R. v. Nava (M.J.), 2008 MBQB 163

JudgeKeyser, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateJune 03, 2008
JurisdictionManitoba
Citations2008 MBQB 163;(2008), 229 Man.R.(2d) 276 (QB)

R. v. Nava (M.J.) (2008), 229 Man.R.(2d) 276 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. JN.024

Her Majesty The Queen (respondent) v. Michael John Nava (accused/appellant)

(CR 06-01-26616; 2008 MBQB 163)

Indexed As: R. v. Nava (M.J.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Keyser, J.

June 3, 2008.

Summary:

At his trial on various drug charges, Nava sought exclusion of the evidence that had been obtained through a warrantless search, asserting breaches of ss. 8 and 9 of the Charter.

The Manitoba Court of Queen's Bench excluded the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - An informant told police that drugs would be delivered at a certain address by an Asian male in his 20s - Surveillance was set up - The informant phoned again to say that the delivery would be made by a male driving a brown Toyota - A check revealed the car to be registered to Nava - Minutes later, the brown Toyota appeared - A takedown was ordered - Nava was removed from the vehicle at gunpoint, put on the ground and handcuffed - Marijuana was found in the vehicle and methamphetamine, more marijuana and $2,100 was found on Nava - At his trial on various drug charges, Nava sought exclusion of the evidence, asserting breaches of ss. 8 and 9 of the Charter - The Manitoba Court of Queen's Bench excluded the evidence under s. 24(2) of the Charter - The warrantless search was not justified - The information provided by the informant was not compelling - The evidence regarding the tip's credibility was weak - The informant was a new source and had not provided information leading to previous arrests or search warrants - The police had done nothing to remove the possibility of innocent coincidence - The vehicle was instantly surrounded and "assaulted" - No surveillance had been undertaken nor any verification of the licence plate or description of the driver - The police had predetermined that they were going to arrest an Asian male driving a vehicle near the specified address - The Crown failed to establish reasonable and probable grounds for the arrest - Both the arrest and subsequent search were unlawful - See paragraphs 12 to 28.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1213 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1213 ].

Civil Rights - Topic 1281

Security of the person - Unlawful arrest - General - [See Civil Rights - Topic 1213 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1213 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An informant told police that drugs would be delivered at a certain address by an Asian male in his 20s - Surveillance was set up - The informant phoned again to say that the delivery would be made by a male driving a brown Toyota - A check revealed the car to be registered to Nava - Minutes later, the brown Toyota appeared - A takedown was ordered - Nava was removed from the vehicle at gunpoint, put on the ground and handcuffed - Marijuana was found in the vehicle and methamphetamine, more marijuana and $2,100 was found on Nava - At his trial on various drug charges, Nava sought exclusion of the evidence, asserting breaches of his rights under ss. 8 and 9 of the Charter - The Manitoba Court of Queen's Bench excluded the evidence under s. 24(2) of the Charter - Both the arrest and subsequent search were unlawful - The breaches were serious - From the first operational meeting, there was no attempt to ascertain the basis of the information, even though the informant was new and the need for verification was known - A decision was made to stop and search the car even before any information on Nava was received - The possibility of innocent coincidence was not discounted once Nava's name was retrieved from the Motor Vehicles Branch - The average citizen would be disturbed to discover that he or she could be surrounded by armed police, removed from a car at gunpoint and handcuffed on the ground without proper investigatory steps being undertaken - Admission of the evidence would bring the administration of justice into greater disrepute than would exclusion - See paragraphs 29 to 38.

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1213 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1213 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1213 ].

Cases Noticed:

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para.10].

R. v. Deol (R.S.) (2006), 205 Man.R.(2d) 104; 375 W.A.C. 104 (C.A.), refd to. [para. 14].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 19].

R. v. Bercier (T.J.) (2004), 184 Man.R.(2d) 106; 318 W.A.C. 106; 2004 MBCA 51, refd to. [para. 23].

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. 27].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193 (S.C.C.), refd to. [para. 30].

R. v. Basta (F.C.) (2004), 244 Sask.R. 224 (Q.B.), refd to. [para. 34].

Counsel:

Ian Mahon, for the Crown;

Sheldon Pinx, Q.C., for the accused.

This application was heard by Keyser, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 3, 2008.

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1 practice notes
  • R. v. Bissat, 2018 BCSC 1964
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 11, 2018
    ...acted on here: see, for example, R. v. Marcelin, 2015 MBQB 98; R. v. MacDonald, 2015 NSSC 297; R. v. Myette, 2015 SKPC 100; R. v. Nava, 2008 MBQB 163, R. v. Zammit (1993), 81 C.C.C. (3d) 112 (Ont. C.A.); R. v. Sarchiz, 2015 ONSC 3544; R. v. Fraser, 2013 BCPC 59; R. v. Whitton, 2018 BCSC [27......
1 cases
  • R. v. Bissat, 2018 BCSC 1964
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 11, 2018
    ...acted on here: see, for example, R. v. Marcelin, 2015 MBQB 98; R. v. MacDonald, 2015 NSSC 297; R. v. Myette, 2015 SKPC 100; R. v. Nava, 2008 MBQB 163, R. v. Zammit (1993), 81 C.C.C. (3d) 112 (Ont. C.A.); R. v. Sarchiz, 2015 ONSC 3544; R. v. Fraser, 2013 BCPC 59; R. v. Whitton, 2018 BCSC [27......

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