R. v. Nagle (J.N.)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Chiasson, Bennett and Harris, JJ.A.
• Citation: (2012), 327 B.C.A.C. 214 (CA),2012 BCCA 373
• Date: 28 May 2012

R. v. Nagle (J.N.) (2012), 327 B.C.A.C. 214 (CA);

    556 W.A.C. 214

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. SE.013

Regina (appellant) v. Jennifer Nicole Nagle (respondent)

(CA038994; 2012 BCCA 373)

Indexed As: R. v. Nagle (J.N.)

British Columbia Court of Appeal

Chiasson, Bennett and Harris, JJ.A.

September 20, 2012.

Summary:

The accused was charged with possessing methamphetamine for the purpose of trafficking and for the purpose of exportation from Canada. The issue arose as to the admissibility of evidence obtained during the search of the accused's purse and luggage.

The British Columbia Provincial Court held that the accused's Charter rights were contravened and excluded the resulting evidence. As the Crown had not tendered any other evidence, the court found the accused not guilty. The Crown appealed.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Nagle was travelling to Australia via Japan - As she was proceeding to board the plane in Vancouver, a border services officer (Coopman) asked her to step aside to determine compliancy with the reporting requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) - Nagle advised that she had only $1,200 with her - Coopman had Nagle put her purse on a shelf and he searched it - He found $1,200 - Nagle's peculiar routing and her answers to questions about that routing caused Coopman to suspect that he might be dealing with a drug trafficking situation - He advised Nagle of her rights and formally detained her - Methamphetamine was found in her luggage - A trial judge held that Nagle was detained in a constitutional sense when Coopman directed her to the side and asked her to put her purse on the shelf and that the detention had been arbitrary - The search of the purse was unreasonable because, after Coopman knew that Nagle had followed the monetary reporting requirements, he continued searching without fully disclosing his reasons for doing so - Because the information that led to Nagle's formal detention and the search of her luggage had been obtained in violation of her Charter rights, the search of the luggage was also unreasonable - Further, Nagle's ss. 10(a) and 10(b) Charter rights were violated because she was in jeopardy under the PCMLTFA - She should have been informed of her rights when she was asked to step aside and to put her purse on a shelf - The judge excluded the resulting evidence - The British Columbia Court of Appeal allowed the Crown's appeal - Coopman's initial questions and investigation did not go beyond routine screening procedure and did not result in a detention in the constitutional sense - Accordingly, Coopman had no obligation to inform Nagle of her right to counsel - His search of her purse was also part of the routine procedure and was authorized by the PCMLTFA - The expectation of privacy was considerably lower for an international traveller - See paragraphs 30 to 79.

Civil Rights - Topic 1646

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

Civil Rights - Topic 1655

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

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3603

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

Civil Rights - Topic 3604

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

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 12].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 20].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 32].

R. v. Jones (K.C.) (2006), 214 O.A.C. 225; 211 C.C.C.(3d) 4 (C.A.), refd to. [para. 33].

R. v. Sekhon (A.S.) (2009), 270 B.C.A.C. 81; 454 W.A.C. 81; 2009 BCCA 187, refd to. [para. 35].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 36].

R. v. Oluwa (J.) (1996), 75 B.C.A.C. 284; 123 W.A.C. 284; 107 C.C.C.(3d) 236 (C.A.), refd to. [para. 41].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48; 2004 SCC 81, refd to. [para. 42].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 45].

R. v. Hudson (D.A.) (2005), 206 O.A.C. 318 (C.A.), refd to. [para. 74].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61; 45 C.C.C.(3d) 46, refd to. [para. 81].

Counsel:

W.P. Riley, for the appellant;

M. Nathanson and G. Ng, for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 28, 2012, by Chiasson, Bennett and Harris, JJ.A., of the British Columbia Court of Appeal. Chiasson and Bennett, JJ.A., delivered the following reasons for judgment for the court on September 20, 2012.