R. v. Swidnicki (E.S.) et al., (1999) 136 Man.R.(2d) 161 (QB)

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 21, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 136 Man.R.(2d) 161 (QB);1999 CanLII 14141 (MB QB);136 Man R (2d) 161

R. v. Swidnicki (E.S.) (1999), 136 Man.R.(2d) 161 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. MY.023

Her Majesty The Queen v. Edward Scott Swidnicki and Robert Walter McCoy (accused)

(CR 98-03-00012)

Indexed As: R. v. Swidnicki (E.S.) et al.

Manitoba Court of Queen's Bench

Portage La Prairie Centre

Beard, J.

April 21, 1999.

Summary:

Separate incidents (surveillance of a parking lot and attendance at a farm house to investigate snowmobilers discharging fire­arms resulted in charges for possession of stolen property). A voir dire was held to determine whether evidence obtained in each incident should be excluded under s. 24(2) of the Charter. The accused claimed arbitrary detention, failure to advise of the right to counsel and unreasonable search and seizure.

The Manitoba Court of Queen's Bench held that oral and written statements given in the first incident were to be excluded under s. 24(2), but that evidence obtained in a vehicle search was not to be excluded. The court held that neither the oral statement nor the evidence resulting from the search in the second incident were to be excluded under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reason­able search - Searches incidental to arrest or detention - The accused claimed that a pat-down search subsequent to his deten­tion constituted an unreasonable search and seizure contrary to s. 8 of the Charter - The Manitoba Court of Queen's Bench held that a search incidental to a detention must be for a valid objective such as "to ensure the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The search must not be conducted in an abus­ive fashion and any physical or psycho­logical constraint should be proportionate to the circumstances." - The court held that the minimally invasive frisk search was not an unreasonable search and seizure - The court inferred that the officer had a subjec­tive intent to search to ensure his safety - See paragraphs 136 to 154.

Civil Rights - Topic 1508

Property - General principles - Expecta­tion of privacy - Police went to a farm to in­vestigate a complaint of snowmobilers discharging firearms - The accused Swid­nicki answered the door and consented to police searching the property for snowmo­bile tracks - Swidnicki advised that he was just staying on the property; that the accused McCoy leased it - The lease excluded the outbuildings, which neigh­bouring farmers had the exclusive right to use - While searching the property, police saw vehicles through the open door of an outbuilding - A licence check revealed a stolen vehicle - The accused disavowed any involvement, but volunteered that there were more stolen vehicles in the outbuild­ings - The accused was then arrested and advised of his Charter rights - A search of his pockets revealed a key to another outbuilding containing stolen vehicles - The police secured the property pending obtention of a search warrant - The accused submitted that the evidence of the outbuilding's contents was obtained pursu­ant to an unreasonable search and seizure and should be excluded from evidence under s. 24(2) of the Charter - The Mani­toba Court of Queen's Bench held that since the accused had no right to use the outbuildings, they had no expectation of privacy in their contents and lacked stand­ing to seek exclusion of the evidence - See paragraphs 107 to 123.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - The accused's vehicle was searched without warrant, with his consent, after the accused was arbitrarily detained and his right to counsel under s. 10(b) of the Charter was violated - The accused's consent was obtained without police ad­vising him that he had a right to refuse to permit the search without warrant - The Manitoba Court of Queen's Bench held that the accused's consent was not an informed consent and he did not waive his right to be secure against an unreasonable search and seizure under s. 8 of the Char­ter - Absent consent or proof by the Crown on a balance of probabilities that the search was reasonable, the search consti­tuted an unreasonable search and seizure contrary to s. 8 - See paragraphs 62 to 74.

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - [See Civil Rights - Topic 1645 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Police doing surveillance of a parking lot suspected the accused driver (and his passengers) were attempting to steal vehicles or their con­tents - The police activated their emer­gency lights and stopped the vehicle as it left the parking lot - The accused driver, who could not produce a licence, accom­panied police to their vehicle to check his identity - The accused was searched for weapons, as police were in an unmarked vehicle with no safety screen - The ac­cused's licence had expired and he was told that he would be charged with driving without a valid licence - The police then questioned the accused as to the contents of the truck - The accused volunteered that the goods belonged to the passengers and that he assumed they were stolen - The accused was then told that he might be charged with possession of stolen prop­erty and was advised of his Charter rights - The Manitoba Court of Queen's Bench held that the accused was detained when he made the oral statement implicating his passengers - It was reasonable for the accused to believe he was not free to leave the police vehicle, even though he had not been specifically so advised - See para­graphs 46 to 53.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Police entered a farm property to investigate a complaint of snowmobilers discharging firearms - The accused answered the door, was advised of the purpose of the police visit and was asked if the police could search the property for snowmobile tracks - The accused consented to a search - The police recognized the accused and asked him to come to the police car to check out the accused's claim that he had taken care of an outstanding warrant - The accused sat in the front of the vehicle and was not handcuffed or searched - When police learned a stolen vehicle was on the prop­erty, the accused was asked if he was involved - The accused responded no - The Manitoba Court of Queen's Bench held that at no point was the accused actually detained, nor was there any evi­dence that the accused subjectively believed that he was being detained - See paragraphs 126 to 135.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Manitoba Court of Queen's Bench stated that "it is clear that the police have the right, and indeed the obligation, to investigate com­plaints and to try to solve crimes and that to do this they must be able to ask ques­tions and undertake investigations. ... What is more difficult is to determine is when that questioning becomes a detention ..." - The court stated that a person was detained and entitled to be advised of his right to counsel in three circumstances: "(i) when the police physically detain a person; (ii) when the police assume control over the movement of a person by a demand or direction which may have significant legal consequences and which prevents or impedes his access to counsel; and (iii) when the police address a demand or direction to a person, the refusal to comply with which may have no legal conse­quences [psychological detention where person reasonably believes he must submit or acquiesce in the restraint on his liberty]" - See paragraphs 19 to 23.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Manitoba Court of Queen's Bench stated that the stopping of a vehicle by activating the police vehicle's emergency lights did not, without more, constitute a detention - See paragraphs 36 to 44.

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - Police doing surveillance of a parking lot sus­pected the accused driver (and his passen­gers) were attempting to steal vehicles or their con­tents - The police activated their emer­gency lights and stopped the vehicle as it left the parking lot - The accused driver, who could not produce a licence, accom­panied police to their vehicle to check his identity - The accused was searched for weapons, as police were in an unmarked vehicle with no safety screen - The accused's licence had expired and he was told that he would be charged with driving without a valid licence - The police then questioned the accused as to the contents of the truck - The Manitoba Court of Queen's Bench held that the police had limited common law authority to detain persons for investigative purposes - The police had articuable cause in these suspi­cious circumstances to initially stop the accused - However, once the police exceeded the "stop and question" situation and questioned the accused on the contents of his vehicle, he was detained and the failure to advise him of his right to coun­sel violated s. 10(b) of the Charter - See para­graphs 46 to 61.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused gave a written statement to police after an oral statement was obtained in violation of his s. 10(b) Charter right to counsel and after his vehicle was subjected to an unreasonable search and seizure contrary to s. 8 of the Charter - There was no breach of the Charter in the taking of the written state­ment - At issue was whether the written statement should be excluded from evi­dence under s. 24(2) of the Charter as being tainted by the earlier Charter breaches - The Manitoba Court of Queen's Bench held that the oral statement was conscriptive evidence and ought to be excluded under s. 24(2) - The court held that the subsequent written statement, which was merely a continuation and confirmation of the oral statement, was also to be excluded - See paragraphs 75 to 88.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Stolen goods were dis­covered in the accused's vehicle following an unreasonable search and seizure con­trary to s. 8 of the Charter - The goods were in plain view when the police officers walked up to the stopped vehicle -The Manitoba Court of Queen's Bench held that the evidence was not conscriptive evidence - The police had good reason to suspect the goods were stolen, but did not have reasonable and probable grounds to search the vehicle - The accused had con­sented to the search, but his consent was found to be invalid - The court held that the evidence was not to be excluded - Admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 89 to 104.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1508 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - The Manitoba Court of Queen's Bench discussed the police power to search incidental to an arrest or deten­tion - See paragraphs 138 to 146.

Cases Noticed:

R. v. Esposito (1985), 12 O.A.C. 350; 24 C.C.C.(3d) 88 (C.A.), refd to. [para. 20].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81; 53 C.C.C.(3d) 556, refd to. [para. 21].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97, refd to. [para. 22].

R. v. Bazinet (1986), 14 O.A.C. 15; 25 C.C.C.(3d) 273 (C.A.), refd to. [para. 24].

R. v. Hawkins (J.G.) (1992), 102 Nfld. & P.E.I.R. 91; 323 A.P.R. 91; 72 C.C.C.(3d) 524 (Nfld. C.A.), revd. (1993), 151 N.R. 176; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179; 79 C.C.C.(3d) 576 (S.C.C.), refd to. [para. 27].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 28].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398; 63 C.R.(3d) 14; 4 M.V.R.(2d) 170; 32 C.R.R. 193, refd to. [para. 29].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 56 C.C.C.(3d) 22, refd to. [para. 29].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 30].

R. v. Lawrence (1990), 46 O.A.C. 345; 59 C.C.C.(3d) 55 (C.A.), refd to. [para. 30].

R. v. Clement (N.) (1996), 198 N.R. 234; 92 O.A.C. 81; 107 C.C.C.(3d) 52 (S.C.C.), refd to. [para. 30].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 30].

R. v. Yiu (Q.C.) (1997), 23 O.T.C. 253 (Gen. Div.), affd. (1998), 118 O.A.C. 196 (C.A.), refd to. [para. 42].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 54].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 54].

R. v. Godoy (V.) (1998), 235 N.R. 134; 117 O.A.C. 127 (S.C.C.), refd to. [para. 54].

R. v. McAuley (R.P.) and Smith (D.J.) (1998), 126 Man.R.(2d) 202; 167 W.A.C. 202 (C.A.), refd to. [para. 55].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), leave to appeal refused (1998), 236 N.R. 390 (S.C.C.), refd to. [para. 55].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 66].

R. v. Borden (J.R.) (1994), 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404 (S.C.C.), refd to. [para. 69].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 70].

R. v. L.R.I. and E.T. (1993), 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 26 C.R.(4th) 119 (S.C.C.), refd to. [para. 75].

R. v. Siemens (R.W.) (1994), 92 Man.R.(2d) 206; 61 W.A.C. 206; 88 C.C.C.(3d) 554 (C.A.), refd to. [para. 75].

R. v. Caslake (T.L.) (1998), 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 77].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 33 C.R.(4th) 1 (S.C.C.), refd to. [para. 84].

R. v. Belnavis (A.) and Lawrence (C.) (1997), 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405 (S.C.C.), refd to. [para. 97].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136 (S.C.C.), refd to. [para. 118].

United States v. Gomez (1994), 16 F.3d 254 (8th Cir.), refd to. [para. 122].

R. v. Evans (C.R.) et al. (1996), 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23 (S.C.C.), refd to. [para. 127].

R. v. Lake (J.D.) (1996), 148 Sask.R. 307; 134 W.A.C. 307; 113 C.C.C.(3d) 208 (C.A.), refd to. [para. 139].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 140].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 142].

Authors and Works Noticed:

Paciocco, David, and Stuesser, Lee, The Law of Evi­dence (2nd Ed.), ch. 9 [para. 78].

Counsel:

Terence H. MacKean, for the Crown;

Roberta L. Campbell, for the accused, Swidnicki;

Michael B. Lazar, for the accused, McCoy.

This voir dire was held before Beard, J., of the Manitoba Court of Queen's Bench, Port­age la Prairie Centre, who delivered the following judgment on April 21, 1999.