R. v. Pilkington (C.) (No. 2), 2013 MBQB 86

• Judge: Mainella, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 17, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 86;(2013), 290 Man.R.(2d) 123 (QB)

R. v. Pilkington (C.) (2013), 290 Man.R.(2d) 123 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. AP.033

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

(CR 11-01-31603; 2013 MBQB 86)

Indexed As: R. v. Pilkington (C.) (No. 2)

Manitoba Court of Queen's Bench

Winnipeg Centre

Mainella, J.

April 17, 2013.

Summary:

Police executed a search warrant at the accused's residence. They believed that the accused and another person were trafficking pills containing oxycodone or morphine out of the residence. The search led to the seizure of hundreds of morphine pills and purported drug debt lists. The accused moved for a finding that issuance of the warrant had been an unreasonable search.

The Manitoba Court of Queen's Bench, in a decision reported at 290 Man.R.(2d) 109, dismissed the motion. The accused alleged that the manner in which the search had been carried out had been unreasonable and contrary to s. 8 of the Charter. She applied to have the seizures excluded pursuant to s. 24(2).

The Manitoba Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See all Criminal Law - Topic 3054 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See all Criminal Law - Topic 3054 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant using a "no knock entry" - The search led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter because, inter alia, the police did not announce their presence or the fact that they were executing a search warrant - She claimed that an officer had charged into the house asking "Where's the gun? Where's the gun?" - She claimed that nobody announced "Winnipeg Police, Search Warrant" - She applied for exclusion of the evidence pursuant to s. 24(2) - The Manitoba Court of Queen's Bench dismissed the application - The accused was not credible - Her version of the police entry to the residence was nonsensical - All of the police officers who testified said they had no reason to believe that there were firearms in the residence, so there was no reason for the topic of firearms to be raised - It was police policy to announce "Winnipeg Police, Search Warrant" during the execution of search warrants - Two officers testified that they remembered making the announcement loudly and heard others make the announcement both before and after their entry to the residence - The court did not accept that specially trained officers would act carelessly with their and their colleagues' personal safety - See paragraphs 40 to 63.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant using a "no knock entry" - The search led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter because, inter alia, the police did not have the search warrant with them during its execution and did not produce it - She applied for exclusion of the evidence pursuant to s. 24(2) - The Manitoba Court of Queen's Bench dismissed the application - Police were required to have the warrant with them, but they were under no duty to produce it unless a clear request was made (Criminal Code, s. 29) - Two officers had the search warrant with them - The warrant was voluntarily produced to the accused before she was taken to the police station, and a copy was left at the residence - The police were in full compliance with the law - See paragraphs 64 to 67.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant using a "no knock entry" - The search led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter because, inter alia, the police did not have reasonable grounds to depart from compliance with the knock and announce rule - She applied for exclusion of the evidence pursuant to s. 24(2) - The Manitoba Court of Queen's Bench dismissed the application - The police did not have a blanket policy on no knock entries for search warrants - It was a case-by-case process with an accountable decision-maker and an independent assessment of the tactical plan - There was also operational flexibility - This investigation related to a streel level retail operation that involved small pills that were readily soluble - Police had reasonable grounds to believe that the evidence could be destroyed if there was any delay - They knew of no special risk in the residence such as the presence of children that might have altered their decision - Their departure from the knock and announce rule was warranted - See paragraphs 68 to 88.

Criminal Law - Topic 5406

Evidence and witnesses - Witnesses - Credibility - Physical and mental condition - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant that led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter - The accused had been under the influence of morphine when the search warrant was executed and also when she testified at her trial - The Manitoba Court of Queen's Bench held that, on its own, the accused's morphine use had little impact on her credibility - While morphine was a powerful painkiller, the accused had some tolerance for it given the fact that she had taken it for many years - See paragraphs 43 to 46.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Evidence - Topic 4705 ].

Criminal Law - Topic 5419

Evidence and witnesses - Witnesses - Criminal record - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant that led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter - The accused had a criminal record with 25 convictions from 1976 to 2000 - Many were for crimes of dishonesty - The Manitoba Court of Queen's Bench stated that "Although the record is dated, it is relevant to assessing her credibility, however, only to a limited degree in my view." - See paragraph 42.

Evidence - Topic 4705

Witnesses - Examination - Cross-examination - Effect of failure to cross-examine - Police believed that the accused was trafficking pills containing oxycodone or morphine out of a residence - They executed a search warrant that led to the seizure of hundreds of morphine pills and purported drug debt lists - The accused alleged that the search had been carried out in an unreasonable manner and was contrary to s. 8 of the Charter - She claimed that an officer had taken $415 out of her purse in the kitchen - She asked another officer (Ring) for money to get home after she was released from custody - She claimed that Ring had agreed to take $20 from the $415 for a taxi - According to Ring's evidence, no such conversation took place - The exhibit officer (Letkeman) testified that the only money seized in the kitchen ($395) had been in plain view on the kitchen table and was rubber banded to the drug debt lists - Letkeman and Ring were not cross-examined on the accused's version of events - The Manitoba Court of Queen's Bench held that this failure to cross-examine did not affect the accused's credibility to a great deal by itself - The true value of these contradictions was that they demonstrated a lack of reliability in the accused's version of events generally, and therefore affected her credibility in the way that any consistency would for any witness - Ring and Letkeman were credible witnesses who had documented the events appropriately - The court accepted their version of events over the accused's - See paragraphs 47 to 55.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See all Criminal Law - Topic 3054 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See third Criminal Law - Topic 3054 ].

Cases Noticed:

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

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 459 W.A.C. 1; 2010 SCC 31, refd to. [para. 4].

R. v. Brown (1978), 38 C.C.C.(2d) 339 (Ont. C.A.), refd to. [para. 42].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 45].

Browne v. Dunn (1893), 6 R. 67, refd to. [para. 47].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287; 150 C.C.C.(3d) 162 (C.A.), leave to appeal refused (2001), 276 N.R. 395 (S.C.C.), refd to. [para. 50].

R. v. Manseau, [2010] Q.J. No. 13933; 2010 QCCA 2347, refd to. [para. 65].

R. v. Perry (R.J.) (2009), 341 N.B.R.(2d) 325; 876 A.P.R. 325; 243 C.C.C.(3d) 55; 2009 NBCA 12, refd to. [para. 69].

R. v. Thompson (J.) et al., [2010] O.T.C. Uned. 2862; 255 C.C.C.(3d) 236; 2010 ONSC 2862, refd to. [para. 69].

R. v. Lau (C.F.) (2003), 186 B.C.A.C. 3; 306 W.A.C. 3; 175 C.C.C.(3d) 273; 2003 BCCA 337, refd to. [para. 71].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166; 175 C.C.C.(3d) 193; 2003 BCCA 364, refd to. [para. 71].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 73].

R. v. DeWolfe (C.L.) (2007), 256 N.S.R.(2d) 221; 818 A.P.R. 221; 222 C.C.C.(3d) 491; 2007 NSCA 79, refd to. [para. 73].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 571, refd to. [para. 74].

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. 82].

R. v. Newell (J.), [2007] O.T.C. Uned. C91 (Sup. Ct.), refd to. [para. 84].

R. v. Grenier (D.); R. v. Grenier (M.-P.) (1991), 51 Q.A.C. 283; 65 C.C.C.(3d) 76 (C.A.), refd to. [para. 87].

Counsel:

Omar A. Siddiqui, for the Crown;

Mark Wasyliw, for the accused/applicant.

This application was heard before Mainella, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 17, 2013.