R. v. M.F.H., (1991) 7 B.C.A.C. 282 (CA)

• Judge: McEachern, C.J.B.C., Proudfoot and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 24, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 7 B.C.A.C. 282 (CA)

R. v. M.F.H. (1991), 7 B.C.A.C. 282 (CA);

    15 W.A.C. 282

MLB headnote and full text

Regina (respondent) v. M.F.H. (appellant)

(CA013666)

Indexed As: R. v. M.F.H.

British Columbia Court of Appeal

McEachern, C.J.B.C., Proudfoot and Hollinrake, JJ.A.

October 24, 1991.

Summary:

The accused young offender appealed his convictions for break and enter and possession of stolen property.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police lawfully entered an apartment to arrest a youth - The police saw electronic equipment lying around the apartment - The police wrote down the serial numbers of several pieces of the equipment, ascertained that they were stolen and then obtained a search warrant - The youth claimed the warrantless search violated s. 8 of the Charter and that the evidence obtained should be excluded under s. 24(2) - The trial judge found a violation of s. 8 but refused to exclude the evidence under s. 24(2) - The British Columbia Court of Appeal held that the trial judge did not err in admitting the evidence - See paragraphs 3 to 15.

Criminal Law - Topic 1881

Offences against property - Doctrine of recent possession - Application of - Property stolen from Chang was found several hours later in an apartment where the accused youth temporarily resided - The property was in the youth's possession - The British Columbia Court of Appeal held that the trial judge did not err in applying the doctrine of recent possession to find the youth guilty of break and enter - There was no other evidence as to how the stolen property ended up in the youth's possession - See paragraphs 18 to 23.

Criminal Law - Topic 4735

Procedure - Information or indictment, charge or count - Indictable offences - Form and content - Duplicity - A count in an information charging the accused youth with possession of stolen property listed property of six different persons - The accused claimed the count was duplicitous and multifarious, because it referred to more than one transaction and six individuals, which should have been listed separately - The British Columbia Court of Appeal rejected the claim - A single count of possession was involved - The accused knew the case he had to meet and was not prejudiced - See paragraphs 24 to 25.

Cases Noticed:

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207, dist. [para. 10].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177, refd to. [para. 15].

R. v. Kowlyk (1989), 86 N.R. 195; 55 Man.R.(2d) 1; 43 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 19].

R. v. Langmead (1864), Le. & Ca. 427; 169 E.R. 1459; 9 Cox C.C. 464, refd to. [para. 20].

R. v. Exall (1866), 4 F. & F. 922; 176 E.R. 850, refd to. [para. 20].

R. v. Aves, [1950] 2 All E.R. 330, refd to. [para. 21].

R. v. Graham (1972), 7 C.C.C.(2d) 93 (S.C.C.), refd to. [para. 22].

R. v. Newton (1976), 8 N.R. 431; 28 C.C.C.(2d) 286 (S.C.C.), refd to. [para. 22].

R. v. Nickerson (1978), 23 N.S.R.(2d) 104; 32 A.P.R. 104; 37 C.C.C.(2d) 337 (C.A.), refd to. [para. 22].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(2).

Counsel:

D.N. Fai, for the appellant;

   R. Mitchinson, for the respondent.

This appeal was heard on September 19, 1991, at Vancouver, B.C., before McEachern, C.J.B.C., Proudfoot and Hollinrake, JJ.A., of the British Columbia Court of Appeal.

On October 24, 1991, Proudfoot, J.A., delivered the following judgment for the Court of Appeal.