R. v. Sexton (K.M.), (2011) 379 N.B.R.(2d) 249 (CA)

• Judge: Richard, Bell and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 23, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 379 N.B.R.(2d) 249 (CA);2011 NBCA 97

R. v. Sexton (K.M.) (2011), 379 N.B.R.(2d) 249 (CA);

    379 R.N.-B.(2e) 249; 978 A.P.R. 249

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2011] N.B.R.(2d) TBEd. OC.056

Renvoi temp.: [2011] N.B.R.(2d) TBEd. OC.056

Her Majesty the Queen (appellant) v. Kevin Mark Sexton (respondent)

(173-10-CA; 2011 NBCA 97)

Indexed As: R. v. Sexton (K.M.)

Répertorié: R. v. Sexton (K.M.)

New Brunswick Court of Appeal

Richard, Bell and Green, JJ.A.

October 27, 2011.

Summary:

Résumé:

Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges. Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on two bases: first, he contended the search warrant was improperly issued; and, second, if properly issued, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search. The Provincial Court judge rejected the accused's contention that the warrant had been improperly issued. However, he concluded the means employed to execute the warrant were unreasonable. Following an analysis under s. 24(2) of the Charter, the Provincial Court judge excluded the evidence obtained as a result of the search. As a result, the accused was acquitted of all charges. The Crown appealed the findings that the search was conducted in an unreasonable fashion and that the admission of the evidence would bring the administration of justice into disrepute. The accused filed a Notice of Contention in which he challenged the finding that the warrant was properly issued.

The New Brunswick Court of Appeal allowed the Crown's appeal and ordered a new trial. The court affirmed the validity of the warrant.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges - Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on the basis that, inter alia, the search warrant was improperly issued - He asserted that the Information to Obtain was misleading, albeit unintentionally, about whether contraband could be found at his residence - He asserted, quite properly, that the affiant had to provide full, fair and frank disclosure about all material facts, favourable or not - The Provincial Court judge rejected the accused's contention that the warrant had been improperly issued - The New Brunswick Court of Appeal affirmed the validity of the warrant - The Provincial Court judge properly applied the law to the facts when he concluded the warrant was properly issued - See paragraphs 4 to 9.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges - Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on the basis that, inter alia, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search - The Provincial Court judge concluded the means employed to execute the warrant were unreasonable - The New Brunswick Court of Appeal allowed the Crown's appeal and ordered a new trial - The Provincial Court judge erred in finding that the police's reliance on the Canadian Police Information Centre (CPIC) cautions that the accused was "violent" and "armed and dangerous" was "absolutely comical" - In addition to judicial and legislative dictates, there were two very practical reasons why police had to take very seriously the search of someone else's residence - First, it was highly likely that suspects would know the layout of the place being searched much better than the authorities - They would know potential means of escape and potential sources of weapons - Second, the person whose residence was being searched would, in most cases, have a better knowledge of who was present in the premises - In addition to those factors, the police knew that the accused possessed a criminal record - "Information appearing in CPIC, a national database, maintained by the Royal Canadian Mounted Police, constitutes a source of information which is used by virtually every police officer in Canada and whose information is communicated to, and relied upon, by courts throughout the country on a daily basis. Not only should police rely upon CPIC, they would no doubt be negligent and subject to disciplinary action if they choose to disregard it." - While the Provincial Court judge was correct to state that the CPIC report did not constitute a criminal record, that fact did not render the cautions contained therein unreliable - Further, even if the accused had established that the CPIC cautions were unreliable, that fact would have had no impact upon the right of police officers to use the information unless they had doubts about its reliability - See paragraphs 26 and 27.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges - Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on the basis that, inter alia, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search - The Provincial Court judge concluded the means employed to execute the warrant were unreasonable - The New Brunswick Court of Appeal allowed the Crown's appeal and ordered a new trial - The Provincial Court judge erred in his finding that the accused's demeanour prior to the search obviated the need for a hard entry - "While one might debate whether speculation regarding the human reaction to any particular circumstance has any place in either this Court or the Provincial Court, that is not the question that arises as a result of the Provincial Court judge's finding. The only question that must be addressed is whether the police, following the uneventful visit at [the accused]'s door, continued to reasonably hold the view that a hard entry was required. The event at the door changed nothing about [the accused]'s criminal record, outstanding charges or the CPIC cautions. It changed nothing about the police knowledge or lack thereof about the layout of the premises or the occupants of the apartment. The police are owed deference to their conclusion that [the accused]'s response to a search of his premises for cocaine and other drugs might not be the same as when responding to police questions concerning an unrelated matter." - See paragraph 28.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges - Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on the basis that, inter alia, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search - The Provincial Court judge concluded the means employed to execute the warrant were unreasonable - In assessing the reasonableness of the search, the Provincial Court judge expressed particular disdain because the police officers were dressed in full emergency response gear, including tactical weapons, goggles, helmets and balaclavas - The New Brunswick Court of Appeal allowed the Crown's appeal and ordered a new trial - The Provincial Court judge erred in his findings regarding the police uniforms and equipment - Courts should not be micro-managing the police force's choice of equipment - Further, the Provincial Court judge's conclusion that the police were operating anonymously was inconsistent with the evidence - See paragraphs 29 to 32.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Members of the Fredericton Police Force executed a search warrant at the accused's residence that resulted in the laying of numerous charges - Relying upon his Charter right to be free from unreasonable search and seizure, the accused challenged the search and seizure of items on the basis that, inter alia, the means employed to execute the warrant violated his Charter right to be secure from unreasonable search - The Provincial Court judge concluded the means employed to execute the warrant were unreasonable - Following an analysis under s. 24(2) of the Charter, the Provincial Court judge excluded the evidence obtained as a result of the search - The New Brunswick Court of Appeal allowed a Crown appeal, holding that the Provincial Court judge erred in finding that the execution of the warrant was unreasonable - The court commented on the Provincial Court judge's findings with respect to s. 24(2): "With respect, I fail to see how any assessment of the criteria can be undertaken by a trial judge without the very information the Provincial Court judge said he was lacking. Knowledge of the nature of the evidence to be excluded is essential to determining society's interest in the adjudication of the case on its merits. Information about whether the Crown can prove its case via other evidence would, depending upon the circumstances of the case, be important in assessing the impact of the Charter breach and society's interest in the adjudication of the case on its merits. Consideration of the nature of the challenged evidence is an integral part of the [R. v. Grant (2009 SCC)] test. In virtually all cases where the Grant analysis has been applied to exclude evidence, the nature of the evidence was considered by the trial judge. ...This is nothing new. Consideration was given to the nature of evidence under the previous test as well. ... It follows that the trial judge erred in making an order for the exclusion of evidence without first knowing the nature of the evidence and the impact of its exclusion upon the Crown's case." - See paragraphs 34 to 38.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See all Civil Rights - 1646 ].

Droit criminel - Cote 3046

Pouvoirs spéciaux - Mandats de perquisition - Validité - Généralités - [Voir Criminal Law - Topic 3046 ].

Droit criminel - Cote 3054

Pouvoirs spéciaux - Mandats de perquisition - Exécution des mandats de perquisition - Généralités - [Voir Criminal Law - Topic 3054 ].

Droits et libertés - Cote 1604

Biens - Mandats de perquisition - Validité - [Voir Civil Rights - Topic 1604 ].

Droits et libertés - Cote 1646

Biens - Fouille, perquisition et saisie - Définition de fouille, perquisition et saisie déraisonnables - [Voir Civil Rights - Topic 1646 ].

Droits et libertés - Cote 8368

Charte canadienne des droits et libertés - Négation de droits - Mesures de redressement - Exclusion de la preuve - [Voir Civil Rights - Topic 8368 ].

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. 2].

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. 2].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, refd to. [para. 2].

R. v. Tran (L.V.) (2010), 482 A.R. 357; 490 W.A.C. 357; 2010 ABCA 211, refd to. [para. 2].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 2].

R. v. Arsenault (E.J.) (2009), 344 N.B.R.(2d) 113; 884 A.P.R. 113; 2009 NBCA 29, refd to. [para. 6].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 8].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 21].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 22].

R. v. Perry (R.J.) (2009), 341 N.B.R.(2d) 325; 876 A.P.R. 325; 2009 NBCA 12, refd to. [para. 23].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 23].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 38].

R. v. Kelly (F.T.) (2010), 367 N.B.R.(2d) 1; 946 A.P.R. 1; 2010 NBCA 89, refd to. [para. 38].

R. v. Way (C.L.) (2011), 377 N.B.R.(2d) 25; 972 A.P.R. 25; 2011 NBCA 92, refd to. [para. 38].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 38].

Counsel:

Avocats:

Cameron H. Gunn, for the appellant;

George E. Kalinowski, for the respondent.

This appeal was heard on June 23, 2011, by Richard, Bell and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Bell, J.A., in both official languages, on October 27, 2011.