R. v. Nolet (R.) et al., 2006 SKQB 393

• Judge: Pritchard, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 22, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKQB 393;(2006), 283 Sask.R. 159 (QB)

R. v. Nolet (R.) (2006), 283 Sask.R. 159 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. AU.026

In The Matter Of an indictment dated the 23rd day of November, 2004 charging the applicants, Regent Nolet and John Vatsis, pursuant to section 5(2) of the Controlled Drug and Substances Act and, pursuant to section 354(1)(a) of the Criminal Code of Canada;

And In The Matter Of an application by Regent Nolet and John Vatsis to exclude from evidence, pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms, all seized material which is the subject of this indictment on the basis that the said material was seized in circumstances which violated and infringed section 8, section 9 and section 10 of the Canadian Charter of Rights and Freedoms.

Her Majesty the Queen (respondent) v. Regent Nolet and John Vatsis (applicants)

(2004 CRIM No. 1981; 2006 SKQB 393)

Indexed As: R. v. Nolet (R.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Pritchard, J.

August 22, 2006.

Summary:

The accused were charged with trafficking in marijuana, possession of marijuana for the purposes of trafficking and possession of proceeds of crime in excess of $5,000. They applied to exclude evidence from their trial on the basis that the arresting officer violated ss. 8, 9 and 10 of the Charter.

The Saskatchewan Court of Queen's Bench allowed the application and excluded the evidence.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it, allegedly expecting to find documents, but found $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police determined that the trailer probably had a false compartment at the front - The police had an accused drive the vehicle to the detachment - The police found a hidden compartment and 550 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The Saskatchewan Court of Queen's Bench held that the warrantless search of the duffel bag and the warrantless search of the trailer some two hours following the arrest breached the accused's s. 8 Charter rights - The officer lacked reasonable and probable grounds to arrest the accused for possession of proceeds of crime - Therefore, the arrest was contrary to s. 9 of the Charter - Once the officer became suspicious that alterations had been made to the trailer, the focus of his inquiry shifted from a regulatory inspection to a criminal investigation - Given this change in focus, he required either informed consent or reasonable and probable grounds to continue searching for evidence to support his suspicions, neither of which existed - Alternatively, there were no exigent circumstances that required the police to further search the trailer without obtaining a warrant and the warrantless search of the trailer at the detachment could not be justified as incidental to arrest - The totality of the Charter breaches were so serious as to warrant exclusion of the resulting evidence - The administration of justice would suffer greater disrepute if the evidence was admitted.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1651

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1646 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Civil Rights - Topic 1646 ].

Police - Topic 3185

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

Cases Noticed:

Johnson v. Ontario (Minister of Revenue) (1990), 41 O.A.C. 129; 75 O.R.(2d) 558 (C.A.), refd to. [para. 15].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 107 C.C.C.(3d) 195 (C.A.), refd to. [para. 15].

R. v. Diep (K.T.) (2005), 363 A.R. 321; 343 W.A.C. 321; 2005 ABCA 54, dist. [para. 20].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 20].

R. v. Caprara (R.) (2006), 211 O.A.C. 211 (C.A.), refd to. [para. 21].

R. v. Yague (D.C.) (2005), 371 A.R. 286; 354 W.A.C. 286; 2005 ABCA 140, refd to. [para. 22].

R. v. Ladouceur (M.J.) (2002), 223 Sask.R. 161; 277 W.A.C. 161; 2002 SKCA 73, refd to. [para. 23].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 131 C.C.C.(3d) 1; 167 D.L.R.(4th) 672 (C.A.), refd to. [para. 27].

R. v. Bolczak (P.) (2005), 198 Man.R.(2d) 1; 2005 MBQB 56, refd to. [para. 29].

R. v. I.D.D. (1987), 60 Sask.R. 72; 38 C.C.C.(3d) 289 (C.A.), refd to. [para. 32].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46; 27 C.R.(6th) 19; 2005 SKCA 8, refd to. [para. 33].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137; 31 C.R.(6th) 311; 2005 SKCA 90, refd to. [para. 38].

R. v. Caslake (T.L.) (1998), 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 39].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 45].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; [1987] 3 W.W.R. 699, refd to. [para. 52].

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. 52].

Counsel:

David K. Rusnak, for the Crown;

Hugh M. Harradence, Q.C., for the applicant, Regent Nolet;

Mark Brayford, Q.C., for the applicant, John Vatsis.

This application was heard by Pritchard, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on August 22, 2006.