R. v. Nielsen, (1988) 66 Sask.R. 293 (CA)

• Judge: Bayda, C.J.S., Brownridge and Hall, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 30, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 66 Sask.R. 293 (CA);1988 CanLII 213 (SK CA);1988 CanLII 213 (BS SC);[1988] 6 WWR 1;43 CCC (3d) 548;39 CRR 147;66 Sask R 293

R. v. Nielsen (1988), 66 Sask.R. 293 (CA)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Colin E. Nielsen (respondent)

(No. 1376)

Indexed As: R. v. Nielsen

Saskatchewan Court of Appeal

Bayda, C.J.S., Brownridge and Hall, JJ.A.

June 30, 1988.

Summary:

A police officer stopped and searched the accused's vehicle without having grounds to do so. As a result of the search, the officer seized evidence, upon which the accused was charged with possession of cannabis resin for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. At trial, the accused sought to have the evidence excluded under s. 24(2) of the Charter of Rights and Freedoms, on the ground that the evidence was obtained as the result of an unreasonable search and seizure contrary to s. 8 of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported in 29 Sask.R. 227, held that the accused's s. 8 Charter rights were violated and ordered that the evidence be excluded. As a result, the accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - Police stopped the accused driver on a routine spot check and without reasonable and probable grounds opened a camera bag in the vehicle, finding glass vials - Based on suspicion alone police then searched the entire vehicle, with the accused's consent - The Saskatchewan Court of Appeal held that the Crown did not establish that the accused waived his s. 8 Charter rights, where the accused did not have full knowledge of his right, the effect of waiver on that right and did not clearly and unequivocally waive the right - See paragraphs 26 to 30.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - After stopping the accused's vehicle on a routine spot check, police made a warrantless search of a camera bag in the vehicle, and then based on suspicion alone, of the entire vehicle, yielding evidence of a possible narcotic offence - The Saskatchewan Court of Appeal held that the first search was made without statutory authority under s. 10(1)(a) of the Narcotic Control Act because the officer lacked reasonable and probable grounds for believing that an offence had been or was about to be committed - Neither was there authority at common law for the search because the evidence was not "in plain view" - The second search was also made without reasonable and probable grounds, but on suspicion alone - The Saskatchewan Court of Appeal held that both searches were unreasonable and contrary to the Charter, s. 8 - See paragraphs 12 to 17; 18 to 31.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Saskatchewan Court of Appeal stated that because the search under scrutiny is a warrantless one, the onus is on the Crown to establish the reasonableness of the search, not upon the accused to establish the unreasonableness - See paragraph 16.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - The Saskatchewan Court of Appeal referred to the "plain view" doctrine, which applied where a peace officer discovered evidence in plain view, while engaged in his lawful duties or lawfully in a place in his capacity as a peace officer - The court refused to apply the doctrine in the case at bar - See paragraphs 14 to 15.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - Waiver of rights - Right to be secure against unreasonable search and seizure - [See Civil Rights - Topic 1645 above].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police stopped the accused's vehicle on a routine spot check, then searched the vehicle without having reasonable and probable grounds to believe that an offence had been or was about to be committed - The search yielded evidence of a possible offence - The Saskatchewan Court of Appeal held that the evidence should be excluded, as its admission would bring the administration of justice into disrepute - The court noted that the Charter breach was deliberate, not inadvertent or technical and a "blatant and flagrant violation of the accused's s. 8 Charter right" - See paragraphs 32 to 41.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [See Civil Rights - Topic 8368 above].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See first Civil Rights - Topic 1646 above].

Cases Noticed:

R. v. Therens (1983), 23 Sask.R. 81; 148 D.L.R.(3d) 672; [1983] 4 W.W.R. 385; 33 C.R.(3d) 204 (C.A.), refd to. [para. 4].

R. v. Collins, [1987] 1 S.C.R. 265; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 38 D.L.R.(4th) 508, appld. [para. 13].

R. v. Askov (1987), 60 C.R.(3d) 261, refd to. [para. 15].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18; 54 C.R.(3d) 144, refd to. [para. 15].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 11 D.L.R.(4th) 641; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 14 C.C.C.(3d) 97; 33 Alta. L.R.(2d) 193; 55 A.R. 291; 2 C.P.R.(3d) 1; 9 C.R.R. 355; 55 N.R. 241, refd to. [para. 16].

R. v. I.D.D., [1988] 1 W.W.R. 673; 60 Sask.R. 72, refd to. [para. 16].

R. v. Stevens (1983), 35 C.R.(3d) 1; 58 N.S.R.(2d) 413; 123 A.P.R. 413, agreed with [para. 21].

R. v. Guse (1983), 37 C.R.(3d) 339, refd to. [para. 22].

R. v. DeBot (1986), 17 O.A.C. 141; 54 C.R.(3d) 120, refd to. [para. 23].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289, consd. [para. 27].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 27].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 C.C.C.(3d) 97; 20 D.L.R.(4th) 321, refd to. [para. 28].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, consd. [para. 29].

R. v. Korponey (1982), 44 N.R. 103 (S.C.C.), refd to. [para. 30].

R. v. Pastro (1988), 66 Sask.R. 241, consd. [para. 33].

R. v. Baylis (1988), 66 Sask.R. 268, consd. [para. 34].

R. v. Therens, [1985] 1 S.C.R. 613; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481; 32 M.V.R. 153; 40 Sask.R. 122; 13 C.R.R. 193; 59 N.R. 122, refd to. [para. 36].

R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; [1987] 4 W.W.R. 590; 58 C.R.(3d) 113, refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 3, 5-6, 10, 12, 17-18, 30-31, 35-36]; sect. 9 [paras. 3, 5]; sect. 10(b) [para. 27]; sect. 24 [para. 3]; sect. 24(2) [paras. 1, 3, 10, 32].

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.11(2)(a) [para. 29].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 4(2) [paras. 1, 13]; sect. 10(1)(a) [paras. 13, 16, 19, 22, 36].

Counsel:

H.H. Dahlem, Q.C. for the appellant;

G.E. Murphy, for the respondent.

This appeal was heard before Bayda, C.J.S., Brownridge and Hall, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on June 30, 1988, when the following opinions were filed:

Bayda, C.J.S. - See paragraphs 1 to 39;

Brownridge, J.A. - See paragraphs 40 to 41.

Hall, J.A., did not participate in this judgment.