R. v. Sesay (L.A.), 2013 MBCA 8

• Judge: Steel, Chartier and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 11, 2012
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 8;(2013), 288 Man.R.(2d) 201 (CA)

R. v. Sesay (L.A.) (2013), 288 Man.R.(2d) 201 (CA);

      564 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. FE.019

Her Majesty The Queen (respondent) v. Lamont Sesay (accused/appellant)

(AR 11-30-07524; 2013 MBCA 8)

Indexed As: R. v. Sesay (L.A.)

Manitoba Court of Appeal

Steel, Chartier and Monnin, JJ.A.

January 28, 2013.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act (CDSA), s. 5(2)) and possession of proceeds of crime not over $5,000 (CDSA, s. 5(1) and Criminal Code, s. 354) arising from a traffic stop. The accused asserted that his ss. 8 and 9 Charter rights were breached. He submitted that any evidence seized should be excluded under s. 24(2).

The Manitoba Court of Queen's Bench, in a decision reported at 264 Man.R.(2d) 1, held that there was no Charter breach. The accused was convicted and sentenced to 3.5 years' imprisonment. He appealed his conviction and sentence.

The Manitoba Court of Appeal dismissed the appeals.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Constable Lintick stopped the accused's vehicle after it failed to stop at an intersection - A computer check revealed that there were several cautions with respect to the accused - Lintick called for backup - Constables Lintick and Macki then approached the vehicle and asked the passenger to identify himself - The passenger was under conditions of an undertaking - Lintick arrested the passenger for failing to comply with the conditions of his undertaking because he was unable to produce his copy of the undertaking - The passenger was handcuffed and searched - He was cooperative - The constables decided to search the vehicle - They demanded that the accused get off the phone - The accused became argumentative - He locked the vehicle with the key fob, preventing Lintick from searching the vehicle - Lintick reached inside the open window to unlock the car, which set the alarm off - The accused eventually gave Lintick the key fob which silenced the alarm - A search was conducted - Cocaine and money were discovered - The accused was charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime not over $5,000 - The accused asserted that his s. 8 Charter rights were breached - The Manitoba Court of Appeal held that there was no Charter breach - The court was satisfied both subjectively and objectively that Lintick had reasonable grounds to detain and arrest the accused when he did - The fact that Lintick was operating under the premise that he had been warned that the accused was a gang member, armed and dangerous and known for violent and aggressive behaviour, were all factors which would support, in an objective fashion, a decision to embark on a further search of the vehicle to look for prohibited weapons and ensure his security as well as that of the other officers - Further, Lintick reasonably believed that he had the authority under the undertaking to conduct a search - See paragraphs 23 to 36.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - When he went through a stop sign, the accused was stopped by police - A search of his vehicle led to the seizure of 24 pieces of crack cocaine packaged in a manner consistent with street sales of half a gram, $320 in cash and cell phones - The accused was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime not over $5,000 - The sentencing judge considered that the accused had one prior drug-related conviction dating back to 2003 and a third conviction dated after the one being dealt with here - He was sentenced to 3.5 years' imprisonment in addition to a sentence he was already serving - The Manitoba Court of Appeal affirmed the sentence - The sentencing judge was aware of the fact that she was sentencing for an offence which had occurred prior in time, but properly considered it in assessing the overall appropriateness of the sentence she would impose - She carefully reviewed the steps taken by the accused to improve his situation and the changes in his lifestyle, but concluded that, given the aggravating factors, a further sentence of 3.5 was required - She committed no error in principle and the sentence was not unfit - See paragraphs 41 to 45.

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or goods obtained by crime - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 19].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 19].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 19].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 20].

R. v. Murphy (M.P.) (2011), 270 Man.R.(2d) 214; 524 W.A.C. 214; 2011 MBCA 84, refd to. [para. 20].

R. v. C.J. (1997), 115 Man.R.(2d) 72; 139 W.A.C. 72 (C.A.), refd to. [para. 22].

R. v. L.G. (2007), 229 O.A.C. 89; 2007 ONCA 654, refd to. [para. 22].

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. 23].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 23].

R. v. Majedi (M.F.) (2009), 272 B.C.A.C. 220; 459 W.A.C. 220; 2009 BCCA 276, refd to. [para. 23].

R. v. Tran (A.L.), [2003] A.R. Uned. 810; 2003 ABPC 132, refd to. [para. 26].

R. v. Duong (T.B.) (2007), 240 B.C.A.C. 104; 398 W.A.C. 104; 2007 BCCA 227, refd to. [para. 27].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 34].

R. v. Amofa (R.) (2011), 282 O.A.C. 114; 2011 ONCA 368, refd to. [para. 34].

R. v. Demchuk (R.M.) (2003), 180 Man.R.(2d) 130; 310 W.A.C. 130; 2003 CarswellMan 508 (C.A.), refd to. [para. 37].

Counsel:

S.A. Inness, for the appellant;

J.S. Kliewer and O.A. Siddiqui, for the respondent.

These appeals were heard on April 11, 2012, by Steel, Chartier and Monnin, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Monnin, J.A., on January 28, 2013.