R. v. Sanchez-Ruiz, (1991) 121 N.B.R.(2d) 106 (CA)

• Judge: Angers, Hoyt and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 29, 1991
• Jurisdiction: New Brunswick
• Citations: (1991), 121 N.B.R.(2d) 106 (CA);1991 CanLII 2410 (NB CA);121 NBR (2d) 106;10 CR (4th) 34;68 CCC (3d) 500;[1991] NBJ No 1051 (QL);14 WCB (2d) 510;304 APR 106

R. v. Sanchez-Ruiz (1991), 121 N.B.R.(2d) 106 (CA);

    121 R.N.-B.(2e) 106; 304 A.P.R. 106

MLB headnote and full text

[French language version follows English language version]

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

....................

Tito Sanchez Ruiz, a.k.a. Roberto Ambrosio San Vicente Freitas (appellant) v. Her Majesty the Queen (respondent)

(107/90/CA)

Indexed As: R. v. Sanchez-Ruiz

New Brunswick Court of Appeal

Angers, Hoyt and Rice, JJ.A.

November 29, 1991.

Summary:

The accused was one of five South Ameri­cans charged with conspiring to break two prisoners out of the Fredericton jail. While the other members of the conspiracy pleaded guilty, the accused pleaded not guilty. The accused submitted that he was merely a translator who had been hired in Venezuela to assist one of others on a business trip to Canada.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at paragraph 58, convicted the accused. The accused was sentenced to a nine year term of imprisonment. The accused appealed the conviction.

The New Brunswick Court of Appeal, Angers, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - The New Brunswick Court of Appeal considered the application of the "plain view doctrine" in respect to warrantless searches - The court found that evidence from such a search could be admitted as an exception to the rule ex­cluding the fruits of warrantless searches provided that (1) the initial intrusion or approach was lawful, (2) the evidence was discovered inadvertently and (3) it was immediately apparent that the items were evidence of a crime, contraband, or other­wise subject to seizure - See paragraph 28.

Civil Rights - Topic 1650

Property - Search and seizure -Warrantless search and seizure - Plain view doctrine - Requirement that the initial approach be lawful - A shopkeeper became suspicious because of the conduct of the accused and his companions and informed the police - Thinking that illegal drugs were involved, the police stopped the accused's vehicle - A pair of bolt cutters and a knife or machete was observed in the accused's vehicle - The police then searched the accused's vehicle - Evidence of a conspiracy to commit a jail break was discovered - The New Brunswick Court of Appeal held that the evidence discovered in the warrantless search was not admissible under the plain view doctrine because the shopkeeper's information did not justify the initial approach by the police - See paragraphs 2 and 30.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - Requirement that the incriminating items be found inadvertently - A shopkeeper became suspicious because of the accused's conduct and informed the police - Thinking that illegal drugs were involved, the police stopped the accused's vehicle - The police observed a pair of bolt cutters and a knife or machete - The police then searched the accused's vehicle - Evidence of a conspir­acy to commit a jail break was discovered - The New Brunswick Court of Appeal held that the evidence discovered in the warrantless search was not admissible under the plain view doctrine because the incriminating items were not found inad­vertently - The officers had decided to search the vehicle before the cutters and machete were seen - See paragraphs 2 and 31.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police searched the accused's vehicle without a warrant - The police suspected that the accused was involved in the illegal drug trade - Evi­dence was discovered that suggested that the accused was part of a conspiracy to break two suspected narcotics smugglers out of the Fredericton jail - The accused used the breach of his s. 8 Charter right as the ground for an application under s. 24(2) of the Charter to have the evidence excluded on the ground that its admission would bring the administration of justice into disrepute - The New Brunswick Court of Appeal declined to exclude the evidence - See paragraphs 2 and 34 to 46.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 540

Offences against the administration of law and justice - Escapes - Prison break - The accused, a South American, was charged along with four other South Americans with conspiring to break two suspected narcotic smugglers out of the Fredericton jail - The accused submitted that he was employed by the others as a translator and thought the venture was simply a business trip - While the neces­sary equipment and weapons were assembled, no overt move was made against the jail prior to the arrest - The New Brunswick Court of Queen's Bench, Trial Division, sentenced the accused to a nine year term of imprisonment - See paragraph 105 - The conviction was affirmed by the New Brunswick Court of Appeal - See paragraph 57.

Criminal Law - Topic 2645

Conspiracies - General - Prison break - [See Criminal Law - Topic 540 ].

Criminal Law - Topic 4394

Procedure - Charge or directions to jury - Direction re inferences from failure to call evidence - The accused, a South Ameri­can, was charged with conspiring to com­mit a jail break - The accused claimed to be merely a translator for the others - At his trial, the accused requested that two of the convicted conspirators be brought from prison so that they could corroborate his story - When the convicted conspirators appeared at the courtroom, the accused declined to call them as witnesses - The accused appealed his conviction on the ground, inter alia, that the trial judge was wrong in drawing an inference of guilt from his failure to call the two convicted conspirators as witnesses - The New Brunswick Court of Appeal dismissed the appeal - See paragraphs 5 to 16 and 53 to 57.

Criminal Law - Topic 5204.4

Evidence and witnesses - General - Agreement respecting - Voir dire evidence - At the beginning of the trial, a voir dire was held and evidence relating to items discovered when vehicles belonging to the accused and the other conspirators was presented - Prior to the voir dire, the Crown counsel requested that the evidence be admitted into the trial record without requiring the witnesses to testify again - After the trial continued, the judge indi­cated that the voir dire evidence was part of the trial record - The accused did not object - Nevertheless, the accused appealed his conviction on the ground, inter alia, that the voir dire evidence was improperly admitted at trial - The New Brunswick Court of Appeal held that the evidence was properly admitted - See paragraphs 3 and 46 to 49.

Criminal Law - Topic 5857

Sentence - Conspiracy - Jail break - [See Criminal Law - Topic 540 ].

Criminal Law - Topic 5873

Sentence - Prison break - Conspiracy - [See Criminal Law - Topic 540 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Inference from failure to call available evidence - [See Criminal Law - Topic 4394 ].

Cases Noticed:

White v. R., [1947] S.C.R. 268, refd to. [para. 4].

R. v. Zehr (1980), 54 C.C.C.(2d) 65, consd. [para. 10].

R. v. Collicott (1990), 105 N.B.R.(2d) 355; 264 A.P.R. 355, refd to. [para. 11].

Noble v. Hoyt (1986), 74 N.B.R.(2d) 411; 187 A.P.R. 411, refd to. [para. 12].

R. v. Charrette (1982), 67 C.C.C.(2d) 357, refd to. [para. 13].

R. v. Koffman and Hirschler (1985), 10 O.A.C. 29; 20 C.C.C.(3d) 232, refd to. [para. 13].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18, consd. [para. 28].

R. v. Nielsen, [1988] 6 W.W.R. 1; 66 Sask.R. 293; 39 C.R.R. 147; 43 C.C.C.(3d) 548, refd to. [para. 28].

R. v. Askov (1987), 60 C.R.(3d) 261; 30 C.R.R. 45, refd to. [para. 28].

R. v. Duguay, [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177; 46 C.C.C.(3d) 1; 67 C.R.(3d) 252; 56 D.L.R.(4th) 46, refd to. [para. 34].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 56 C.R.(3d) 193; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 37].

R. v. Kokesch, [1990] 3 S.C.R. 3; [1991] 1 W.W.R. 193; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, consd. [para. 37].

R. v. Greffe, [1990] 1 S.C.R. 755; [1990] 3 W.W.R. 577; 107 N.R. 1; 107 A.R. 1; 73 Alta. L.R.(2d) 97; 55 C.C.C.(2d) 161; 75 C.R.(3d) 257, dist. [para. 39].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224, dist. [para. 39].

R. v. Rao (1984), 40 C.R.(3d) 1; 46 O.R.(2d) 80; 12 C.C.C.(3d) 97; 4 O.A.C. 162; 9 D.L.R.(4th) 542; 10 C.R.R. 275, dist. [para. 39].

R. v. Annett (1984), 43 C.R.(3d) 350, 17 C.C.C.(3d) 332; 6 O.A.C. 302; 17 C.R.R. 96, refd to. [para. 40].

R. v. Cheecham (1989), 80 Sask.R. 74; 51 C.C.C.(3d) 498, refd to. [para. 41].

R. v. Debot (1986), 30 C.C.C.(3d) 207; 17 O.A.C. 141; 54 C.R.(3d) 120, refd to. [para. 41].

R. v. Rooke (1988), 40 C.C.C.(3d) 484, dist. [para. 55].

R. v. Gallagher, [1974] 3 All E.R. 118, consd. [para. 55].

R. v. Balian and Gharakhanian (1988), 29 O.A.C. 387, refd to. [para. 105].

R. v. Ko (1979), 50 C.C.C.(2d) 430 (B.C.C.A.), refd to. [para. 105].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 24]; sect. 24(2) [para. 33].

Criminal Code, R.S.C. 1985, c. C-46, sect. 491(1) [para. 105]; sect. 527 [paras. 6, 103]; sect. 675(1)(a)(ii) [para. 4]; sect. 686(1)(b)(iii) [para. 14].

Authors and Works Noticed:

Fortin, Preuve pénale (1984), pp. 335 [para. 12]; 353-354 [para. 11].

McWilliams, Canadian Criminal Evidence (2nd Ed. 1984), pp. 70-71 [para. 12].

Counsel:

Daniel C. Watters, for the appellant;

William Corby and Graham Sleeth, for the Crown.

This appeal was heard on March 12, 1991, by Angers, Hoyt and Rice, JJ.A., of the New Brunswick Court of Appeal.

The decision of the court was given on November 29, 1991, when the following judgments were delivered.

Angers, J.A., dissenting - see paragraphs 1 to 16;

Hoyt, J.A. (Rice, J.A., concurring) - see paragraphs 16 to 57.