R. v. Marx (K.H.), (2005) 373 A.R. 169 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 27, 2005
• Citations: (2005), 373 A.R. 169 (PC);2005 ABPC 18

R. v. Marx (K.H.) (2005), 373 A.R. 169 (PC)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.011

Her Majesty the Queen v. Kenneth Henry Marx

(040209504P101001; 2005 ABPC 18)

Indexed As: R. v. Marx (K.H.)

Alberta Provincial Court

Semenuk, P.C.J.

January 27, 2005.

Summary:

The accused was charged with possession of a small amount of cannabis marihuana. The drugs were found in the accused's residence by the police in their response to a domestic dispute received via a "hang up" 911 telephone call. The accused argued that his Charter rights were violated and applied under s. 24(2) of the Charter to have excluded from evidence two inculpatory statements that he made to the police, and the drugs and certificate of analyst. Alternatively, the accused argued that the two inculpatory statements were not voluntary and were inadmissible.

The Alberta Provincial Court held that the accused's rights under ss. 7, 8, 10(a) and 10(b) of the Charter were violated and the evidence should be excluded. Further, the two statements were inadmissible because they were not shown to have been voluntary.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Russell found marihuana in the accused's residence when responding to a domestic dispute received via a "hang up" 911 telephone call - When Russell and his partner arrived, two other police officers were already there - They were speaking to a female (the 911 caller) in the foyer - Russell entered the residence and noted a strong smell of marihuana and smoke - He entered the living room/kitchen and saw a small container, in plain view, sitting on a table at the far side of the room - The police conceded that the accused and the female 911 caller were detained - The Alberta Provincial Court held that, beyond the foyer, the police were not lawfully in the residence by invitation - Section 529.3 of the Criminal Code did not apply because the police were at the residence to investigate a 911 call, and not to arrest or apprehend a person on reasonable grounds, in exigent circumstances, as contemplated by that section - The plain view doctrine did not apply because it conferred a seizure power and not a search power - The court excluded the evidence of the marihuana - See paragraphs 21 to 39.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - A police officer (Russell) found marihuana in the accused's residence when responding to a domestic dispute received via a "hang up" 911 telephone call - When Russell and his partner arrived, two other police officers were already there - Russell entered the residence and noted a strong smell of marihuana and smoke - He entered the living room/kitchen and saw a small container, in plain view, sitting on a table at the far side of the room - He saw what looked like marihuana inside it, picked it up and smelled marihuana - He asked the accused "Whose is it?" - The accused replied "Mine" - The Alberta Provincial Court held that the accused was detained and that before asking him questions designed to elicit potentially inculpatory statements respecting a potential drug offence, he should have been given his s. 7 Charter right to silence, and ss. 10(a) and 10(b) Charter rights - The court excluded the statement from evidence - See paragraphs 40 to 45.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 and Civil Rights - Topic 4602 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Russell and his partner responded to a domestic dispute complaint - Two other police officers were already at the residence - Russell entered the residence and noted a strong smell of marihuana and smoke - He entered the living room/kitchen and saw a small container, in plain view, sitting on a table at the far side of the room - He saw what looked like marihuana inside it, picked it up and smelled marihuana - He asked the accused "Whose is it?" - The accused replied "Mine" - Russell arrested the accused for marihuana possession, placed him in the back of the police vehicle, read him his s. 10(b) Charter right to counsel, and gave him a right to silence police caution - The accused stated "Why am I under arrest for 2 grams of marihuana? I was only smoking a joint" - The Alberta Provincial Court held that both statements were inadmissible - In terms of voluntariness, unless absence was adequately explained, all persons in authority in the accused's presence at the time a statement was made had to testify respecting the circumstances surrounding the taking of the statement - Here, two of the three other police officers who were in the residence when the first statement was taken did not testify in the voir dire - The second statement was a continuation of the first statement and was tainted by it - See paragraphs 46 to 48.

Criminal Law - Topic 5359.1

Evidence and witnesses - Confessions and voluntary statements - Evidence and proof - [See Criminal Law - Topic 5355 ].

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See Police - Topic 3146 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1646 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - The accused was charged with possession of cannabis marihuana - A police officer (Russell) found the marihuana in the accused's residence when responding to a domestic dispute received via a "hang up" 911 telephone call - When Russell and his partner arrived, two other police officers were already there - They were speaking to a female (the 911 caller) in the foyer - Russell entered the residence and noted a strong smell of marihuana and smoke - He entered the living room/kitchen and saw a small container, in plain view, sitting on a table at the far side of the room - The Alberta Provincial Court held that, beyond the foyer, the police were not lawfully in the residence by invitation - The court stated that "In the context of a 911 'hang up' call the police are given extraordinary authority by law to force entry into a private residence to investigate the source and reason for the call. The execution of this authority must be strictly controlled." - See paragraph 37.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1646 ].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 22].

R. v. Spindloe (M.) (2001), 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8 (C.A.), refd to. [para. 23].

R. v. Fawthrop (L.) (2002), 161 O.A.C. 350; 166 C.C.C.(3d) 97 (C.A.), refd to. [para. 23].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 16 C.R.(5th) 397 (C.A.), refd to. [para. 24].

R. v. Knee (T.C.) (2001), 285 A.R. 64; 2001 ABPC 23, refd to. [para. 26].

R. v. Jamieson (J.) (2002), 171 B.C.A.C. 57; 280 W.A.C. 57; 2002 BCCA 411, refd to. [para. 29].

R. v. Vickers, 2002 BCPC 389, refd to. [para. 29].

R. v. Brown (L.D.) (2003), 180 B.C.A.C. 48; 297 W.A.C. 48; 2003 BCCA 141, refd to. [para. 29].

R. v. Havelock (K.F.) (2004), 186 Man.R.(2d) 197 (Prov. Ct.), refd to. [para. 29].

R. v. Krall (A.J.) (2003), 341 A.R. 311; 2003 ABPC 171, refd to. [para. 29].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 174 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 33].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 35].

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 160 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 35].

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

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 36].

R. v. Greffe (1990), 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 36].

R. v. Thiffault (1923), 60 C.C.C. 97 (S.C.C.), refd to. [para. 46].

R. v. Kacherowski (1977), 7 A.R. 284 (C.A.), refd to. [para. 46].

R. v. Chow, Tai and Limerick (1978), 43 C.C.C.(2d) 215 (B.C.C.A.), refd to. [para. 46].

R. v. L.R.I. and E.T. (1993), 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 86 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 47].

R. v. D.R. (1994), 168 N.R. 4; 71 O.A.C. 76; 89 C.C.C.(3d) 576 (S.C.C.), refd to. [para. 47].

R. v. Plaha (B.) (2004), 189 O.A.C. 376; 188 C.C.C.(3d) 289 (C.A.), refd to. [para. 47].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 529.3 [para. 20].

Counsel:

J. Healy and J. Mercier, for the Crown;

T. Sturgeon, for the accused.

This case was heard by Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following decision on January 27, 2005.