R. v. Pilkington (C.), (2016) 330 Man.R.(2d) 251 (CA)

• Judge: Beard, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 13, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 330 Man.R.(2d) 251 (CA);2016 MBCA 80

R. v. Pilkington (C.) (2016), 330 Man.R.(2d) 251 (CA);

      675 W.A.C. 251

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AU.018

Her Majesty The Queen (respondent) v. Colleen Pilkington (accused/appellant)

(AR 15-30-08318; 2016 MBCA 80)

Indexed As: R. v. Pilkington (C.)

Manitoba Court of Appeal

Beard, Monnin and Cameron, JJ.A.

August 11, 2016.

Summary:

The accused was convicted of 10 counts of possession of a controlled substance for the purpose of trafficking and one count of possession of proceeds of crime. She was sentenced to a total of 30 months' imprisonment and the victim fine surcharge was set at $1,100 (see 313 Man.R.(2d) 51). The evidence forming the basis for the charges was seized as a result of the execution of a search warrant at the accused's residence and a search incident to her arrest. The accused appealed her convictions. She argued that the trial judge erred in dismissing her motion to cross-examine the affiant who swore the Information to Obtain a Search Warrant. She also argued that the trial judge improperly applied the analysis in R. v. W. (D.) (S.C.C.), in that, after having rejected her testimony regarding her lack of knowledge of most of the controlled substances, the trial judge did not consider whether the Crown had proved that she possessed them for the purpose of trafficking. The accused also applied for leave to appeal one aspect of her sentence, being the imposition of the victim fine surcharge in the amount of $1,100.

The Manitoba Court of Appeal dismissed the conviction appeal and the application for leave to appeal sentence.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The accused appealed her conviction on 10 counts of possession of a controlled substance for the purpose of trafficking and one count of possession of proceeds of crime - The evidence forming the basis for the charges was seized as a result of the execution of a search warrant at her residence and a search incident to her arrest - The accused argued that the trial judge erred in refusing to allow cross-examination of the affiant who swore the Information to Obtain a Search Warrant (the ITO) regarding the lack of corroboration of the information provided by two confidential informants - The accused also asked that she be allowed to cross-examine the affiant regarding the failure of the affiant to state the informants' motivation for providing the information - The Manitoba Court of Appeal saw no error in the trial judge's decision to not allow cross-examination of the affiant - Detailed, firsthand information of criminal activity, such as that provided by Informant A, could be compelling - Additionally, Informant A was proven to be reliable, as opposed to an anonymous or untried informant - The court disagreed with the accused's contention that, because the only information that was independently sourced by the affiant was available to any member of the public, it was not sufficient to corroborate Informant A's information - Regarding the motivation of the informants, the affiant swore in the ITO that Informant A did not receive a financial reward and did not receive or expect judicial consideration - Absent evidence that raised a concern about the motives or reliability of the informant, the court saw no reason to further delve into the motives of this informant - While no information was given regarding Informant B's motivation, the information provided by that informant was merely confirmatory in nature and not the substantive basis for the issuance of the search warrant - See paragraphs 16 to 30.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The accused appealed her convictions for 10 counts of possession of a controlled substance for the purpose of trafficking and one count of possession of proceeds of crime - The accused argued that the trial judge improperly applied the analysis in R. v. W. (D.) (S.C.C.), in that, after having rejected her testimony regarding her lack of knowledge of most of the controlled substances, the trial judge did not consider whether the Crown had proved that she possessed them for the purpose of trafficking - The accused argued that, after having rejected the accused's evidence and having found that it did not leave her with a reasonable doubt, the trial judge did not consider "whether she was convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which she did accept" - The accused submitted that, even if the Crown proved that the accused possessed the controlled substances, it did not prove beyond a reasonable doubt that she possessed them for the purpose of trafficking - She stated that the trial judge did not make any credibility findings that would suggest that she did not believe the testimony of the accused's two friends - The accused maintained that the evidence of those two witnesses undermined the evidence of the expert witness, who testified that the use of prescription pill vials without labels was one way that drug dealers package them for sale - The Manitoba Court of Appeal dismissed the appeal - See paragraphs 31 to 47.

Counsel:

Z. Jones, for the appellant;

J.A. Hyman, for the respondent.

This appeal was heard on June 13, 2016, before Beard, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Cameron, J.A., on August 11, 2016.