d) 96 (CA) |
R. v. Lindsay (D.K.) (1999), 142 Man.R.(2d) 96 (CA);
212 W.A.C. 96
MLB headnote and full text
Temp. Cite: [2000] Man.R.(2d) TBEd. JA.025
Her Majesty The Queen (respondent/respondent) v. Gordon Denis Gillespie (applicant/appellant)
(AR 99-30-04192)
Indexed As: R. v. Lindsay (D.K.)
Manitoba Court of Appeal
Philp, Twaddle and Monnin, JJ.A.
December 24, 1999.
Summary:
Two accused (Lindsay and Gillespie) required to appear in court claimed that the perimeter security program at the Winnipeg Law Courts complex violated their rights to be secure from an unreasonable search and seizure (Charter, s. 8) and that the failure to implement the same program in other Manitoba courthouses violated their equality rights (Charter, s. 15).
The Manitoba Court of Queen's Bench, in a judgment reported 137 Man.R.(2d) 68, held that the court's inherent jurisdiction to control its process extended to implementing a security program to ensure safe public access to the justice system without fear of physical violence. The security program, per se, was reasonable, but it was still open to question the reasonableness of any particular search on the ground that it fell outside the parameters of the program. Finally, the failure to implement the security program in all other Manitoba courthouses did not violate s. 15. Gillespie appealed.
The Manitoba Court of Appeal allowed the appeal on the ground that statutory or common law authority for the program was not established on the evidence. Accordingly, all arbitrary searches conducted under the perimeter security program were contrary to s. 8 of the Charter.
Civil Rights - Topic 1641.1
Property - Search and seizure - Courthouse security programs - A perimeter security program was implemented at the Winnipeg Law Courts complex - Public access was limited to two entrances - All persons except those with security clearance were required to pass through an entrance scanner - If the scanner was activated, a hand scanner was used - If the hand scanner was activated, a private search was required before entrance was permitted - Persons declining to be searched could leave, unless it was decided that they were carrying a prohibited weapon - The trial judge held that the security program did not constitute an unreasonable search and seizure (Charter, s. 8) - Absent statutory authority for the program, it was authorized under the court's inherent jurisdiction to ensure justice was administered in a regular, orderly and effective manner - Physical and electronic searches of persons entering courthouses for the purpose of screening for weapons were authorized by law and the program implemented was reasonable - The Manitoba Court of Appeal held that the program was not authorized by law where there was no evidence that the program was implemented in response to a request, direction or order of the Court of Queen's Bench - Further, absent statutory or inherent jurisdiction by the courts, the sheriff did not have the statutory or common law authority to implement the program - The court stated that "it may well be that a statute or properly sanctioned subordinate legislation authorizing a perimeter security program similar to the program that is presently challenged would be found to be reasonable".
Courts - Topic 2004
Jurisdiction - General principles - Inherent jurisdiction - [See Civil Rights - Topic 1641.1].
Sheriffs - Topic 1005
Powers - Courthouse security - [See Civil Rights - Topic 1641.1].
Cases Noticed:
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; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 11].
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. 11].
R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 C.C.C.(3d) 97; 34 M.V.R. 1, refd to. [para. 14].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 15].
British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, dist. [para. 16].
R. v. Hothi et al. (1985), 33 Man.R.(2d) 180 (Q.B.), affd. (1985), 35 Man.R.(2d) 159 (C.A.), refd to. [para. 25].
Balogh v. Crown Court at St. Alban's, [1974] 3 All E.R. 283 (C.A.), refd to. [para. 24, footnote 1].
R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 32].
R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 32].
R. v. Stenning, [1970] S.C.R. 631, refd to. [para. 32, footnote 4].
R. v. Knowlton, [1974] S.C.R. 443, refd to. [para. 32, footnote 4].
R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 34].
Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 41].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 10].
Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 16 [para. 13].
Interpretation Act, R.S.M. 1987, c. I-80; C.C.S.M., c. I-80, sect. 19(1)(b) [para. 13].
Sheriffs Act, R.S.M. 1987, c. S-100; C.C.S.M., c. S-100, sect. 1(3) [para. 31].
Counsel:
R.I. Histed, for the appellant;
H.S. Leonoff, Q.C., for the respondent.
This appeal was heard on November 22, 1999, before Philp, Twaddle and Monnin, JJ.A., of the Manitoba Court of Appeal.
On December 24, 1999, Philp, J.A., delivered the following judgment for the Court of Appeal.
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