R. v. Nguyen (H.Q.) et al., (2008) 324 Sask.R. 1 (CA)

• Judge: Jackson, Smith and Hunter, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 21, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 324 Sask.R. 1 (CA);2008 SKCA 160

R. v. Nguyen (H.Q.) (2008), 324 Sask.R. 1 (CA);

    451 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JA.001

Her Majesty the Queen (appellant) v. Hung Quoc Nguyen, Duy Kien Nguyen and David Matthew Reith (respondents)

(No. 1334; 2008 SKCA 160)

Indexed As: R. v. Nguyen (H.Q.) et al.

Saskatchewan Court of Appeal

Jackson, Smith and Hunter, JJ.A.

December 12, 2008.

Summary:

Three accused were charged with possession of marijuana for the purpose of trafficking. Nineteen pounds of marijuana had been found during a search of a motor vehicle in which the accused were travelling. The accused applied to exclude the evidence, alleging a breach of their ss. 8 and 9 Charter rights.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2007), 294 Sask.R. 179, found that there had been breaches of the accused's ss. 8 and 9 Charter rights. The court excluded the evidence under s. 24(2) of the Charter. The accused were acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, Smith, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 1281

Security of the person - Unlawful arrest - General - A police officer stopped a motor vehicle for driving too fast for the road conditions - The rented car was occupied by the three accused, Hung Nguyen, Duy Nguyen and David Reith - The officer became suspicious that the accused were drug traffickers because two of them appeared nervous, their explanation about how long they were going to stay in Toronto did not make sense, after the driver was only given a warning for speeding he kept apologizing to the officer, and the smell of cologne permeated the vehicle - The officer arrested the three accused and the vehicle was searched - Nineteen pounds of marijuana were found - The trial judge held that the officer did not have reasonable and probable grounds to arrest the accused, the arrest was in breach of s. 9 of the Charter, and the search was therefore unreasonable in breach of s. 8 of the Charter - In excluding the evidence under s. 24(2), the trial judge considered that the police officer was not acting in good faith and the breach was serious - The accused were acquitted - The Crown appealed, arguing that the trial judge erred in failing to consider the Charter rights of each accused separately - In particular, the Crown argued that the trial judge failed to consider whether Reith's statement to the effect that there were lots of the drugs in the vehicle, which was made after the arrest of Hung Nguyen and Reith, but prior to the arrest of Duy Nguyen, gave the officer reasonable and probable grounds for that last arrest - The Saskatchewan Court of Appeal dismissed the appeal - Crown counsel at trial did not ask any questions of the arresting officer about Reith's statement in relation to the arrest of Duy Nguyen or refer to it in oral argument to support the arrest - If he had done so, he would have run the risk of the statement being excluded, and of not being able to use it as part of his argument that the marijuana should not be excluded under s. 24(2) - The court held that the Crown should not be permitted the opportunity of a new trial to attempt to convict the accused by taking a different approach - Secondly, if the case had been presented to the trial judge in the way suggested by the Crown on appeal, the trial judge may very well have found other violations of both ss. 8 and 9 of the Charter arising from the investigative detention of the accused and the questioning of the accused about the presence of drugs in the vehicle and there was a real possibility that the Reith statement would have been excluded, and acquittals entered in any event - The court commented that the investigative detention in this case could not be justified on the basis of R. v. Mann (S.C.C.) and that a warrantless search for drugs began when two of the accused were asked about the presence of drugs in the vehicle - Since the court would also sustain the trial judge's s. 24(2) analysis, it dismissed the appeal - See paragraphs 1 to 50.

Civil Rights - Topic 1650.1

Property - Search and seizure - Warrantless search and seizure - What constitutes - [See Civil Rights - Topic 1281 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1281 ].

Civil Rights - Topic 3543

Detention and imprisonment - Imprisonment - What constitutes arbitrary imprisonment - [See Civil Rights - Topic 1281 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1281 ].

Civil Rights - Topic 8411

Canadian Charter of Rights and Freedoms - Criminal proceedings - Appeals - [See Civil Rights - Topic 1281 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 1281 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for first time on appeal - [See Civil Rights - Topic 1281 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1281 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1281 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - The Saskatchewan Court of Appeal stated that "The Court in Mann [S.C.C.] carefully placed strict limits on the use of investigative detention. There must be: (i) 'a recent or on-going criminal offence'; and (ii) a 'clear nexus' between the detainee and that offence. Having satisfied these two criterion, the decision to detain must be 'further assessed' against all of the circumstances to ensure that the detention was reasonably necessary. Investigative detention will not avoid Charter challenge if its purpose is to determine whether a crime has been or is being committed as opposed to determining whether the detainee is linked to a recent or on-going crime. Nothing in R. v. Kang-Brown [S.C.C.] changes this analysis. Before a police officer can detain a person for investigative purposes, there must be some aspect of the circumstances, relied upon by the officer, to permit a future judicial assessment as to whether a crime has been or is being committed or is about to be committed, as a first step in the Mann analysis" - See paragraphs 13 to 14.

Cases Noticed:

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268, refd to. [para. 7].

R. v. Walker (B.G.) (2008), 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305 (S.C.C.), refd to. [para. 7].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [paras. 11, 85].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [paras. 12, 85].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1 (S.C.C.), refd to. [para. 13].

R. v. Rutten (G.) (2006), 279 Sask.R. 201; 372 W.A.C. 201; 2006 SKCA 17, consd. [para. 16].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 29, 68].

Wexler v. The King, [1939] S.C.R. 350, refd to. [paras. 38, 111].

R. v. Merson (1983), 4 C.C.C.(3d) 251 (B.C.C.A.), refd to. [para. 38].

R. v. Varga (E.) (1994), 72 O.A.C. 141 (C.A.), refd to. [para. 38].

R. v. Trabulsey (K.) et al. (1995), 80 O.A.C. 43 (C.A.), refd to. [para. 38].

R. v. Elms (M.) (2006), 216 O.A.C. 112 (C.A.), refd to. [para. 38].

R. v. Harris (G.C.) (2005), 260 Sask.R. 156; 2005 SKQB 111, refd to. [paras. 41, 66].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [paras. 48, 75].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), refd to. [paras. 48, 101].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 71].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 72].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 214 C.C.C.(3d) 547; 2006 ABCA 333, refd to. [para. 73].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286; 218 C.C.C.(3d) 113; 2007 SKCA 29, refd to. [para. 74].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 76].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 78].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 79].

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. 79].

R. v. Willis (R.), [2003] 10 W.W.R. 18; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2003 MBCA 54, refd to. [para. 86].

R. v. Willis (P.H.), [2002] 11 W.W.R. 435; 166 Man.R.(2d) 260; 278 W.A.C. 260; 2002 MBCA 121, refd to. [para. 86].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [para. 86].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156; 195 C.C.C.(3d) 162; 2005 NSCA 47, refd to. [para. 86].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 93].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 93].

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117; 304 W.A.C. 117; 175 C.C.C.(3d) 452; 2003 MBCA 76, refd to. [para. 101].

R. v. Pimentel (J.R.A.), [2001] 2 W.W.R. 653; 145 Man.R.(2d) 295; 218 W.A.C. 295; 2000 MBCA 35, refd to. [para. 101].

R. v. Sieben (1989), 99 A.R. 379; 51 C.C.C.(3d) 343 (C.A.), refd to. [para. 101].

R. v. Moore (1988), 89 N.S.R.(2d) 199; 227 A.P.R. 199; 45 C.C.C.(3d) 410 (C.A.), refd to. [para. 101].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 101].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, consd. [para. 104].

R. v. Upston, [1988] 1 S.C.R. 1083; 86 N.R. 16, refd to. [para. 106].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 111].

R. v. Blinch (R.J.) (1993), 31 B.C.A.C. 131; 50 W.A.C. 131; 83 C.C.C.(3d) 158 (C.A.), refd to. [para. 113].

Counsel:

Douglas G. Curliss, for the Crown;

Richard A. Leland, for Hung Quoc Nguyen;

Lynda D. Bordessa, for Duy Kien Nguyen;

Gary Moore, for David Matthew Reith.

This appeal was heard on May 21, 2008, before Jackson, Smith and Hunter, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on December 12, 2008, including the following opinions:

Jackson, J.A. (Hunter, J.A., concurring) - see paragraphs 1 to 50;

Smith, J.A., dissenting - see paragraphs 51 to 114.