R. v. Sewell,

JurisdictionSaskatchewan
JudgeBayda, C.J.S., Tallis and Lane, JJ.A.
Neutral Citation2003 SKCA 52
CourtCourt of Appeal (Saskatchewan)
Date08 April 2003
Citation2003 SKCA 52,(2003), 232 Sask.R. 210 (CA),1932 CanLII 170 (BS SC),[2004] 6 WWR 694,175 CCC (3d) 242,[2003] CarswellSask 407,[2003] SJ No 391 (QL),232 Sask R 210,294 WAC 210,38 MVR (4th) 190,232 SaskR 210,(2003), 232 SaskR 210 (CA),[2003] S.J. No 391 (QL),294 W.A.C. 210,232 Sask.R. 210

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210 (CA);

    294 W.A.C. 210

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. JN.038

Eugene Edward Sewell (appellant) v. Her Majesty the Queen (respondent)

(No. 534; 2003 SKCA 52)

Indexed As: R. v. Sewell (E.E.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis and Lane, JJ.A.

April 8, 2003.

Summary:

The accused was charged with two offences under the Controlled Drugs and Substances Act and a third offence under the Criminal Code.

The Saskatchewan Provincial Court convicted the accused of counts 2 and 3 and conditionally stayed count 1 on the basis of the Kienapple principle, as it was the "same matter" as count 2. The court sentenced the accused. The accused appealed his conviction and sentence.

The Saskatchewan Court of Appeal allowed the conviction appeal in respect of count 2. The court held that the Provincial Court lacked jurisdiction to hear count 2 as it was an election offence, no proper election was put to the accused in accordance with s. 536(2) of the Criminal Code, and the accused had not clearly and unequivocally waived his rights under s. 536(2). However, the court then entered a conviction on count 1. The court dismissed the sentence appeal.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - A police officer stopped the accused's vehicle for speeding under the Highway Traffic Act - The officer asked the accused to enter the police vehicle for safety reasons - Once inside, the accused could not exit without the officer's assistance - Police database searches revealed that the accused was a suspect in marijuana cultivation and had a theft conviction - After the Highway Traffic matters were concluded, the accused consented to a search of his vehicle - The accused argued that his consent was not voluntary because he was arbitrarily detained in the police vehicle - The Saskatchewan Court of Appeal held that it was not necessary to determine if the accused was arbitrarily detained - The consent was voluntary where there was no intimidating conduct, force or threats of force by the officer - Further, the consent was revocable and thus had a continuing quality - The accused could withdraw it at any time, including after he exited the police vehicle - See paragraphs 1 to 28.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - [See Criminal Law - Topic 58 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - A police officer stopped the accused's vehicle under the Highway Traffic Act for speeding - Police database searches revealed that the accused was a suspect in marijuana cultivation and had a theft conviction - After the Highway Traffic matters were concluded, the accused consented to a search of his vehicle - The officer had told the accused that he could withdraw his consent at any time - The officer smelled marijuana in the back of the vehicle - When he started pulling a duffel bag towards him, he experienced a very strong smell of raw marijuana and the accused withdrew his consent - The officer arrested the accused for possession of marijuana and continued the search - The Saskatchewan Court of Appeal held that the officer had reasonable and probable grounds to continue the search and s. 8 of the Charter was not violated - See paragraphs 1 to 41.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - A police officer stopped the accused's vehicle under the Highway Traffic Act for speeding - Police database searches revealed that the accused was a suspect in marijuana cultivation and had a theft conviction - After the Highway Traffic matters were concluded, the accused consented to a search of his vehicle - The officer had told the accused that he could withdraw his consent at any time - The officer smelled marijuana in the back of the vehicle - When he started pulling a duffel bag towards him, he experienced a very strong smell of raw marijuana and the accused withdrew his consent - The officer arrested the accused for possession of marijuana - He searched the accused and the bag - The accused submitted that his right to counsel was violated - The Saskatchewan Court of Appeal rejected the submission - The officer had advised the accused of his right to counsel immediately after the Highway Traffic matters were concluded - The accused at no time asserted this right - See paragraph 38.

Criminal Law - Topic 58

General principles - Protection against self-incrimination - Unfavourable inference from accused's silence - The accused argued that his consent to a search was not voluntary - The Saskatchewan Court of Appeal held that it could consider the accused's failure to testify on the voir dire in assessing the reasonableness of the conclusion that it had otherwise reached, that the accused was not under the influence of any sort of threat, intimidation or coercion - See paragraph 29.

Criminal Law - Topic 2857

Jurisdiction - Consent jurisdiction - Elections and re-elections - Waiver of procedural requirements - The accused was charged with two offences under the Controlled Drugs and Substances Act and a third offence under the Criminal Code - The Saskatchewan Provincial Court convicted the accused of counts 2 and 3 and conditionally stayed count 1 on the basis of the Kienapple principle, as it was the "same matter" as count 2 - The Saskatchewan Court of Appeal allowed an appeal in respect of count 2 - The court held that the Provincial Court lacked jurisdiction to hear count 2 as it was an election offence, no proper election was put to the accused in accordance with s. 536(2) of the Criminal Code, and the accused had not clearly and unequivocally waived his rights under s. 536(2) - However, the court then entered a conviction on count 1 - See paragraphs 43 to 71.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - A police officer asked the accused to consent to a search of his vehicle - He told the accused that he could withdraw his consent at any time - The accused consented - The officer started pulling a duffel bag towards him - He smelled a strong odour of marijuana coming from the bag - The accused withdrew his consent - The officer arrested the accused for possession of marijuana - The Saskatchewan Court of Appeal held that at the point that the officer smelled the marijuana, he had found the accused committing an offence (possession of marijuana) - Therefore, he was entitled to arrest the accused without a warrant under s. 495(1)(b) of the Criminal Code - See paragraphs 31 to 36.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - A police officer asked the accused to consent to a search of his vehicle - He told the accused that he could withdraw his consent at any time - The accused consented - The officer smelled marijuana in the back of the vehicle - When he started pulling a duffel bag towards him, he experienced a very strong smell of raw marijuana and the accused withdrew his consent - The officer arrested the accused for possession of marijuana - The Saskatchewan Court of Appeal held that even if the officer's presence at the back of the vehicle was unlawful for lack of valid consent or breach of the accused's right to counsel, the officer did not lack authority to arrest him without a warrant under s. 495(1)(b) of the Criminal Code for an offence that he found the accused committing (possession of marijuana) - See paragraphs 31 to 36.

Criminal Law - Topic 5057

Appeals - Indictable offences - Substitution of verdict - Substitution of conviction - [See Criminal Law - Topic 2857 ].

Police - Topic 3069

Powers - Arrest and detention - Arrest without warrant - Of person committing a criminal offence - [See both Criminal Law - Topic 3212 ].

Cases Noticed:

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), appld. [para. 17].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, refd to. [para. 17].

R. v. Rosen, [1980] 1 S.C.R. 961; 30 N.R. 483, refd to. [para. 17].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 17].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 17].

R. v. Nielsen, [1988] 6 W.W.R. 1; 66 Sask.R. 293 (C.A.), refd to. [para. 17].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 19].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 24].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 146 D.L.R.(4th) 385, folld. [para. 29].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 33].

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. 33].

R. v. Ladouceur (M.J.), [2002] 9 W.W.R. 209; 223 Sask.R. 161; 277 W.A.C. 161 (C.A.), folld. [para. 39].

R. v. I.D.D., [1988] 1 W.W.R. 673; 60 Sask.R. 72 (C.A.), refd to. [para. 39].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 39].

R. v. Miller and Newman (1973), 14 C.C.C.(2d) 370 (Ont. C.A.), refd to. [para. 56].

R. v. Clunas, [1992] 1 S.C.R. 595; 134 N.R. 268; 52 O.A.C. 130, refd to. [para. 58].

R. v. Mitchell (J.) (1997), 105 O.A.C. 381; 121 C.C.C.(3d) 139 (C.A.), refd to. [para. 59].

R. v. Skin, [1988] B.C.J. No. 364 (C.A.), refd to. [para. 61].

R. v. Joinson (1986), 32 C.C.C.(3d) 542 (B.C.C.A.), refd to. [para. 61].

Korponay v. Canada (Attorney General) - see R. v. Korponay.

R. v. Korponay, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 63].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 69].

R. v. Terlecki, [1985] 2 S.C.R. 483; 64 N.R. 233; 65 A.R. 401, refd to. [para. 69].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 70].

Counsel:

Jo-Ann Parker, for the appellant;

Douglas G. Curliss, for the Crown.

This appeal was heard and decided orally on April 8, 2003, by Bayda, C.J.S., Tallis and Lane, JJ.A., of the Saskatchewan Court of Appeal. Bayda, C.J.S., delivered the following written reasons for the Court of Appeal on June 5, 2003.

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    ...et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 40]. R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1;......
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    • Irwin Books Understanding Section 8: Search, Seizure, and the Canadian Constitution
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    ...(4th) 520, 175 C.C.C. (3d) 474 (S.C.J.) rev’d [2004] O.J. No. 4653 (C.A.) ......................130, 136, 137– 38 R. v. Sewell (2003), 175 C.C.C. (3d) 242, 2003 SKCA 52 ................222, 223, 224, 237 R. v. Shalalah, [2000] N.B.J. No. 14 (C.A.) .................................................
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    • Canada
    • Newfoundland and Labrador Newfoundland and Labrador Provincial Court (Canada)
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    ...51]. R. v. Cox (J.) (1999), 210 N.B.R.(2d) 90; 536 A.P.R. 90; 132 C.C.C.(3d) 256 (C.A.), refd to. [para. 56]. R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 134 C.C.C.(3d) 187 (C.A.), refd to. [para. 6......
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    • June 30, 2004
    ...(2003), 238 Sask.R. 183; 305 W.A.C. 183; 2003 CarswellSask 789; 2003 SKCA 106, refd to. [para. 80, footnote 28]. R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 38 M.V.R.(4th) 190; 2003 CarswellSask 407; 2003 SKCA 52, refd to. [para. 80, footnote 28]. R. v. ......
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    ...et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 40]. R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1;......
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    ...3 S.C.R. 145 at 164–65; R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.); R. v. Luc , 2004 SKCA 117; R. v. Perello , 2005 SKCA 8; R. v. Sewell , 2003 SKCA 52; R. v. Rutten , 2006 SKCA 17; R. v. Williams (1995), 58 B.C.A.C. 53 (C.A.); and R. v. Deprez (1994), 97 Man. R. (2d) 272 (C.A.). See, gener......
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    ...290, 291, 293 R v Sekhon, 2009 BCCA 187 ................................................................................ 97 R v Sewell, 2003 SKCA 52 .................................................................................. 338 R v SF (2003), 102 CRR (2d) 288, [2003] OJ No 92 (Ct J)......
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