R. v. Montgrand (R.H.), (1995) 135 Sask.R. 287 (PC)

• Judge: Nightingale, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: September 25, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 135 Sask.R. 287 (PC)

R. v. Montgrand (R.H.) (1995), 135 Sask.R. 287 (PC)

MLB headnote and full text

Her Majesty The Queen, on the Information of Cst. Lewis Philip Weber, a member of the Royal Canadian Mounted Police and a Peace Officer v. Roy Hubert Montgrand

Indexed As: R. v. Montgrand (R.H.)

Saskatchewan Provincial Court

Nightingale, P.C.J.

September 25, 1995.

Summary:

The accused was charged with possession of marijuana. The accused objected to the admission of plant material and other items found in his room, and to the admission of the results of an analysis of the plant material, on the basis that the materials were located during an unreasonable search under s. 8 of the Charter. The accused sought exclusion of the evidence under s. 24(2) of the Charter.

The Saskatchewan Provincial Court held that there had been a breach of the accused's s. 8 Charter rights and that the evidence should be excluded under s. 24(2).

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - Police officers went to the accused's resi­dence to arrest him on an outstanding traffic warrant - The accused's sister answered the door, opened the interior door to the basement and called out the accused's name - Upon that door being opened, the officers smelled marijuana - One officer went down the stairs, pushed past the accused and entered a closed room where he observed, inter alia, plant material (marijuana) and marijuana ciga­rettes - The accused was arrested for possession of marijuana - He was never arrested on the traffic warrant - The Saskatchewan Provincial Court held that the search breached the accused's s. 8 Charter rights - The criteria for search as an incident of arrest did not exist and the plain view doctrine could not be relied upon - See paragraphs 21 to 42.

Civil Rights - Topic 1650

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

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - The Saskatchewan Pro­vincial Court referred to the conditions precedent that must exist in order for police to rely on the plain view doctrine to seize items without a search warrant - See paragraph 23.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police officers went to the accused's residence to arrest him on an outstanding traffic warrant - The accused's sister answered the door, opened the interior door to the basement and called out the accused's name - Upon that door being opened, the officers smelled mari­juana - One officer went down the stairs, pushed past the accused and entered a closed room where he observed, inter alia, plant material (marijuana) and marijuana cigarettes - The accused was arrested for marijuana possession - The Saskatchewan Provincial Court held that the search breached the Charter, s. 8, and that the evidence should be excluded where its admission could tend to render the trial process unfair, there had been a lack of good faith by police and the administration of justice was better served by excluding the evidence - See paragraphs 43 to 57.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - An accused charged with possession of marijuana objected to the admission of plant material and other items, and to the results of an analysis of the plant material, alleging a breach of the Charter, s. 8 - No objection to admission was made when the plant material and related objects were tendered by the Crown - It was only when the chemical analysis results were adduced that notice of an alleged Charter breach was given - The Saskatchewan Provincial Court stated that the latest point at which objection could legitimately be taken to the admission of evidence was when it was introduced - However, the court was prepared to hear the accused's application where, inter alia, the Crown did not require time to respond and did not wish to call evidence - See paragraphs 3 to 8.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Kutynec (1992), 52 O.A.C. 59; 12 C.R.(4th) 152 (C.A.), refd to. [para. 5].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), leave to appeal refused (1993), 151 N.R. 400; 141 A.R. 317; 46 W.A.C. 317; 79 C.C.C.(3d) vi (S.C.C.), refd to. [para. 5].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214; 38 C.R.(4th) 242 (C.A.), refd to. [para. 5].

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, appld. [para. 21].

R. v. Acciavatti (M.J.) (1993), 62 O.A.C. 137; 80 C.C.C.(3d) 109 (C.A.), refd to. [para. 22].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18; 30 C.C.C.(3d) 163 (C.A.), refd to. [para. 23].

R. v. Askov (1987), 60 C.R.(3d) 261 (Ont. Dist. Ct.), refd to. [para. 23].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 24].

R. v. Concepcion (A.) et al. (1994), 48 B.C.A.C. 44; 78 W.A.C. 44 (C.A.), consd. [para. 25].

R. v. Lim (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), consd. [para. 26].

R. v. Evans (C.R.) et al. (1994), 49 B.C.A.C. 264; 80 W.A.C. 264; 93 C.C.C.(3d) 130 (C.A.), consd. [para. 27].

R. v. Peterson (D.H.) (1994), 50 B.C.A.C. 24; 82 W.A.C. 24; 24 C.R.R.(2d) 136 (C.A.), refd to. [para. 27].

R. v. DeBot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), consd. [para. 34].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 24 C.R.(4th) 1, consd. [para. 44].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 24 C.R.(4th) 34, consd. [para. 44].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 24 C.R.(4th) 47, consd. [para. 44].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 16 C.R.(4th) 273; 76 C.C.C.(3d) 481, consd. [para. 44].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61; 66 C.R.(3d) 336; 45 C.C.C.(3d) 46, appld. [para. 44].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129; 67 C.R.(3d) 209; 37 C.R.R. 369, refd to. [para. 46].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, consd. [para. 46].

R. v. Ironeagle (1989), 76 Sask.R. 253; 49 C.C.C.(3d) 339; 70 C.R.(3d) 164 (C.A.), consd. [para. 51].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, consd. [para. 52].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 3 et seq.].

Counsel:

Gerald Perkins, for the Crown;

Ronald Piche, for the accused.

This application was heard before Night­ingale, P.C.J., of the Saskatchewan Provin­cial Court, who delivered the following judgment on September 25, 1995.