R. v. Sun (J.), (2015) 362 Nfld. & P.E.I.R. 347 (NLPC)

• Judge: Marshall, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: August 20, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 362 Nfld. & P.E.I.R. 347 (NLPC)

R. v. Sun (J.) (2015), 362 Nfld. & P.E.I.R. 347 (NLPC);

    1125 A.P.R. 347

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JA.033

James Sun (applicant) v. Her Majesty the Queen (respondent)

(Docket: 0113PA01598)

Indexed As: R. v. Sun (J.)

Newfoundland and Labrador Provincial Court

Marshall, P.C.J.

January 26, 2015.

Summary:

Sun was charged with threatening to cause death or bodily harm and willfully causing unnecessary pain, suffering or injury to a dog by kicking it. Sun brought an application, alleging that his ss. 8, 9 and 10(b) Charter rights were violated.

The Newfoundland and Labrador Provincial Court dismissed the application. Sun had not established that his ss. 8, 9 or 10(b) Charter rights were breached.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - Sun was charged with threatening to cause death or bodily harm and willfully causing unnecessary pain, suffering or injury to a dog by kicking it - Sun alleged his Charter rights were violated as a result of the following police conduct: (a) placing Sun under investigative detention in violation of his s. 9 rights; (b) entering his home without his informed consent or on any other legitimate legal basis and the warrantless search that then ensued was in violation of his s. 8 rights; and (c) failing to properly caution him at the outset of the detention in breach of his s. 10(b) rights - Sun sought exclusion of the observation of a pair of safety goggles in his front porch - The Newfoundland and Labrador Provincial Court dismissed the application - The court stated that the sequence of events was as follows: "(a) A complaint is received and a fairly detailed description of the suspect's physical appearance and clothing is provided to police, along with the information that he is in the company of a large black and white dog. The area where the incident occurred is near Autumn Drive in Airport Heights. (b) Constable Walsh, who was assisting with the investigation, proceeds to the Autumn Drive area where he sees Mr. Sun who fits the general description and has a black and white dog with him. He waives him over to the police cruiser and advises him of the complaint, but does not detain him. Mr. Sun asks if he can go inside his house as it is cold outside and is told that he can. (c) When Constable Pike arrives, the two officers go to Mr. Sun's front door and the door is opened by him. Constable Pike advises him of the allegation and says that they wish to speak with him as he matches the description received. Mr. Sun steps aside and motions for them to come in. They go through to the kitchen area at his request and he offers them tea, which they refuse. Mr. Sun then asks to record the conversation which he was told he can do. (d) Constable Pike reads him his rights and caution and the officers leave the room for him to speak to a lawyer in private. On the basis of the legal advice he receives, he declines to give a statement. He is then charged and released on a promise to appear" - The court did not find any breach of Sun's Charter rights - There was nothing to suggest oppressive or abusive conduct by the police or that Sun was the object of racial profiling or a vendetta by Constable Walsh.

Cases Noticed:

R. v. Law (T.M.) (2013), 294 Man.R.(2d) 54; 581 W.A.C. 54; 2013 MBCA 49, refd to. [para. 16].

R. v. Wills (1992), 52 O.A.C. 321 (C.A.), refd to. [para. 17].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 9, sect. 10(b) [para. 3].

Counsel:

Elizabeth Ivany, for Her Majesty the Queen;

Mark Gruchy, for the accused.

This application was heard on August 20, 2014, at St. John's, N.L., before Marshall, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on January 26, 2015.