R. v. MacEachern (S.B.), (2007) 255 N.S.R.(2d) 180 (CA)

• Judge: Bateman, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 08, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 255 N.S.R.(2d) 180 (CA);2007 NSCA 69

R. v. MacEachern (S.B.) (2007), 255 N.S.R.(2d) 180 (CA);

    814 A.P.R. 180

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JN.019

Shawn Bernard MacEachern (appellant) v. Her Majesty The Queen (respondent)

(CAC 273586; 2007 NSCA 69)

Indexed As: R. v. MacEachern (S.B.)

Nova Scotia Court of Appeal

Bateman, Oland and Fichaud, JJ.A.

June 8, 2007.

Summary:

The accused was convicted of possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking. Following a positive "dog sniff" of his knapsack at a train station, the accused was detained and questioned before being advised of his s. 10(b) Charter right to counsel. The accused was then arrested, advised of his rights and searched. The accused appealed, submitting his right to counsel was denied and that the search violated s. 8 of the Charter, and that the trial judge erred in refusing to exclude the evidence obtained from the search under s. 24(2) of the Charter.

The Nova Scotia Court of Appeal dismissed the appeal. The accused's s. 8 and 10(b) Charter rights were denied. However, the judge did not err in refusing to exclude the evidence under s. 24(2). The evidence, which was critical to serious drug charges, was non-conscriptive. There were reasonable grounds to arrest the accused and the Charter breaches were not wilful.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Following a positive "dog sniff" of his knapsack at a train station, the accused was detained and questioned without being advised of his s. 10(b) Charter right to counsel - The accused was then arrested and advised of his right to counsel - A search of the knapsack disclosed cocaine and marijuana - The trial judge, although finding a breach of the accused's right to counsel, refused to exclude the evidence under s. 24(2) - The Nova Scotia Court of Appeal dismissed the accused's appeal - The court agreed that the accused's right to counsel was denied and that he had been subjected to an unreasonable search and seizure contrary to s. 8 of the Charter, as the police lacked reasonable and probable grounds to believe that an indictable offence had been committed until after the accused's s. 10(b) Charter rights were violated - However, the judge did not err in refusing to exclude the evidence under s. 24(2) - The physical evidence obtained was non-conscriptive - Its admission would not render the trial unfair - Given the positive dog sniff and the accused's evasive actions, the police had reasonable grounds to arrest the accused and at some point would have subjected him to a lawful search - The Charter breach was unintentional - It was not deliberate or wilful - Given that the evidence was critical to serious drug charges, admission of the evidence would not bring the administration of justice into disrepute.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 18].

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. 18].

R. v. Lewis (M.D.) (2007), 250 N.S.R.(2d) 283; 796 A.P.R. 283; 2007 NSCA 2, refd to. [para. 18].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 19].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 24].

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. 25].

R. v. Delorey (J.L.) (2004), 226 N.S.R.(2d) 59; 714 A.P.R. 59; 2004 NSCA 95, refd to. [para. 26].

R. v. Skeir (C.W.) (2005), 233 N.S.R.(2d) 298; 739 A.P.R. 298; 2005 NSCA 86, refd to. [para. 26].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 27].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 27].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 27].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 31].

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. 40].

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. 43].

R. v. Smith (G.H.) (1992),115 N.S.R.(2d) 24; 314 A.P.R. 24 (C.A.), refd to. [para. 45].

R. v. Byers (1989), 90 N.S.R.(2d) 263; 230 A.P.R. 263 (C.A.), refd to. [para. 45].

R. v. Smith (B.H.) (1990), 95 N.S.R.(2d) 85; 251 A.P.R. 85 (C.A.), refd to. [para. 45].

Counsel:

David J. Mahoney, for the appellant;

David Schermbrucker, for the respondent.

This appeal was heard on May 30, 2007, at Halifax, N.S., before Bateman, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On June 8, 2007, Fichaud, J.A., delivered the following judgment for the Court of Appeal.