R. v. Myette (T.), (2016) 472 Sask.R. 277 (CA)

• Judge: Jaskson, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 20, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 472 Sask.R. 277 (CA);2016 SKCA 11

R. v. Myette (T.) (2016), 472 Sask.R. 277 (CA);

    658 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. FE.006

Her Majesty the Queen (appellant) v. Tyson Dean Myette (respondent)

(CACR2644; 2016 SKCA 11)

Indexed As: R. v. Myette (T.)

Saskatchewan Court of Appeal

Jaskson, Caldwell and Herauf, JJ.A.

February 2, 2016.

Summary:

The accused was charged with possession of cocaine and possession of cocaine for the purpose of trafficking. He applied for the exclusion of evidence found subsequent to his arrest, arguing that his ss. 8 and 9 Charter rights were violated because his arrest was arbitrary and the search incident to his arrest was unreasonable.

The Saskatchewan Provincial Court, in a decision reported at (2015), 471 Sask.R. 1, allowed the application. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A confidential informant advised a police officer that Myette and another man were in a taxi at a certain location and that they had cocaine - The officer located the taxi and followed it for a short period - The taxi stopped at a grocery store and the parking lot of a car dealership - The officer arrested Myette and searched him, finding seven small packages of crack cocaine and $188 in cash - Myette was charged with possession of cocaine and possession of cocaine for the purpose of trafficking - He applied under s. 24(2) of the Charter for the exclusion of evidence found subsequent to his arrest, arguing that his ss. 8 and 9 Charter rights were violated because his arrest was arbitrary and the search incident to his arrest was unreasonable - The trial judge allowed the application - The Crown appealed, arguing that the trial judge erred in concluding that the seriousness of the state conduct and the impact of the breach on Myette's Charter rights favoured exclusion - The Saskatchewan Court of Appeal dismissed the appeal, stating "We acknowledge that the trial judge when considering the impact of the breach on Mr. Myette's Charter rights went further than he should have. As noted by the trial judge, the unlawful arrest and unlawful search were significant infringements on Mr. Myette's Charter rights. That was the basis for his conclusion and what he said afterwards relating to the duration of time Mr. Myette was held in police cells and the conditions of his release were not germane to the Charter inquiry under s. 24(2)." - The trial judge's conclusion was reasonable - See paragraphs 8 to 10.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - Myette was charged with possession of cocaine and possession of cocaine for the purpose of trafficking - He applied under s. 24(2) of the Charter for the exclusion of evidence found subsequent to his arrest, arguing that his ss. 8 and 9 Charter rights were violated because his arrest was arbitrary and the search incident to his arrest was unreasonable - The trial judge allowed the application, finding that the police did not have reasonable grounds to arrest Myette for trafficking - Myette was acquitted - The Crown appealed, arguing that the trial judge failed to consider that Myette was arrestable for simple possession, and that this fact should have been considered in the s. 24(2) analysis - The Saskatchewan Court of Appeal dismissed the appeal - The Charter application and the trial proceeded on the premise that Myette had been arrested for possession of cocaine for the purpose of trafficking instead of simple possession - The Crown did not submit at trial that Myette had been arrestable for simple possession and did not ask the trial judge to consider that issue - Where the argument was not made at trial, it would be improper for this court to order a new trial on that basis - See paragraph 7.

Criminal Law - Topic 4863

Appeals - Indictable offences - Grounds of appeal - Failure to determine issue - [See Criminal Law - Topic 4853 ].

Cases Noticed:

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 7].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 8].

Counsel:

Wade McBride, for the appellant;

Gregory Wilson, for the respondent.

This appeal was heard on January 20, 2016, before Jaskson, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Herauf, J.A., delivered the following judgment for the court on February 2, 2016.