R. v. Patrick (R.S.), (2007) 417 A.R. 276 (CA)

• Judge: Conrad, Ritter and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 13, 2007
• Citations: (2007), 417 A.R. 276 (CA);2007 ABCA 308

R. v. Patrick (R.S.) (2007), 417 A.R. 276 (CA);

      410 W.A.C. 276

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. OC.139

Her Majesty the Queen (respondent) v. Russell Stephen Patrick (appellant)

(0601-0158-A; 2007 ABCA 308)

Indexed As: R. v. Patrick (R.S.)

Alberta Court of Appeal

Conrad, Ritter and Watson, JJ.A.

October 18, 2007.

Summary:

The accused was charged with production of ecstasy, possession of ecstasy for the purpose of trafficking and trafficking in ecstasy. The police obtained a search warrant on the basis of, inter alia, informant information and evidence seized as a result of warrantless searches of the accused's garbage. The police executed the search and discovered a clandestine lab. The accused asserted that his ss. 8 and 10(b) Charter rights were violated and that all the evidence seized as a result of the searches should be excluded.

The Alberta Provincial Court, in a decision reported at 388 A.R. 202, rejected the accused's argument. There were no Charter breaches. The court found the accused guilty. The accused appealed.

The Alberta Court of Appeal, Conrad, J.A., dissenting, dismissed the appeal.

Editor's note: for the sentencing decision in this matter, see 402 A.R. 231 (Prov. Ct.).

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused was charged with drug related offences - The accused asserted that his s. 8 Charter right to be free of unreasonable search and seizure was breached when police officers searched his garbage and seized evidence - The garbage can and bags were located at an indentation in a fence that ran along the property line - There were no barriers or lids and the garbage could be seen and accessed from the adjacent alley - The police simply crossed the property line with their hands to access the garbage - The Alberta Court of Appeal affirmed that there was no breach of s. 8 - While the accused might have had a subjective expectation of privacy in the garbage, the accused gave up that right when he abandoned the garbage by placing it at the indentation in the fence specifically for the purpose of garbage collection and disposal - In the same way that the accused relinquished control over the garbage, he also gave up all ability to regulate the use of the garbage - On any measure, the expectation of privacy respecting garbage was substantially less than what one would expect for items left but not abandoned in a yard and more so relative to items found in a home - The accused did not have an expectation of privacy in the abandoned garbage - See paragraphs 10 to 43.

Civil Rights - Topic 1608

Property - Search warrants - Request by accused to see warrant - The accused was charged with drug related offences - The police obtained a search warrant to search the accused's home - The accused asserted that his s. 8 Charter right to be free of unreasonable search and seizure was breached when police officers executed the search warrant but refused to show him the warrant even when he made several requests to see it - Accordingly, he argued, the police had violated s. 29(1) of the Criminal Code - The Alberta Court of Appeal affirmed the trial judge's decision rejecting the argument - The execution of the warrant necessitated a forcible entry into a clandestine lab where the circumstances had potential for both destruction of evidence and risk to human safety - An officer had the warrant in his briefcase and waited outside until the residence was secured and it was safe to enter - The officer then placed the warrant on the kitchen table - The earliest feasible time that the accused could have seen the warrant was when he had been arrested and placed in a police cruiser after the search was well underway - In any event, there was no connection between the failure to produce the warrant properly and the obtaining of evidence - See paragraphs 45 to 51.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 and Civil Rights - Topic 1608 ].

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 5].

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. 8].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 11 D.L.R.(4th) 641, refd to. [para. 11].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287, refd to. [para. 11].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [paras. 11, 69].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 11].

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. 11, 81].

R. v. Truong (S.H.) (2002), 169 B.C.A.C. 97; 276 W.A.C. 97; 2002 BCCA 315, dist. [para. 17].

R. v. Krist (J.) (1995), 62 B.C.A.C. 133; 103 W.A.C. 133; 100 C.C.C.(3d) 58; 42 C.R.(4th) 159 (C.A.), refd to. [paras. 19, 70].

R. v. Kennedy - see R. v. Joyce (R.C.) and Kennedy (T.D.).

R. v. Joyce (R.C.) and Kennedy (T.D.) (1996), 95 O.A.C. 321; 3 C.R.(5th) 170 (C.A.), refd to. [paras. 20, 70].

R. v. Taylor, [1984] B.C.J. No. 176 (S.C.), refd to. [para. 21].

R. v. Delaa, [2006] A.J. No. 948 (Q.B.), refd to. [para. 22].

R. v. Tam (R.K.N.), [1993] B.C.T.C. Uned. 398 (S.C.), refd to. [para. 23].

R. v. Allard, 2006 QCCQ 3080, refd to. [para. 24].

R. v. Andrews, [2005] J.Q. 8595 (C.Q.), dist. [para. 25].

R. v. Dunbar and Logan (1982), 138 D.L.R.(3d) 221; 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 32].

Rumping v. Director of Public Prosecutions, [1962] 3 All E.R. 256 (H.L.), refd to. [para. 32].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 37].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 2000 BCCA 239, refd to. [para. 48].

R. v. Pettit (M.J.) et al. (2003), 187 B.C.A.C. 246; 307 W.A.C. 246; 2003 BCCA 522, refd to. [para. 51].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207, refd to. [para. 59].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 69].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 76].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 76].

R. v. Colet, [1981] 1 S.C.R. 2; 35 N.R. 227; 51 C.C.C.(2d) 105, refd to. [para. 77].

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; 104 C.C.C.(3d) 23, refd to. [para. 78].

R. v. Pugliese (1992), 52 O.A.C. 280; 71 C.C.C.(3d) 295 (C.A.), refd to. [para. 80, footnote 1].

R. v. Fry (R.L.) (1999), 183 Nfld. & P.E.I.R. 346; 556 A.P.R. 346; 142 C.C.C.(3d) 166 (Nfld. C.A.), refd to. [para. 86].

California v. Greenwood (1988), 486 U.S. 35; 100 L.Ed.2d 30 (U.S.S.C.), refd to. [para. 94].

R. v. Andrews, [2005] J.Q. No. 8595 (C.Q.), refd to. [para. 103].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1, refd to. [para. 107].

R. v. Bohn (2000), 33 C.R.(5th) 265; 2000 BCCA 239, refd to. [para. 118].

Counsel:

J. Antonio, for the respondent;

J.L. Ruttan, for the appellant.

This appeal was heard on March 13, 2007, by Conrad, Ritter and Watson, JJ.A., of the Alberta Court of Appeal. The following judgment of the Court of Appeal was delivered on October 18, 2007, and included the following opinions:

Ritter, J.A. (Watson, J.A., concurring) - see paragraphs 1 to 54;

Conrad, J.A., dissenting - see paragraphs 55 to 122.