R. v. Paulin (R.), 2013 NBCA 15

• Judge: Richard, Bell and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 14, 2013
• Jurisdiction: New Brunswick
• Citations: 2013 NBCA 15;(2013), 401 N.B.R.(2d) 163 (CA)

R. v. Paulin (R.) (2013), 401 N.B.R.(2d) 163 (CA);

    401 R.N.-B.(2e) 163; 1041 A.P.R. 163

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. FE.039

Renvoi temp.: [2013] N.B.R.(2d) TBEd. FE.039

Her Majesty The Queen (appellant) v. Roger Paulin (respondent)

(164-11-CA; 2013 NBCA 15)

Indexed As: R. v. Paulin (R.)

Répertorié: R. v. Paulin (R.)

New Brunswick Court of Appeal

Richard, Bell and Quigg, JJ.A.

February 14, 2013.

Summary:

Résumé:

The accused was charged with possession of marijuana for the purpose of trafficking. The trial judge held that the accused's rights under s. 10(a) and (b) of the Charter were infringed. A statement made by the accused was excluded from evidence under s. 24(2) and the accused was acquitted. The Crown appealed.

The New Brunswick Court of Appeal allowed the appeal and ordered a new trial. The accused's Charter rights were not infringed.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - Police executed a search warrant for drugs at the accused's residence - Both marijuana and 300 bottles of beer were found - The accused was arrested for possession of marijuana for the purpose of trafficking and properly advised of his Charter rights - He chose not to exercise his right to counsel at that time, but was advised that if he changed his mind, he was to so inform the officers and he would be given an opportunity to call a lawyer - At the police station, after being re-advised of his Charter rights, the accused was questioned about the marijuana, and then questioned about the alcohol - The accused gave a statement to the police - The accused was charged with possession of marijuana for the purpose of trafficking and ticketed for an offence under the Liquor Control Act (charge withdrawn at trial) - The accused argued that since he waived his right to counsel without knowledge that he was also being investigated for a liquor offence, he did not know the jeopardy he faced and should have been re-advised of this additional reason for his arrest (s. 10(a)) and his right to counsel (s. 10(b)) - The trial judge agreed, finding that when the accused was advised of his Charter rights, the full reason for his arrest was not disclosed to him - That infringed the accused's Charter rights - The trial judge excluded the accused's statement to police and acquitted him of possession of marijuana for the purpose of trafficking - The New Brunswick Court of Appeal allowed the Crown's appeal and ordered a new trial - A change in "jeopardy" would give rise to an obligation to re-advise an accused of his Charter rights if the investigation took "a new and more serious turn" - Here it did not - The provincial liquor charge was a far less serious charge - There was no duty to re-advise the accused of his right to counsel - It was unlikely that a person charged with a serious drug offence would waive his right to counsel for that offence, but not waive that right had he known he would also be charged with an alcohol-related offence under a provincial statute.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4608 ].

Droits et libertés - Cote 3142

Procès - Application régulière de la loi, justice fondamentale et audiences équitables - Affaires criminelles et quasi-criminelles - Arrestation ou détention - Droit d'être informé des motifs (Charte, art. 10(a)) - [Voir Civil Rights - Topic 3142 ].

Droits et libertés - Cote 4608

Droit à l'assistance d'un avocat - Généralités - Droit d'être informé de ce droit - [Voir Civil Rights - Topic 4608 ].

Droits et libertés - Cote 4612

Droit à l'assistance d'un avocat - Généralités - Renonciation ou abandon du droit - [Voir Civil Rights - Topic 4612 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 2].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 2].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, refd to. [para. 2].

R. v. Tran (L.V.) (2010), 482 A.R. 357; 490 W.A.C. 357; 2010 ABCA 211, refd to. [para. 2].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 2].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 3].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 15].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 16].

R. v. Meunier, [1997] J.Q. No. 3477 (C.A.), refd to. [para. 18].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 18].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 21].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36, refd to. [para. 22].

Counsel:

Avocats:

Monica McQueen and Christian Girouard, for the appellant;

Martine Lanteigne, for the respondent.

This appeal was heard on September 26, 2012, before Richard, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal.

On February 14, 2013, Bell, J.A., delivered the following judgment in both official languages for the Court of Appeal.