R. v. Penney (R.), (2007) 281 Nfld. & P.E.I.R. 127 (NLPC)

• Judge: Kennedy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 29, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2007), 281 Nfld. & P.E.I.R. 127 (NLPC)

R. v. Penney (R.) (2007), 281 Nfld. & P.E.I.R. 127 (NLPC);

    863 A.P.R. 127

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. NO.026

Her Majesty the Queen v. Roger Penney

(No. 0603A00274)

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

Newfoundland and Labrador Provincial Court

District of Clarenville

Kennedy, P.C.J.

January 29, 2007.

Summary:

The accused was charged with possession of marijuana for the purpose of trafficking. He sought to exclude evidence. He challenged a search warrant and alleged a violation of his ss. 8, 9 and 10(b) Charter rights.

The Newfoundland and Labrador Provincial Court dismissed the application.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police executed a search warrant under the Controlled Drugs and Substances Act (CDSA) - The accused was charged with possession of marijuana for the purpose of trafficking - He argued that the police violated his s. 8 Charter rights in the manner in which they entered his home without knocking, announcing their presence and intentions, and then allowing a reasonable time for him to respond - The police knew that the accused had no record of violence or violent behaviour - He was not likely to escape because he was in a wheelchair - They believed he was a hunter and a gun might be present - They could see him through the window prior to and during the entry - The Newfoundland and Labrador Provincial Court held that the common law "knock and announce" rule was still applicable in CDSA searches - However, each case had to be determined by its own unique circumstances - The first officer inside either knocked as he entered or entered immediately after he knocked on the open back door of the accused's residence - Insufficient time was allowed for the accused to go to the back door and let the police enter and/or prepare for their entry - This was not a case of exigent circumstances, risk, or urgency - The court concluded that the police breached the "knock and announce" rule and thereby breached the accused's s. 8 Charter rights - However, the court declined to exclude the non-conscriptive evidence (marijuana) - Its admission would not render the trial unfair - The breach was not serious, deliberate, wilful or flagrant - Exclusion of the evidence would cause greater disrepute to the administration of justice than inclusion - See paragraphs 35 to 54 and 62 to 73.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police executed a search warrant at the accused's residence - He was arrested for possession of marijuana for the purpose of trafficking before conducting the search - He was read his rights and informed of his right to counsel - He indicated that he wanted to talk to a lawyer - There were three telephones in the home: one on the coffee table in the living room near where the accused was arrested, one in the spare bedroom and one on the kitchen wall - There were also cell phones in the police vehicles - The police did not permit the accused to use these phones - The accused talked with a lawyer at the police detachment on a secure telephone line and in private within 15 minutes of reaching the detachment - The Newfoundland and Labrador Provincial Court rejected the accused's argument that his s. 10(b) Charter rights were violated - The police gave several reasons for not allowing the accused to contact counsel at the accused's residence: security, preservation of evidence, and privacy - The police had not completed their search by the time the accused left his house for the detachment - It was not reasonable or practical under the circumstances of this case to cause the police to stop the search and secure a room or a place for the accused to contact his counsel in private - See paragraphs 58 to 61.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

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

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - An accused was charged with possession of marijuana for the purpose of trafficking - He challenged a search warrant - A reliable confidential source on three occasions advised police that he had first hand personal knowledge that the accused hid drugs in his house - This source had provided information in the past that was accurate and led to drug charges - The Information to Obtain did not state whether any convictions resulted from the seizures, whether the accused was paid for the information, or whether he or she had a criminal record other than mischief - A second source provided personal knowledge information that the accused was selling a lot of marijuana at his residence - The Information indicated that the source had no record of public mischief - The location of the accused's residence was noted by both sources and confirmed by personal surveillance - While conducting surveillance, at 11:30 p.m., police saw a person enter and immediately leave the accused's residence, enter a vehicle and leave the scene - They stopped the vehicle and a passenger admitted to having just purchased three grams of marijuana for $50 (but would not say from whom) - The Newfoundland and Labrador Provincial Court held that, based on the Information to Obtain that was before her, the issuing justice had sufficient grounds from which to have issued the search warrant to search the accused's residence pursuant to the authority granted by s. 11 of the Controlled Drugs and Substances Act - See paragraphs 20 to 24.

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - An accused was charged with possession of marijuana for the purpose of trafficking - He challenged a search warrant - A police officer testified that he intended the warrant to be a s. 11 Controlled Drugs and Substances Act (CDSA) warrant and that references in the warrant to ss. 488 and 489.1 of the Criminal Code were included by him as a precaution because he thought it was necessary in order to ensure compliance with the requirements of a night search - The Newfoundland and Labrador Provincial Court held that the inclusion of the s. 488 requirement by the issuing justice in this case did not, under these circumstances, create an improper mixing of two statutes - It was an attempt to comply with the law as it existed in Newfoundland and Labrador at that time - The issuing justice did not fail to follow the statutory requirements of the CDSA - By the issuing justice making reference to s. 488 and s. 489 in the context of the case, she was not, on the face of the warrant, doing anything illegal or improper and was not acting contrary to the provisions of the CDSA - See paragraphs 26 to 32.

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - An accused was charged with possession of marijuana for the purpose of trafficking - He challenged a search warrant executed at night - He argued that the Information to Obtain failed to meet the requirement of exceptional circumstances to justify a night search within the meaning of s. 488 of the Criminal Code and s. 11 of the Controlled Drugs and Substances Act - The police alleged that the accused sold marijuana at all hours of the day and that an immediate search was necessary to preserve evidence and stop the continuation of the offence - They were holding several people in custody, whom they believed had just purchased marijuana from the accused, pending execution of the warrant - The Newfoundland and Labrador Provincial Court held that there was, in the totality of the circumstances, sufficient information before the justice for her to draw an inference that the requirement for a night search was reasonable (incl., the accused sold marijuana at all hours of the night, and preservation) - See paragraphs 35 and 36.

Police - Topic 2202

Duties - General duties - Duty of police to identify themselves - [See Civil Rights - Topic 1646 ].

Police - Topic 2204

Duties - General duties - Common law duties - [See Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - An accused was charged with possession of marijuana for the purpose of trafficking - The police discovered marijuana after executing a search warrant - The accused argued that his arrest by police immediately upon entering the house, before any evidence of trafficking was discovered, was an unlawful arrest - The Newfoundland and Labrador Provincial Court rejected the argument - A reasonable confidential source had on three occasions within the past month informed police that the accused was selling marijuana from his house and identified the quantities of marijuana involved and where it was stored - Another confidential source confirmed that the accused was selling marijuana from his home - The location of the house was confirmed by the police - In conducting surveillance, they saw a person enter the accused's residence at 11:50 at night and exit six minutes later and drive away in a car - Within a few minutes, that car was stopped and a person in the car admitted having just purchased marijuana (although he did not say from whom) - All these factors taken together were sufficient in the cumulative effect to constitute reasonable and probable grounds for the police to arrest the accused - There was no evidence in this case of any bias or animosity by the police towards the accused or that the arrest was made purely for investigative purposes - The police believed on reasonable grounds that the accused had committed an offence and he was arrested for that offence and subsequently charged with the same offence - An arrest which was lawfully made does not become unlawful simply because the police intended to continue to investigate after the arrest - See paragraphs 55 to 57.

Cases Noticed:

R. v. Saunders, [2002] N.J. No. 159 (Nfld. Prov. Ct.), refd to. [para. 8].

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. 20].

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. 21].

R. v. Veinot (K.A.) (1995), 144 N.S.R.(2d) 388; 416 A.P.R. 388 (C.A.), refd to. [para. 21].

Times Square Book Store, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503 (C.A.), refd to. [para. 21].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 21].

R. v. Monroe (D.T.) (1997), 90 B.C.A.C. 256; 147 W.A.C. 256; 8 C.R.(5th) 324 (C.A.), refd to. [para. 21].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 21].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 181 C.C.C.(3d) 268 (N.L.C.A.), refd to. [para. 21].

R. v. Therrien, [2004] B.C.J. No. 2904 (S.C.), refd to. [para. 21].

R. v. Dostaler (R.D.) (2003), 375 A.R. 145 (Q.B.), refd to. [para. 21].

R. v. Sanchez (1994), 93 C.C.C.(3d) 357 (Ont. Gen. Div.), refd to. [para. 21].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20; 78 C.C.C.(3d) 1 (C.A.), refd to. [para. 21].

R. v. Ellard, [2004] B.C.J. No. 2915 (S.C.), refd to. [para. 22].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 24].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166 (C.A.), refd to. [para. 28].

R. v. Martens (E.M.), [2004] B.C.T.C. 1450 (S.C.), refd to. [para. 32].

R. v. Pugliese (1992), 52 O.A.C. 280 (C.A.), refd to. [para. 32].

R. v. Morneau, [2000] Nu.J. No. 5 (C.J.), refd to. [para. 32].

R. v. Roche (H.) (1995), 128 Nfld. & P.E.I.R. 346; 400 A.P.R. 346 (Nfld. T.D.), refd to. [para. 32].

R. v. McGrath (G.P.) (1993), 107 Nfld. & P.E.I.R. 334; 336 A.P.R. 334 (Nfld. T.D.), affd. (1994), 118 Nfld. & P.E.I.R. 325; 369 A.P.R. 325 (Nfld. C.A.), refd to. [para. 32].

R. v. Sutherland (M.) (2000), 139 O.A.C. 53; 150 C.C.C.(3d) 231 (C.A.), refd to. [para. 36].

R. v. Anderson (D.W.), [2001] B.C.T.C. 674; 2001 CarswellBC 3312; 2001 BCSC 674, refd to. [para. 36].

R. v. Kubusch (H.P.) (2003), 343 A.R. 321 (Prov. Ct.), refd to. [para. 36].

R. v. Thomas (H.R.) (1991), 91 Nfld. & P.E.I.R. 341; 286 A.P.R. 341 (Nfld. C.A.), refd to. [para. 38].

Semayne's Case (1604), 77 E.R. 194 (K.B.), refd to. [para. 39].

Entick v. Carrington (1765), 95 E.R. 807 (K.B.), refd to. [para. 39].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 39].

Foley v. Shannahan et al. (1990), 82 Nfld. & P.E.I.R. 271; 257 A.P.R. 271 (Nfld. T.D.), refd to. [para. 39].

R. v. Mac (M.K.) et al., [2005] O.T.C. 174 (Sup. Ct.), refd to. [para. 42].

R. v. Vukelic, [2005] B.C.J. No. 1017 (Prov. Ct.), refd to. [para. 42].

R. v. Li (Z.Z.) et al., [2005] O.T.C. 62 (Sup. Ct.), refd to. [para. 42].

R. v. Gimson (1990), 37 O.A.C. 243; 54 C.C.C.(3d) 232 (C.A.), affd. [1991] 3 S.C.R. 692; 152 N.R. 161; 62 O.A.C. 282, refd to. [para. 42].

R. v. McAllister (B.J.), [2000] B.C.T.C. 318; 75 C.R.R.(2d) 141 (S.C.), refd to. [para. 42].

R. v. K.C.F. (2004), 235 N.S.R.(2d) 3; 747 A.P.R. 3 (Youth Ct.), refd to. [para. 44].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 45].

R. v. Lau (C.F.) (2003), 186 B.C.A.C. 3; 306 W.A.C. 3; 175 C.C.C.(3d) 273 (C.A.), refd to. [para. 45].

R. v. Mai (L.Q.) et al., [2005] B.C.T.C. 29 (S.C.), refd to. [para. 49].

R. v. Brown, [2003] B.C.J. No. 1654 (Prov. Ct.), refd to. [para. 49].

R. v. Ngo (T.M.), [2004] B.C.T.C. 1414 (S.C.), refd to. [para. 49].

R. v. Storrey (1990), 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316 (S.C.C.), refd to. [para. 56].

ChartieR. v. Quebec (Attorney General) (1979), 27 N.R. 1; 9 C.R.(3d) 97 (S.C.C.), refd to. [para. 56].

R. v. J.F.N. (1993), 36 B.C.A.C. 253; 58 W.A.C. 253 (C.A.), refd to. [para. 56].

R. v. Warford (R.G.) (2001), 207 Nfld. & P.E.I.R. 263; 620 A.P.R. 263; 161 C.C.C.(3d) 309 (N.L.C.A.), refd to. [para. 56].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), refd to. [para. 56].

R. v. Kirby, [2001] M.J. No. 593 (Prov. Ct.), refd to. [para. 56].

R. v. Thompson, [1990] O.J. No. 1501 (C.J. Prov. Div.), dist. [para. 57].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263 (C.A.), refd to. [para. 59].

R. v. Mach, [2003] B.C.J. No. 776 (Prov. Ct.), refd to. [para. 59].

R. v. Maxwell (R.W.), [2004] B.C.T.C. 1200 (S.C.), refd to. [para. 59].

R. v. Manninen (1987), 76 N.R. 198; 21 O.A.C. 192; 58 C.R.(3d) 97 (S.C.C.), refd to. [para. 59].

R. v. Dombrowski (1985), 37 Sask.R. 259; 44 C.R.(3d) 1 (C.A.), refd to. [para. 59].

R. v. Sheppard (1987), 64 Nfld. & P.E.I.R. 94; 197 A.P.R. 94; 48 M.V.R. 6 (Nfld. T.D.), refd to. [para. 60].

R. v. Hamilton (1985), 30 M.V.R. 69 (N.B. Co. Ct.), refd to. [para. 60].

R. v. Gyori (D.L.) (1993), 145 A.R. 183; 55 W.A.C. 183 (C.A.), refd to. [para. 61].

R. v. Barnes (R.) (1989), 76 Nfld. & P.E.I.R. 105; 235 A.P.R. 105 (Nfld. T.D.), refd to. [para. 61].

R. v. Kelly (1985), 7 O.A.C. 46; 17 C.C.C.(3d) 419 (C.A.), refd to. [para. 61].

R. v. Rackow (1986), 73 A.R. 183 (C.A.), refd to. [para. 61].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 32 M.V.R. 153, refd to. [para. 61].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 63].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 66].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 68].

R. v. Kokesch (1990), 121 N.R. 161 (S.C.C.), refd to. [para. 71].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 72].

Authors and Works Noticed:

Brucker, Theresa M., Practical Guide to the Controlled Drug and Substances Act (2nd Ed. 1999), p. 90 [para. 31].

Counsel:

James Hughes, for the Crown;

Averill Baker, for the defence.

This application was heard by Kennedy, P.C.J., of the Newfoundland and Labrador Provincial Court, District of Clarenville, who delivered the following decision on January 29, 2007.