R. v. Stacey (E.) et al., (2011) 312 Nfld. & P.E.I.R. 206 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: September 02, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 312 Nfld. & P.E.I.R. 206 (NLPC)

R. v. Stacey (E.) (2011), 312 Nfld. & P.E.I.R. 206 (NLPC);

    971 A.P.R. 206

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. SE.021

Her Majesty the Queen v. Eli Stacey and Gary Stapleton and William Walsh

(2011 PCNL 0811PA00078)

Indexed As: R. v. Stacey (E.) et al.

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

September 2, 2011.

Summary:

The three accused were alleged to have been in possession of non-duty paid alcoholic liquor, thereby committing Federal Excise Act and Provincial Liquor Control Act offences. They were also alleged to have entered into a criminal conspiracy to import the liquor. The accused Walsh was also alleged to have failed to securely store two shotguns. The accused brought a pretrial application alleging a violation of their s. 8 Charter rights and seeking exclusion of the evidence at trial under s. 24(2) of the Charter.

The Newfoundland and Labrador Provincial Court held that there had been no violation of s. 8 of the Charter. Alternatively, the court would not have excluded the evidence under s. 24(2).

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - As a result of a tip, the police commenced a surveillance operation respecting a suspected liquor run to the French archipelago of St. Pierre - The police intercepted the accused Stapleton and Walsh with the boat when it returned to the province - Cst. Lush believed (correctly) that the boat belonged to the accused Stacey - No liquor was found but Lush thought he saw a taillight leaving the scene - He and Cst. Humes followed it - Lush thought (again correctly) that the truck also belonged to Stacey - He lost sight of the taillight - The officers saw the truck backed into a driveway beside a house and shed - Lush thought that he saw someone run behind the shed - He ran over to the end of the shed, but found nothing - Suspecting that the movement which he thought he had seen had been a person, and that the person might have gone in the shed, Lush shone his flashlight in the shed window - It illuminated a cache of contraband liquor - Lush decided to "pull back, and get a warrant" - Corporal Green arrived and knocked on the door of the house - Stacey's son answered and said that it was Walsh's house - No consent to search the shed was given - A warrant was obtained and executed - The Newfoundland and Labrador Provincial Court held that looking in the shed window was not a search - Lush was not looking for evidence of an offence - Instead, he was looking for the person(s) who might have smuggled a boatload of contraband into the country from Saint Pierre - In other words, he was engaged in an investigation of the alleged commission of an offence, and was not there to collect evidence to use against the accused - The court rejected the Crown's argument that Lush was conducting an inspection under s. 260 of the Customs Act - See paragraphs 47 to 66.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - As a result of a tip, the police commenced a surveillance operation respecting a suspected liquor run to the French archipelago of St. Pierre - The police intercepted the accused Stapleton and Walsh with the boat when it returned to the province - Cst. Lush believed (correctly) that the boat belonged to the accused Stacey - No liquor was found but Lush thought he saw a taillight leaving the scene - He and Cst. Humes followed it - Lush thought (again correctly) that the truck also belonged to Stacey - He lost sight of the taillight - The officers saw the truck backed into a driveway beside a house and shed - Lush thought that he saw someone run behind the shed - He ran over to the end of the shed, but found nothing - Suspecting that the movement which he thought he had seen had been a person, and that the person might have gone in the shed, Lush shone his flashlight in the shed window - It illuminated a cache of contraband liquor - Lush decided to "pull back, and get a warrant" - Corporal Green arrived and knocked on the door of the house - Stacey's son answered and said that it was Walsh's house - No consent to search the shed was given - A warrant was obtained and executed - The Newfoundland and Labrador Provincial Court discussed the application of the plain view doctrine to the circumstances - The court found that Cst. Lush was lawfully in furtherance of his investigation when he was near the shed window - Second, his discovery of the cache of contraband when he looked through the window was a surprise, and therefore inadvertent - Third, it was immediately apparent to Lush that the cache was evidence of a crime - Accordingly, it was at least arguable that he would have been in a position to seize the cache without resort to a warrant - See paragraphs 67 to 71.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - As a result of a tip, the police commenced a surveillance operation respecting a suspected liquor run to the French archipelago of St. Pierre - The police intercepted the accused Stapleton and Walsh with the boat when it returned to the province - Cst. Lush believed (correctly) that the boat belonged to the accused Stacey - No liquor was found but Lush thought he saw a taillight leaving the scene - He and Cst. Humes followed it - Lush thought (again correctly) that the truck also belonged to Stacey - He lost sight of the taillight - The officers saw the truck backed into a driveway beside a house and shed - Lush thought that he saw someone run behind the shed - He ran over to the end of the shed, but found nothing - Suspecting that the movement which he thought he had seen had been a person, and that the person might have gone in the shed, Lush shone his flashlight in the shed window - It illuminated a cache of contraband liquor - Lush decided to "pull back, and get a warrant" - Corporal Green arrived and knocked on the door of the house - Stacey's son answered and said that it was Walsh's house - No consent to search the shed was given - A warrant was obtained and executed - The accused brought a pretrial application alleging a violation of their s. 8 Charter rights and seeking exclusion of the evidence at trial under s. 24(2) of the Charter - The Newfoundland and Labrador Provincial Court found no breaches of Stacey and Stapleton's rights, and a minimum, if any, breach of Walsh's rights - Further, the failure to include an authorizing clause in the search warrant did not render it invalid - Alternatively, the court would not exclude the evidence under s. 24(2) - It was real non-conscriptive evidence - At least two of the three accused could not assert any violation of their privacy - The remaining accused might have some limited claim to violation of privacy, but there was limited, if any, connection between the cache of contraband and him at this point in the trial - Finally, it would do the repute of the administration of justice far better to have a full trial hearing of the evidence than to cut the matter short - See paragraphs 91 to 95.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - As a result of a tip, the police commenced a surveillance operation respecting a suspected liquor run to the French archipelago of St. Pierre - The police intercepted the accused Stapleton and Walsh with the boat when it returned to the province - Cst. Lush believed (correctly) that the boat belonged to the accused Stacey - No liquor was found but Lush thought he saw a taillight leaving the scene - He and Cst. Humes followed it - Lush thought (again correctly) that the truck also belonged to Stacey - He lost sight of the taillight - The officers saw the truck backed into a driveway beside a house and shed - Lush thought that he saw someone run behind the shed - He ran over to the end of the shed, but found nothing - Suspecting that the movement which he thought he had seen had been a person, and that the person might have gone in the shed, Lush shone his flashlight in the shed window - It illuminated a cache of contraband liquor - Lush decided to "pull back, and get a warrant" - Corporal Green arrived and knocked on the door of the house - Stacey's son answered and said that it was Walsh's house - No consent to search the shed was given - A warrant was obtained and executed - The accused brought a pretrial application alleging a violation of their s. 8 Charter rights and seeking exclusion of the evidence at trial under s. 24(2) of the Charter - The Newfoundland and Labrador Provincial Court noted that the police evidence regarding what Stacey's son said about Walsh owning the house was hearsay - However, both counsel appeared to proceed on the basis that at least Walsh had established standing to challenge the validity of the search - The three accused took the position that they each had the right to challenge the search, while the Crown took the view that only the owner of the shed could claim a privacy interest in it - The court stated that were it not for this, the entire exercise ought to fail, because there simply was no admissible evidence of any reasonable expectation of privacy on the part of any of the accused in relation to the shed and the onus was on the accused to demonstrate a reasonable expectation of privacy - See paragraphs 36 to 43.

Criminal Law - Topic 3059

Special powers - Search warrants - Form - As a result of a tip, the police commenced a surveillance operation respecting a suspected liquor run to the French archipelago of St. Pierre - The police intercepted the accused Stapleton and Walsh with the boat when it returned to the province - Cst. Lush believed (correctly) that the boat belonged to the accused Stacey - No liquor was found but Lush thought he saw a taillight leaving the scene - He and Cst. Humes followed it - Lush thought (again correctly) that the truck also belonged to Stacey - He lost sight of the taillight - The officers saw the truck backed into a driveway beside a house and shed - Lush thought that he saw someone run behind the shed - He ran over to the end of the shed, but found nothing - Suspecting that the movement which he thought he had seen had been a person, and that the person might have gone in the shed, Lush shone his flashlight in the shed window - It illuminated a cache of contraband liquor - Lush decided to "pull back, and get a warrant" - Corporal Green arrived and knocked on the door of the house - Stacey's son answered and said that it was Walsh's house - No consent to search the shed was given - A warrant was obtained and executed - The Newfoundland and Labrador Provincial Court held that the failure to include an authorizing clause in the search warrant did not render it invalid - See paragraphs 72 to 90.

Criminal Law - Topic 3186

Special powers - Setting aside search warrants - Grounds - Warrant defective - [See Criminal Law - Topic 3059 ].

Criminal Law - Topic 4701

Procedure - Forms - General - Section 849(1) of the Criminal Code provided that: "The forms set out in this Part, varied to suit the case, or forms to the like effect are deemed to be good, valid and sufficient in the circumstances for which they are provided." - The Newfoundland and Labrador Provincial Court stated that "I infer from the inclusion in subsection 1 the words 'or forms to like effect' the will of Parliament to allow some flexibility in the wording of the forms used in furtherance of the Criminal Code." - See paragraphs 79 and 80.

Customs - Topic 3204

Inspection, audit or examination - Inspection - What constitutes - [See Civil Rights - Topic 1642 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1642 ].

Cases Noticed:

R. v. Khuc (T.A.) et al. (2000), 132 B.C.A.C. 139; 215 W.A.C. 139 (C.A.), refd to. [para. 38].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [paras. 38, 42].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 38].

R. v. Baldwin, [2007] N.J. No. 6 (Prov. Ct.), refd to. [para. 39].

R. v. Gatfield (H.), [2002] O.J. No. 166 (Sup. Ct.), refd to. [para. 52].

R. v. LeClaire (K.A.), 2005 NSCA 165, refd to. [para. 53].

R. v. Hillier (G.) et al. (1996), 141 Nfld. & P.E.I.R. 6; 473 A.P.R. 6 (Nfld. Prov. Ct.), refd to. [para. 59].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 63].

R. v. Laurin (R.R.) (1997), 98 O.A.C. 50; 113 C.C.C.(3d) 519 (C.A.), refd to. [para. 63].

R. v. Nguyen, [2005] B.C.J. No. 1750 (B.C.C.A.), refd to. [para. 64].

R. v. Belliveau and Losier (1986), 75 N.B.R.(2d) 18; 188 A.P.R. 18; 30 C.C.C.(3d) 163 (C.A.), refd to. [para. 68].

R. v. Parent, [1989] Y.J. No. 15 (C.A.), dist. [para. 75].

R. v. Olson, [1989] 1 S.C.R. 296; 96 N.R. 223; 33 O.A.C. 369, refd to. [para. 78].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 78].

Canada (Attorney General) v. Francis (2010), 493 A.R. 215; 502 W.A.C. 215; 2010 ABCA 353, refd to. [para. 78].

R. v. Cheechuk (L.S.) (2011), 508 A.R. 121 (Prov. Ct.), refd to. [para. 78].

R. v. Scoville (J.) (2011), 312 Nfld. & P.E.I.R. 180; 971 A.P.R. 180 (N.L. Prov. Ct.), refd to. [para. 81].

R. v. Hennessey, [2005] B.C.T.C. 408 (S.C.), refd to. [para. 86].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22 (N.L.C.A.), refd to. [para. 88].

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. 92].

R. v. Lavhey, 2010 CanLII 33962 (N.L. Prov. Ct.), refd to. [para. 93].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 849(1) [para. 79].

Excise Act, S.C. 2002, c. 22, sect. 260 [para. 57].

Counsel:

G. Picco, Q.C., for Her Majesty the Queen;

D. MacBeath, Q.C., for the accused.

This application was heard on July 22 and August 2 and 12, 2011, by Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision at Grand Bank, N.L., on September 2, 2011.