R. v. Molleken (D.A.) et al., 2012 SKQB 86

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 28, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 86;(2012), 392 Sask.R. 95 (QB)

R. v. Molleken (D.A.) (2012), 392 Sask.R. 95 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MR.073

In The Matter Of Dennis Allan Molleken and Vickie Lynn Pelletier's applications for an Order granting the exclusion of evidence pursuant to the Canadian Charter of Rights and Freedoms

Her Majesty the Queen as represented by the Office of the Director of Public Prosecutions (respondent) v. Dennis Allan Molleken and Vickie Lynn Pelletier (applicants)

(2010 C.N.J. No. 4; 2012 SKQB 86)

Indexed As: R. v. Molleken (D.A.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Keene, J.

February 28, 2012.

Summary:

The police stopped the vehicle that Molleken and Pelletier were travelling in because of a Traffic Safety Act infraction. It was subsequently ascertained that inside Pelletier's purse were five grams of cannabis marijuana. After further searching the vehicle, 162.5 grams of cocaine, 266 tablets of Methylphenidate (Ritalin) and 502 tablets of Pentazocine (Talwin) were found hidden inside a peanut butter jar in the van. Other property was also seized, including $1,219 in cash. Molleken and Pelletier were charged with various offences under the Controlled Drugs and Substances Act and Criminal Code. They applied for an order excluding all the evidence obtained from the search of the vehicle on the basis that their rights under ss. 8 and 9 of the Charter were violated.

The Saskatchewan Court of Queen's Bench found no Charter violations and dismissed the application.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The van that Molleken (driver) and Pelletier (sole passenger) were travelling in passed an emergency vehicle that had its emergency lights on at a speed that Constable Halbauer estimated to be greater than 60 km/hr (Traffic Safety Act (TSA) infraction) - Constable Halbauer, travelling with another officer and a drug sniffing dog, stopped the van - Halbauer smelled raw marihuana mingled with air freshener in the van - Molleken appeared nervous - He said that they were travelling from Vancouver to Regina - The van was recently registered in a third party's name - In Halbauer's experience, drug dealers knew their vehicles could be confiscated and third party registration might avoid this - He also knew that British Columbia, where the van was coming from, was a source of illegal drugs - He considered the haste at which the pair were apparently travelling - His experience was that drug traffickers liked to get from point A to point B quickly to limit their vulnerability on the road - Molleken's and Pelletier's criminal histories revealed convictions for, inter alia, drug trafficking - At this point, Halbauer arrested them, believing that he had reasonable and probable grounds to believe that the vehicle had drugs in it - Pelletier's purse, left in the van, contained five grams of cannabis marijuana - Significant amounts of cocaine, ritalin, and talwin were also found, hidden inside a peanut butter jar in the van - Other property was also seized, including $1,219 in cash - Molleken and Pelletier were charged with various Controlled Drugs and Substances Act and Criminal Code offences - They applied for an order excluding all the evidence obtained from the search on the basis that their rights under ss. 8 and 9 of the Charter were violated - Halbauer was the only witness - The Saskatchewan Court of Queen's Bench found no Charter violation - The initial stop, being justified by the TSA, was not an arbitrary detention - The subsequent detention was justified because Halbauer had reasonable and probable grounds to make the arrests - The search of the van was incidental to the lawful arrests and therefore not contrary to s. 8 - Pelletier's purse did not garner a greater expectation of privacy.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1508 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1508 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. McLean (J.) (2011), 374 Sask.R. 9; 2011 SKQB 179, refd to. [para. 24].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. 28, footnote 3].

R. v. Volk (T.J.) (2009), 343 Sask.R. 133; 472 W.A.C. 133; 2010 SKCA 3, refd to. [para. 28, footnote 3].

R. v. Tosczak (L.M.) (2010), 343 Sask.R. 295; 472 W.A.C. 295; 2010 SKCA 10, refd to. [para. 28, footnote 3].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 2010 ABCA 180, refd to. [para. 28, footnote 3].

R. v. Nolet (R.) et al. (2009), 320 Sask.R. 179; 444 W.A.C. 179; 245 C.C.C.(3d) 419; 2009 SKCA 8, affd. [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 29].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 30].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 31].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 33].

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. 34].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 34].

Counsel:

S. Wilson, for the applicant, Dennis Allan Molleken;

A. McBride, for the applicant, Vickie Lynn Pelletier;

D. Curliss, Q.C., for the Crown.

This voir dire was heard by Keene, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on February 28, 2012.