R. v. Mousseau (W.J.), 2015 MBQB 190

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 01, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 190;(2015), 324 Man.R.(2d) 239 (QB)

R. v. Mousseau (W.J.) (2015), 324 Man.R.(2d) 239 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.033

Her Majesty The Queen v. Waylon Joseph Mousseau (accused)

(CR 14-01-34030; 2015 MBQB 190)

Indexed As: R. v. Mousseau (W.J.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

December 1, 2015.

Summary:

The accused was charged with firearms offences. He moved for the exclusion of evidence under s. 24(2) of the Charter, asserting violations of his ss. 8, 9 and 10(b) Charter rights.

The Manitoba Court of Queen's Bench dismissed the motion.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Police heard gunshots fired in their immediate vicinity at 4:18 a.m. - They pursued a male who was riding a bicycle but he was able to avoid them - At 4:23 a.m., they detained the accused who was seen walking very briskly - When asked what he was doing in the area, the accused responded that he had just been assaulted and was on his way home - Police concluded that his explanation was plausible and released him after about three minutes - Around 4:45 a.m., two different police officers saw the accused with a bicycle - The accused put the bicycle down carefully, crouched down and crept toward a house - The police arrested the accused and charged him with firearms offences - The accused argued that his Charter rights were violated because the police lacked reasonable and probable grounds to arrest him - The Manitoba Court of Queen's Bench held that the arrest was lawful - The police believed they had reasonable and probable grounds to arrest the accused given the totality of the circumstances, which included the fact that they encountered the accused within 20 minutes of the shooting incident and about two blocks away - The accused was light skinned, wearing dark clothing, and was walking with a bicycle, which conformed to the description police were given - The accused's conduct on seeing the police suggested that he was trying to avoid detection - See paragraphs 13 to 16.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police heard gunshots fired in their immediate vicinity at 4:18 a.m. - They saw a male riding a bicycle less than a block away but he was able to avoid them - A couple of minutes later, they saw a male run across the road and then disappear between houses - A police helicopter located someone a block away - The police drove in that direction and encountered the accused walking very briskly - The accused was handcuffed and placed in the police car at 4:23 a.m. - He was released about three minutes later, but subsequently arrested and charged with firearms offences - The accused argued that the detention was unlawful and in violation of his Charter rights - The Manitoba Court of Queen's Bench held that the detention was lawful - The police had a reasonable suspicion that the accused had possibly engaged in some criminal activity - The shooting incident happened less than 10 minutes earlier and about two blocks away - The accused was the only person seen in that area - The handcuffing and placement of the accused in the police car was also reasonable - The officers had legitimate safety concerns - The detention was also very brief - See paragraphs 10 to 12.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for firearms offences at 4:45 a.m. - He arrived at the police station at 4:52 a.m. - At 5:05 a.m., his clothing was seized - Gunshot residue (GSR) testing was performed from 5:40 to 5:49 a.m. - The accused was permitted to speak to a lawyer at 5:55 a.m. - The accused argued that his s. 10(b) Charter rights were violated by the delay in accessing a lawyer - The Manitoba Court of Queen's Bench rejected this argument - GSR testing was a search incidental to arrest - The delay in implementing the test was because the officer had to locate and obtain the GSR kit - During that time, the accused could not be given privacy in order to speak to a lawyer because he was being continually observed to ensure that he did not try to destroy any GSR that might be on him - See paragraphs 22 to 24.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for firearms offences - During his formal police interview, one officer (Comte) expressed surprise that the accused's lawyer did not want to know the charges the accused was facing when Comte called him - Comte also asserted that all lawyers gave clients the same advice, namely, not to say anything - Comte stated that he himself had once been charged with assault and retained "one of the best lawyers in the city" who also told him to say nothing - However, Comte did not follow this advice and after giving his explanation no charges were pursued - The accused argued that his s. 10(b) Charter rights were violated by Comte's comments as they were belittling and intended to undermine the relationship between the accused and his lawyer - The Manitoba Court of Queen's Bench rejected this argument - While ill advised, Comte's remarks were neither intended nor had the effect of undermining the relationship between the accused and his lawyer - Comte's comment that he had ignored his lawyer's advice and no charges were laid was tempered by his subsequent remark "I'm not telling you that's what you should do" - In addition, Comte's explanation for his approach (that he was trying to relate to the accused to lower his anxiety) offered some explanation for his intention - See paragraphs 25 and 26.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police heard gunshots fired in their immediate vicinity at 4:18 a.m. - At 4:23 a.m., two officers detained and questioned the accused who was seen walking in the area - The accused was released about three minutes later, but arrested by two different officers at 4:45 a.m. and charged with firearms offences - The accused argued that his s. 10(b) Charter rights were violated when the first set of officers questioned him before providing him with his rights to counsel - He moved for the exclusion of evidence, including verbal comments he made after his arrest, the results of a gunshot residue (GSR) test, and his formal videotaped statement - The Manitoba Court of Queen's Bench dismissed the motion - The connection between the first officers' actions and the evidence in issue was too remote to find that the evidence was obtained in a manner that violated the Charter - There was no causal connection - None of the information obtained by the first officers influenced the second officers' decision to arrest, or was used by subsequent officers in their questioning of the accused or in obtaining the GSR results - The temporal connection was also very tenuous - See paragraphs 18 to 21.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1262 ].

Cases Noticed:

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 10].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 14].

R. v. Jacob (J.A.) (2013), 291 Man.R.(2d) 135; 570 W.A.C. 135; 2013 MBCA 29, refd to. [para. 14].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 19].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 19].

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. 25].

Counsel:

Michael G. Himmelman, for the Crown;

Daniel Manning, for the accused.

This Charter motion was heard before Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on December 1, 2015.