R. v. Robar, (1992) 113 N.S.R.(2d) 112 (ProvCt)

• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 26, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 113 N.S.R.(2d) 112 (ProvCt)

R. v. Robar (1992), 113 N.S.R.(2d) 112 (ProvCt);

    309 A.P.R. 112

MLB headnote and full text

Her Majesty the Queen v. Corey Melvin Robar

(Nos. 273537 & 273721)

Indexed As: R. v. Robar

Nova Scotia Provincial Court

County of Lunenburg

Batiot, J.P.C.

March 27, 1992.

Summary:

An accused was charged with unlawfully possessing a narcotic and with resisting arrest contrary to ss. 3(2)(b) of the Narcotic Control Act and 129(a) of the Criminal Code, respectively.

The Nova Scotia Provincial Court ordered a stay of proceedings.

Civil Rights - Topic 1234

Security of the person - Unlawful search - What constitutes - A driver was charged with resisting arrest contrary to s. 129(a) of the Criminal Code - During a spot check, a police officer realized that the driver had a reputation for possessing marihuana - After being ordered to get out, the driver leaned to the right to swing his legs out - The officer apprehended danger and pinned the driver down - The driver lost consciousness twice - The officer searched the driver - The Nova Scotia Provincial Court concluded that the officer offended the driver's Charter rights to be secure in his person and secure against unreasonable search - See para­graph 21.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of Rights - Remedies - Stay of proceedings - An accused was charged with unlawful possession of a narcotic contrary to s. 3(2)(b) of the Narcotic Con­trol Act - After concluding that the arrest­ing officer had offended the accused's Charter rights to be secure in his person and to be secure against unreasonable search, the Nova Scotia Provincial Court ordered a stay of proceedings.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer in execution of his duty - A driver was charged with resisting arrest contrary to s. 129(a) of the Criminal Code - During a spot check, and after being ordered to get out of his car, the driver leaned to the right to swing his legs out - The officer apprehended danger and pinned the driver down - The driver lost consciousness twice - The Nova Scotia Provincial Court concluded that the accused was not guilty of resisting arrest - See paragraph 20.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - During a spot check, a police officer detected the smell of tobacco smoke and a slight odour of alcohol - Based on his personal knowl­edge of the driver's reputation of pos­sessing marihuana, the officer searched the accused and his car - The Nova Scotia Provincial Court concluded that the officer did not have reasonable grounds to search the driver - See paragraphs 14 to 21.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See Police - Topic 3208 ].

Narcotic Control - Topic 2006

Search and seizure - General - Statutory authority [See Police - Topic 3208 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See first Crimi­nal Law - Topic 3152 ].

Police - Topic 3109

Powers - Investigation - Motor vehicle inspections - [See Police - Topic 3208 ].

Police - Topic 3181

Powers - Search - General - [See first Criminal Law - Topic 3152 ].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - The Nova Scotia Provincial Court stated that the "... right to spot check does not necessarily mean the right to search. At common law there is a right to search incidental to arrest. Before arrest a warrantless search must be carried out according to statutory provisions" - See paragraph 13.

Cases Noticed:

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110; 56 C.C.C.(3d) 22, refd to. [para. 12].

R. v. Wilson (1990), 108 N.R. 207; 56 C.C.C.(3d) 142 (S.C.C.), refd to. [para. 12].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, appld. [para. 15].

R. v. C.D.D. (1988), 86 N.S.R.(2d) 138; 219 A.P.R. 138 (Co. Ct.), refd to. [para. 19].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8 [para. 21]; sect. 24(1), sect. 24(2) [para. 24].

Criminal Code, R.S.C. 1985, c. C-46, sect. 129(a), sect. 129(e) [para. 1].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 3(2)(b) [para. 1]; sect. 10 [para. 14].

Counsel:

Anthony W. Brown, for the Crown;

David F. Walker, Q.C., for the defence.

This case was heard on February 26, 1992, at Bridgewater, Nova Scotia, before Batiot, J.P.C., of the Nova Scotia Provincial Court, who delivered the following judgment on March 27, 1992.