R. v. Nguyen (V.N.), 2006 MBQB 120

• Judge: Hanssen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 19, 2006
• Jurisdiction: Manitoba
• Citations: 2006 MBQB 120;(2006), 204 Man.R.(2d) 54 (QB)

R. v. Nguyen (V.N.) (2006), 204 Man.R.(2d) 54 (QB)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JN.012

Her Majesty The Queen v. Van Ngia Nguyen (accused)

(CR 05-01-26441; 2006 MBQB 120)

Indexed As: R. v. Nguyen (V.N.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Hanssen, J.

May 19, 2006.

Summary:

The accused sought to exclude from evidence 170 pounds of marijuana, which was seized from his truck on the day of his arrest. He argued that the evidence was obtained in violation of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter.

The Manitoba Court of Queen's Bench held that the accused's Charter rights were not breached.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Constable Walkden stopped the accused's vehicle because of a possible seatbelt violation - His observations made him suspect that the accused and his passenger were drug couriers - He returned to his cruiser to check the accused's driver's licence and registration and called for an officer (Karsin) with a narcotics detection dog - Karsin deployed the dog around the vehicle - It indicated the presence of illicit drugs - The Manitoba Court of Queen's Bench held that the dog sniff did not violate the accused's s. 8 Charter rights - The accused's subjective expectation of privacy in the contents of the baggies (marijuana) was not reasonable - The drug detection dog searched the open air surrounding the accused's vehicle - The accused had no right to control access to the place where the dog was sniffing - It was open to the public - The odour was exposed to the public - The search was non-intrusive - The use of the dog was not a search within the meaning of s. 8 - See paragraphs 23 to 37.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

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

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Constable Walkden stopped a pickup truck because he thought that the passenger was not wearing a seatbelt - His observations made him suspect that the accused and the passenger were drug couriers - He returned to his cruiser to check the driver's licence and registration and called for an officer (Karsin) with a narcotics detection dog - When Karsin arrived Walkden pushed down on the truck bed liner - It felt pliable and a faint scent of marijuana arose - Walkden told the accused and the passenger that they were being detained under the Controlled Drugs and Substances Act and gave them their Charter rights to counsel and the police warning - He did a pat down search of the accused - Karsin deployed the dog, which indicated the presence of illicit drugs - The officers dropped the tail-gate and saw clear plastic bags containing marijuana between the liner and the side of the vehicle - Walkden arrested the accused and the passenger and again advised them of their rights - A warrant to search the vehicle was obtained - The Manitoba Court of Queen's Bench held that the dropping of the tailgate was a valid search incidental to arrest even though it occurred prior to the arrest - See paragraph 38.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See second Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Constable Walkden stopped a pickup truck because he thought that the passenger was not wearing a seatbelt - The accused was unusually nervous and the vehicle looked like they were eating and sleeping in it - The truck had a box liner that was longer than normal, very clean (apparently new) and "overly well-secured" - Box liners created a void between the liner and the truck bed - The licence plate was from British Columbia, a source area for cannabis marijuana - These observations made Walkden suspect that the accused and the passenger were drug couriers - He returned to his cruiser to check the driver's licence and registration and check the accused for a criminal record and outstanding warrants - He then called Constable Karsin to bring a narcotics detection dog - The Manitoba Court of Queen's Bench held that the accused and the passenger were not arbitrarily detained before Walkden called Karsin - Walkden had authority under the Highway Traffic Act to stop the vehicle to investigate the possible seatbelt violation and to conduct a routine check of the accused's driver's licence and registration - Further, he had reasonable grounds to suspect that the accused and the passenger were transporting narcotics and he was entitled to detain them for investigative purposes - See paragraphs 15 to 18.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Constable Walkden stopped a pickup truck because he thought that the passenger was not wearing a seatbelt - His observations made him suspect that the accused and the passenger were drug couriers - He returned to his cruiser to check the driver's licence and registration and called for an officer (Karsin) with a narcotics detection dog - When Karsin arrived Walkden told the accused and the passenger that they were being detained under the Controlled Drugs and Substances Act and gave them their Charter rights to counsel and the police warning - The Manitoba Court of Queen's Bench held that the accused's ss. 10(a) and 10(b) rights to counsel were not violated - Walkden decided to detain the accused and the passenger for a drug investigation as he was walking back to the police cruiser - He delayed telling them for safety reasons - The delay was brief and there was no interaction between Walkden and the accused during that time - See paragraphs 19 to 22.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See second Civil Rights - Topic 1646 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1646 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 3603 ].

Cases Noticed:

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, refd to. [para. 18].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 25].

R. v. Lam - see R. v. Dinh (H.T.) et al.

R. v. Dinh (H.T.) et al. (2003), 330 A.R. 63; 299 W.A.C. 63 (C.A.), refd to. [para. 26].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 26].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 30].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48 (Q.B.), refd to. [para. 31].

R. v. Gosse (R.W.) (2005), 292 N.B.R.(2d) 254; 761 A.P.R. 254 (T.D.), refd to. [para. 31].

R. v. Davis, [2005] B.C.J. No. 90 (Prov. Ct.), refd to. [para. 31].

R. v. McCarthy (T.J.) (2005), 239 N.S.R.(2d) 23; 760 A.P.R. 23 (Prov. Ct.), refd to. [para. 31].

R. v. McLay (S.W.) (2006), 299 N.B.R.(2d) 207; 778 A.P.R. 207 (Prov. Ct.), refd to. [para. 31].

R. v. Gallant (J.S.) (2006), 300 N.B.R.(2d) 289; 782 A.P.R. 289 (T.D.), refd to. [para. 31].

R. v. Binning (M.S.) et al., [2006] B.C.T.C. 576 (S.C.), refd to. [para. 31].

R. v. Peardon, [2005] B.C.J. No. 807 (Prov. Ct.), refd to. [para. 31].

R. v. A.M. (2006), 209 O.A.C. 257 (C.A.), dist. [para. 32].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 38].

R. v. Sinclair (E.J.) (2005), 192 Man.R.(2d) 283; 340 W.A.C. 283 (C.A.), leave to appeal dismissed, [2005] S.C.C.A. No. 263; 347 N.R. 200, refd to. [para. 38].

Counsel:

Anne Krahn and Anne Turner, for the Crown;

Sarah A. Inness, for the accused.

This application was heard by Hanssen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on May 19, 2006.