R. v. Le (T.D.),

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Monnin and Hamilton, JJ.A.
• Neutral Citation: 2011 MBCA 83
• Citation: 2011 MBCA 83,(2011), 270 Man.R.(2d) 82 (CA),275 CCC (3d) 427,[2011] MJ No 319 (QL),270 Man R (2d) 82,[2011] M.J. No 319 (QL),270 ManR(2d) 82,(2011), 270 ManR(2d) 82 (CA),270 Man.R.(2d) 82
• Date: 03 October 2011
• Court: Court of Appeal (Manitoba)

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82 (CA);

      524 W.A.C. 82

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. OC.010

Her Majesty The Queen (respondent) v. Tam Dong Le (accused/appellant)

(AR 09-30-07118; 2011 MBCA 83)

Indexed As: R. v. Le (T.D.)

Manitoba Court of Appeal

Scott, C.J.M., Monnin and Hamilton, JJ.A.

October 3, 2011.

Summary:

The accused was convicted by a jury of first degree murder and was sentenced to the mandatory life imprisonment without eligibility for parole for 25 years. He appealed.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: There are a number of reported decisions involving this accused, which are available at www.mlb.nb.ca by searching "R. v. Le (T.D.)".

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See both Criminal Law - Topic 3045 ].

Civil Rights - Topic 1657

Property - Search and seizure - Search with warrant - Plain view doctrine - Police investigating a murder obtained a search warrant for the accused's residence - They had conducted a real property tax check and had identified the accused as one of the property's owners - The search warrant identified the items to be searched for as "a handgun, a sweatshirt and a ball cap" - In executing the warrant, police seized documents from the top of the refrigerator that linked the accused to the property, including a tax assessment and recent hydro bill - A jury convicted the accused of first degree murder - At issue on his appeal was the scope of the search warrant - The accused asserted, inter alia, that the trial judge had erred in rejecting his argument that the plain view doctrine did not apply because the words of the documents were not in plain view - The Manitoba Court of Appeal stated that "the trial judge was right to conclude that the documents in question were properly seized under s. 489(1)(c) of the Code. CanadianOxy Chemicals [S.C.C. 1999] provides clear authority for a broad interpretation of this section to include documents such as the ones in issue in this case. In any event, I would have no hesitation, if it were necessary to do so, to apply the proviso in s. 686(1)(b)(iii) of the Code as the evidence, even if wrongly admitted, could have had no effect on the eventual outcome of the trial" - The documents had very little, if anything, to do with the accused's eventual arrest and conviction - See paragraphs 101 to 113.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that full disclosure prior to the trial had not occurred - The accused had sought pretrial disclosure of numerous matters, including all documentation connected with the admission of two Crown witnesses to the witness protection program and their withdrawal from that program a short time later - The trial judge, having examined the documents, concluded that those relating to any benefits given by the Crown to the witnesses were relevant, as were details of any discussions relating to the investigation or their testimony - Disclosure of those documents was ordered - All other documents were found to be irrelevant - The Manitoba Court of Appeal held that the refusal of the trial judge to order further disclosure did not deprive the accused of his right to make full answer and defence - Once the trial judge correctly decided that the documents were in the hands of a third party not responsible for prosecuting the accused, the obligation was then on the accused to demonstrate relevance - Relevance was defined by the accused's counsel as relating to the credibility of the witnesses - The trial judge's order reflected that - Without relevance to the witnesses' credibility, further disclosure would have been of no assistance to the accused or the court - See paragraphs 52 to 71.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred in refusing to grant an adjournment of the trial due to illness within the initial defence counsel's family, which resulted in new defence counsel being retained - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's assertion that his right to be represented by counsel of choice had been violated by the refusal to grant an adjournment - While it was not disputed that the entitlement of a person accused of a serious criminal offence to be defended by counsel of choice was very important, the public interest in having serious criminal cases heard expeditiously was also important - The court was not inclined to interfere with the trial judge's exercise of judicial discretion and with her determination of where the balance fell in these circumstances - The trial judge was fully aware of, and took into account, the multitude of factors - There was no miscarriage of justice - See paragraphs 31 to 51.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4483 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1265.1

Offences against person and reputation - Murder - General principles - Jury charge - First degree murder - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the conviction was unreasonable - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's assertion that there was no evidence to sustain a conviction for first degree murder and that the trial judge should have taken it away from the jury - There was ample evidence to support the Crown's theory that the accused, by various words and gestures, had lured the victim across the street - This evidence was capable of leading to the reasonable inference that the accused had the intention to kill the victim and that the intention was formed at least by the time when the accused challenged the victim to fight - Although the time was brief, the trial judge did not err in concluding that the evidence, when taken as a whole, was reasonably capable of supporting the inference that the murder was planned and deliberate, as opposed to being spontaneous - The verdict was not unreasonable - See paragraphs 145 to 150.

Criminal Law - Topic 1269

Offences against person and reputation - Murder - General principles - First degree murder - What constitutes - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 1270

Offences against person and reputation - Murder - General principles - Meaning of "planned" and "deliberate" - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 2820

Jurisdiction - General principles - Where trial judge dies or is otherwise unable to continue - [See Criminal Law - Topic 4483 ].

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - Police investigating a murder obtained a search warrant for the accused's "premises" - At issue on the accused's appeal from his first degree murder conviction was the scope of the search warrant - The Manitoba Court of Appeal stated that "the warrant in the case at bar was for 'the premises of [the appellant] at 39 Southlawn Stroll'. It was not a dwelling-house warrant. Instead, one might refer to it as a 'civic address warrant'. ...  In my opinion, a review of the case law leads to the conclusion that the term 'dwelling-house' is narrower than the term 'premises'. This also accords with common sense. In any event, even if it could be said that the warrant here was restricted to the appellant's residence at 39 Southlawn Stroll, the curtilage principle can properly be relied upon to extend the scope of the warrant to include the land immediately surrounding the building, including the flower bed in the contiguous fenced backyard." - See paragraphs 92 and 93.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - A witness in a murder investigation directed police to a location next to a residence co-owned by the accused - The police obtained a search warrant on the basis that "things ... which will provide evidence of and relating to the said offence are concealed in the premises of  ..." - The search warrant was executed - Police found a gun in dirt under a rock in the backyard - The bullet clip was found about four inches or so below the surface of a flower bed - At the accused's trial on a charge of first degree murder, the trial judge concluded that the warrant's scope permitted the police to search the yard and that a second warrant was not required to disturb the soil of the flower bed - As there was no breach of s. 8 of the Charter, the evidence was not excluded - A jury convicted the accused of first degree murder - At issue on his appeal was the scope of the search warrant - The Manitoba Court of Appeal concluded that "(1) the search warrant extended to the flower bed in the backyard of the property where the handgun was found, either through an interpretation of the term 'premises' or an application of the curtilage doctrine; and (2) a second warrant was not required in order for the police to lawfully disturb the soil (that is, dig up the handgun clip from the flower bed)." - The appeal was dismissed - See paragraphs 72 to 100.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - Police investigating a murder obtained a search warrant for the accused's residence - They found items that linked the accused to the offence - At his trial on a charge of first degree murder, the accused challenged the validity of the search warrant - The initial trial judge declined to conduct a voir dire, but heard submissions on why a voir dire was necessary, ultimately concluding that there was no need for one as there was no legitimate basis for challenging the warrant's validity - That trial judge, who was appointed to a higher court, was replaced by a new trial judge, who declined to hold a fresh voir dire - A jury convicted the accused of first degree murder - He appealed, asserting, inter alia, that he was entitled to a voir dire to challenge the search warrant's validity - The Manitoba Court of Appeal dismissed the appeal - The initial trial judge followed the proper procedure, applied the correct test and did not commit any errors in principle - The fact that the new trial judge presided over the accused's motion to reopen the voir dire did not deprive the accused of the ability to make full answer and defence or render the trial unfair - No unfairness flowed from the change in judges - The new judge's conclusion not to reopen the voir dire was a reasonable exercise of her judicial discretion - There was no basis for interference - See paragraphs 114 to 126.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See Civil Rights - Topic 1657 ].

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting examination or cross-examination of witnesses - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the identification evidence was inadequate - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's assertion that the trial judge's refusal to allow him to cross-examine police officers on whether they had adopted the procedure for photo line-ups outlined in the Sophonow inquiry removed his ability to expose the officer's bad faith in promising to adopt the Sophonow recommendations and then declining to do so - Whether or not the police reneged on a promise to implement the recommendations was irrelevant to the reliability of the photo line-up process - The defence was permitted to cross-examine the police fully as to their knowledge of the proper procedures and the actual policies in place - The trial judge properly exercised her discretion on the basis that any theoretical relevance was outweighed by the prejudicial effect the questions could have on the jury - See paragraphs 127 to 135.

Criminal Law - Topic 4302.1

Procedure - Trial judge - Duties and functions of - Respecting adjournments - [See Civil Rights - Topic 4620.6 ].

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the identification evidence was inadequate - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's assertion that the trial judge had made numerous omissions in her charge to the jury on identification - The trial judge's charge to the jury on identification was lengthy, occupying about 40 pages of transcript - After a general instruction about identification evidence and its frailties, she then summarized the specific evidence of identification - She outlined for the jury the issues that defence counsel raised with respect to the photo line-up procedures - At no time did the trial judge suggest that the appellant was the shooter - She fully warned the jury about the frailties of eyewitness identification and told them that miscarriages of justice had occurred as a result of wrongful convictions based on honest, but mistaken, eyewitness testimony - She reviewed the evidence of each identification witness in this context - Looking at all of the evidence and the charge in its entirety, it was clear that the jury was fairly and properly instructed as to the frailties of identification evidence and their duty to carefully consider this evidence - There was no merit to this ground of appeal - See paragraphs 136 to 144.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 5435 ].

Criminal Law - Topic 4483

Procedure - Trial - Transfer of trial by one judge to another - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that substantive and procedural errors had occurred when the initial trial judge was appointed to the Court of Appeal, resulting in his replacement by another trial judge - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's assertions that (1) he should have been given an opportunity to make submissions to the initial judge before the decision was made to assign a different judge instead of being forced to make his motion before the new judge; (2) the new judge erred in law in treating the accused's motion as a request for recusal; and (3) there was no binding or persuasive authority that appointment to a court of appeal constituted an inability to continue a trial under s. 669.2 of the Criminal Code - There were lower court decisions that accepted the proposition that the appointment of a judge to a higher court rendered that judge unable to continue proceedings - As to procedure, no specific mechanism appeared to have been adopted - In many cases, replacement judges were simply assigned, with or without reasons - The initial judge was not required to hear submissions or to issue formal reasons - There was no merit to this ground of appeal - See paragraphs 20 to 30.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4948

Appeals - Indictable offences - New trials - Grounds - Lack of record of evidence at trial - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the lack of a complete record for all of the proceedings as a result of a number of gaps in the transcripts (caused, apparently, by a malfunctioning of the court monitor equipment) at various points during the course of the trial resulted in a miscarriage of justice - The Manitoba Court of Appeal dismissed the appeal - In order to determine whether a gap in the transcript resulted in a miscarriage of justice, the court had to consider the effect of the gap in relation to any possible prejudice to an appellant's ability to appeal - The court might consider matters such as the notes of the trial judge, whose evidence is missing, the extent of the missing evidence, the relevant issues at trial, the closing addresses by counsel, the judge's final instructions and whether there was any evidence available which suggested that there was anything of significance said during the gap - Applying that analysis to the gaps at issue here led the court to conclude that there was no miscarriage of justice - See paragraphs 265 to 324.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - On his appeal from a first degree murder conviction, an accused alleged that his defence counsel had provided incompetent representation - The Manitoba Court of Appeal reviewed the relevant case law, holding that the following principles applied to establishing the factual foundation of an allegation of incompetent representation: "(1) It is an appellant who bears the onus of submitting evidence to establish the factual foundation underlying the allegation. (2) Unless the trial transcript (unusually) reveals everything about the allegation, it is expected that appeal counsel will make inquiries of trial counsel and apply to present evidence from trial counsel in response. (3) Where the trial transcript and circumstances surrounding the allegation raise a concern about incompetent representation, courts are generally willing to order evidence to be taken from trial counsel prior to making a decision respecting the allegation. (4) However, where the court is satisfied from the trial transcript and other circumstances that no valid concern has been raised, the court will generally determine at this preliminary stage that an appellant has failed to provide the necessary factual foundation. (5) In more practical terms, just because an appellant has sworn to some facts in an affidavit does not automatically mean that a prima facie case has been raised requiring an answer from trial counsel. It all depends on the circumstances." - See paragraphs 151 to 178.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - On his appeal from a first degree murder conviction, an accused alleged that his defence counsel had provided incompetent representation - The Manitoba Court of Appeal stated that "[i]n determining whether an appellant has met the onus of establishing the factual foundation of a claim for incompetent representation, appellate courts need to carefully examine the consistency of the appellant's allegations in the context of the surrounding circumstances. The clarity, as well as the sufficiency, of an appellant's evidence is crucial as there remains throughout a strong presumption of competence in favour of trial counsel. This requires that a cautious approach be taken regarding allegations against trial counsel by convicted persons seeking to avoid lengthy jail sentences. Background circumstances can include whether the impugned actions of trial counsel occurred at trial in the presence of an appellant, whether there was any objection or comment contemporaneously and whether there was any delay in making the allegations against counsel." - See paragraph 179.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - On his appeal from a first degree murder conviction, an accused alleged that his defence counsel had provided incompetent representation - The Manitoba Court of Appeal stated that in order to determine whether an appeal was successful on this ground, the following analysis had to be undertaken: "(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency is based. If that is not established, there is no need to go any further. (2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assume incompetence on the part of counsel. ...  At this stage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further. (3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, the court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption reverts to 'a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance' and the onus falls on an appellant to establish that it did not. ...  Again, that analysis is conducted without the benefit of hindsight." - See paragraphs 180 to 189.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that his defence counsel provided incompetent representation at trial, resulting in a miscarriage of justice - The Manitoba Court of Appeal dismissed the appeal - Having examined each of the allegations of incompetence in detail, the court concluded that the accused had demonstrated prejudice in none of them (all of which related to unreliable verdict, rather than unfair process) - The record demonstrated that the defence counsel understood the issues and the law and had a clear trial strategy - One critical fact that permeated the multitude of allegations of incompetence was the failure of the accused's counsel on the appeal to endeavour to adduce evidence from the defence counsel - Such a practice was not to be condoned - Allegations of this nature called for an extremely time-consuming analysis by the court - It was therefore appropriate that appellate counsel do what was required to provide the court with all relevant evidence, which obviously included the explanations of trial counsel - See paragraphs 190 to 258.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Civil Rights - Topic 1657 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General (incl. time for) - [See Criminal Law - Topic 3046 ].

Criminal Law - Topic 5214.91

Evidence and witnesses - Admissibility and relevancy - Voir dire - Reopening - [See Criminal Law - Topic 3046 ].

Criminal Law - Topic 5252

Evidence and witnesses - Identification - From photographs - Use of photos by police - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 5435

Evidence and witnesses - Cross-examination of accused - Credibility - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred in failing to prohibit the Crown from cross-examining the accused for the purpose of showing that he had fabricated his evidence in accordance with Crown disclosure and the testimony of Crown witnesses - The Manitoba Court of Appeal dismissed the appeal - Cross-examination on the use of disclosure could be permitted depending on the facts of each case - The court agreed with the Crown that reference to the use of disclosure regarding cell phone records was not impermissible because much of the accused's testimony relied on those records - In any event, the trial judge's comments in the final charge that the jury should not draw an adverse inference because the accused had exercised his right to disclosure were adequate in the circumstances - See paragraphs 259 and 260.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - After an altercation outside of a bar, the accused shot the victim four times at close range, killing him - The accused was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred in failing to rule that evidence that the accused had engaged in misconduct by breaching his recognizance and his parole was inadmissible, even though such conduct had not resulted in convictions, and had misdirected the jury that they could use such evidence in assessing the accused's credibility - The Manitoba Court of Appeal dismissed the appeal - While, generally, an accused cannot be cross-examined regarding misconduct that did not result in a conviction, each case depends on its own facts - Here, the accused led evidence about his previous record, his pending charges and his parole status in relation to his "I wasn't there" defence - The purpose of the cross-examination was to demonstrate to the jury that the accused's evidence was untrue - This was consistent with the Crown's closing address, where it was asserted that all of this evidence was directed to the accused's credibility - There was no merit to this ground of appeal - See paragraphs 261 to 264.

Evidence - Topic 4150.2

Witnesses - Privilege - Privileged topics - Information re participants in Witness Protection Program - [See Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Trang (D.) et al. (2002), 331 A.R. 216; 2002 ABQB 1036, leave to appeal dismissed (2003), 320 N.R. 387; 363 A.R. 193; 343 W.A.C. 193 (S.C.C.), refd to. [para. 23].

R. v. Shrubsall (W.C.) (2000), 186 N.S.R.(2d) 348; 581 A.P.R. 348; 148 C.C.C.(3d) 425 (S.C.), refd to. [para. 23].

R. v. D.P.F., [2002] N.J. No. 445 (N.L.T.D.), refd to. [para. 23].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 176 C.C.C.(3d) 321 (C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 411, refd to. [para. 25].

R. v. Basi (U.S.) et al., [2009] B.C.T.C. Uned. 1149; 2009 BCSC 1149, refd to. [para. 26].

R. v. Neves (J.A.) (2000), 149 Man.R.(2d) 161; 2000 MBQB 37, refd to. [para. 27].

R. v. Zola (F.), [2006] O.T.C. 672 (Sup. Ct.), refd to. [para. 27].

R. v. Baltovich (R.), [2008] O.T.C. Uned. 834 (Sup. Ct.), refd to. [para. 27].

R. v. Dorsey (C.), [2009] O.T.C. Uned. U35 (Sup. Ct.), refd to. [para. 27].

R. v. Poloni (R.L.) et al., [2009] B.C.T.C. Uned. 629; 190 C.R.R.(2d) 162; 2009 BCSC 629, refd to. [para. 28].

R. v. Hiscock (D.W.) (1999), 179 N.S.R.(2d) 350; 553 A.P.R. 350; 1999 NSCA 126, refd to. [para. 28].

R. v. Humby (E.J.) (1990), 85 Nfld. & P.E.I.R. 201; 266 A.P.R. 201 (N.L.T.D.), refd to. [para. 28].

R. v. MacMillan (W.), [2000] B.C.T.C. 1074; 2000 BCSC 1619, refd to. [para. 28].

R. v. Wood (J.D.) (2001), 191 N.S.R.(2d) 201; 596 A.P.R. 201; 157 C.C.C.(3d) 389; 2001 NSCA 38, refd to. [para. 28].

R. v. Gesselman (D.A.), [2005] A.R. Uned. 710; 2005 ABQB 628, refd to. [para. 28].

R. v. Wilson (S.M.), [2004] B.C.T.C. Uned. 568; 2004 BCSC 1233, refd to. [para. 28].

R. v. Newfoundland Recycling Ltd., [2004] N.J. No. 332 (Prov. Ct.), refd to. [para. 28].

R. v. L.T.P., [2005] B.C.T.C. 97; 2005 BCSC 97, refd to. [para. 28].

R. v. Conacher (D.A.) (2004), 244 Sask.R. 243; 116 C.R.R.(2d) 55; 2004 SKPC 12, refd to. [para. 28].

R. v. Lundrigan (D.J.) (2009), 339 Sask.R. 108; 2009 SKPC 73, refd to. [para. 28].

R. v. Herbert, 2003 CarswellOnt 8107 (C.J.), refd to. [para. 28].

R. v. Hazout (M.) et al. (2005), 201 O.A.C. 235; 199 C.C.C.(3d) 474 (C.A.), refd to. [para. 34].

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 36].

R. v. Tortora (F.) (2010), 297 B.C.A.C. 128; 504 W.A.C. 128; 265 C.C.C.(3d) 264; 2010 BCCA 547, refd to. [para. 36].

R. v. White (P.L.) (2010), 474 A.R. 310; 479 W.A.C. 310; 252 C.C.C.(3d) 248; 2010 ABCA 66, refd to. [para. 36].

R. v. Roebuck; R. v. Howdle (1985), 36 Man.R.(2d) 270 (C.A.), refd to. [para. 38].

R. v. Tavares (E.) (2001), 156 Man.R.(2d) 116; 2001 MBCA 62, refd to. [para. 38].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 39].

R. v. Smith (J.) (2001), 154 O.A.C. 51; 161 C.C.C.(3d) 1 (C.A.), leave to appeal dismissed [2002] S.C.C.A. No. 156, refd to. [para. 40].

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 131 C.C.C.(3d) 518 (C.A.), refd to. [para. 41].

R. v. Nichols (R.) (2001), 148 O.A.C. 344; 46 C.R.(5th) 294 (C.A.), leave to appeal dismissed [2002] 1 S.C.R. viii; 285 N.R. 198; 160 O.A.C. 198, refd to. [para. 44].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 63].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 63].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 164 C.C.C.(3d) 24; 2002 ABQB 287, refd to. [para. 67].

R. v. Coombs (K.A.) (2003), 335 A.R. 236; 2003 ABQB 434, refd to. [para. 67].

R. v. Smith (M.G.) (2007), 419 A.R. 179; 2007 ABQB 172; 2007 ABQB 187, refd to. [para. 67].

R. v. Bottineau (2005), 32 C.R.(6th) 70 (Ont. Sup. Ct.), refd to. [para. 67].

R. v. L.A.T. (1993), 64 O.A.C. 380; 84 C.C.C.(3d) 90 (C.A.), refd to. [para. 67].

R. v. Goulbourne, [2007] O.J. No. 3704 (Sup. Ct.), refd to. [para. 67].

R. v. Lee (T.R.) et al. (2007), 426 A.R. 315; 2007 ABQB 454, refd to. [para. 67].

R. v. Horzempa (J.G.) (2005), 199 Man.R.(2d) 84; 2005 MBQB 282, refd to. [para. 67].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 68].

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. 76].

R. v. Charles, 2010 QCCQ 9178, refd to. [para. 77].

R. v. N.M., [2007] O.T.C. Uned. H01; 223 C.C.C.(3d) 417 (Sup. Ct.), refd to. [para. 80].

R. v. Lauda (J.) (1999), 121 O.A.C. 365; 136 C.C.C.(3d) 358 (C.A.), refd to. [para. 80].

R. v. Baker (2003), 107 C.R.R.(2d) 226 (Ont. C.J.), refd to. [para. 83].

Walsh et al. v. Newfoundland (Minister of Finance) (1996), 143 Nfld. & P.E.I.R. 29; 448 A.P.R. 29 (N.L.T.D.), refd to. [para. 83].

R. v. Robertson and Kereluk, 2010 BCPC 2, refd to. [para. 83].

Norman v. State of Arkansas (1996), 931 SW.2d 96 (Ark. Sup. Ct.), refd to. [para. 84].

Gardiner v. Sevenoaks Rural District Council, [1950] 2 All E.R. 84 (K.B.), refd to. [para. 85].

Maunsell v. Olins, [1975] A.C. 373 (H.L.), refd to. [para. 86].

Loukras et al. v. R. (1974), 7 L.C.R. 240 (F.C.T.D.), refd to. [para. 87].

Midland (Town) v. D'Silva (Fred) Enterprises Ltd. et al. (1977), 16 O.R.(2d) 657 (C.A.), refd to. [para. 87].

R. v. Baker (D.) et al., [2004] O.T.C. 148 (Sup. Ct.), revd. (2004), 190 O.A.C. 393 (C.A.), refd to. [para. 87].

R. v. Tesfai (E.) (1995), 148 N.S.R.(2d) 93; 429 A.P.R. 93 (S.C.), refd to. [para. 88].

R. v. Traimany (P.) (2011), 261 Man.R.(2d) 101; 2011 MBQB 15, refd to. [para. 88].

R. v. Kelly (R.W.) (1998), 200 N.B.R.(2d) 1; 512 A.P.R. 1; 132 C.C.C.(3d) 122 (T.D.), refd to. [para. 90].

R. v. Marceau, [1987] B.C.J. No. 1252 (Co. Ct.), affd. [1988] B.C.J. No. 2351 (C.A.), refd to. [para. 91].

R. v. Bradley (P.W.) (1999), 11 B.C.T.C. 202, refd to. [para. 91].

R. v. Chuhaniuk (B.D.) (2010), 292 B.C.A.C. 89; 493 W.A.C. 89; 261 C.C.C.(3d) 486; 2010 BCCA 403, refd to. [para. 92].

Sleeth v. Hurlbert (1896), 25 S.C.R. 620, refd to. [para. 98].

R. v. Reyklin (K.C.) (1999), 26 B.C.T.C. 253 (S.C.), refd to. [para. 98].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1, refd to. [para. 106].

Gillis and R., Re (1982), 1 C.C.C.(3d) 545 (Que. S.C.), refd to. [para. 107].

R. v. Budai (M.K.), [1995] B.C.T.C. Uned. 425 (S.C.), refd to. [para. 107].

R. v. Murray (D.E.), [2007] B.C.T.C. Uned. 825; 2007 BCSC 1480, refd to. [para. 107].

R. v. Masterson (F.), [2009] O.T.C. Uned. G51 (Sup. Ct.), refd to. [para. 107].

R. v. Spindloe (M.) (2002), 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8; 2001 SKCA 58, refd to. [para. 108].

R. v. Bottineau (E.) et al. (2011), 276 O.A.C. 173; 269 C.C.C.(3d) 227; 2011 ONCA 194, refd to. [para. 111].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 115].

R. v. Bains (J.S.) (2010), 285 B.C.A.C. 227; 482 W.A.C. 227; 254 C.C.C.(3d) 170; 2010 BCCA 178, refd to. [para. 115].

R. v. Wilson (N.R.) (2011), 305 B.C.A.C. 254; 515 W.A.C. 254; 2011 BCCA 252, refd to. [para. 115].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 123].

R. v. Hunter (1980), 58 C.C.C.(2d) 190 (Ont. C.A.), refd to. [para. 123].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 321; 90 O.A.C. 18, refd to. [para. 123].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 123].

R. v. Arbuthnot (D.C.) (1991), 7 B.C.A.C. 127; 15 W.A.C. 127 (C.A.), refd to. [para. 125].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 126].

R. v. Doyle (M.T.) (2007), 248 B.C.AC. 307; 412 W.A.C. 307; 2007 BCCA 587, refd to. [para. 134].

R. v. Sandhu (A.G.), [2005] O.T.C. 1165 (Sup. Ct.), refd to. [para. 137].

R. v. Coutu (K.S.) (2008), 231 Man.R.(2d) 275; 437 W.A.C. 275; 2008 MBCA 151, refd to. [para. 138].

R. v. Brown and Angus (1951), 99 C.C.C. 141 (B.C.C.A.), refd to. [para. 139].

R. v. Smith (1952), 103 C.C.C. 58 (Ont. C.A.), refd to. [para. 139].

R. v. Harrison (No. 3) (1950), 99 C.C.C. 96 (B.C.C.A.), refd to. [para. 139].

R. v. McDonald (1951), 101 C.C.C. 78 (B.C.C.A.), refd to. [para. 139].

R. v. Yates (1946), 85 C.C.C. 334 (B.C.C.A.), refd to. [para. 139].

R. v. Sitar (1992), 78 Man.R.(2d) 101; 16 W.A.C. 101 (C.A.), refd to. [para. 139].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 140].

R. v. Lizotte, [1951] S.C.R. 115, refd to. [para. 143].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168 (C.A.), refd to. [para. 143].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 143].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 146].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 146].

R. v. Hay (L.) et al. (2009), 249 O.A.C. 24; 2009 ONCA 398, refd to. [para. 146].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 147].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 150].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 156].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 157].

Strickland v. Washington (1984), 104 S. Ct. 2052 (Sup. Ct.), refd to. [para. 162].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225 (C.A.), leave to appeal dismissed (1997), 224 N.R. 238; 107 O.A.C. 400 (S.C.C.), refd to. [para. 169].

R. v. Elliott (1975), 28 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 171].

R. v. Delisle (1999), 133 C.C.C.(3d) 541 (Que. C.A.), refd to. [para. 172].

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262; 13 C.R.(6th) 390; 2003 ABCA 105, refd to. [para. 173].

R. v. McKenzie (C.) (2007), 228 O.A.C. 182; 51 C.R.(6th) 316; 2007 ONCA 470, refd to. [para. 174].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, leave to appeal dismissed (2004), 332 N.R. 396; 211 B.C.A.C. 320; 349 W.A.C. 320 (S.C.C.), refd to. [para. 174].

R. v. S.G.T. (2011), 366 Sask.R. 90; 506 W.A.C. 90; 265 C.C.C.(3d) 550; 2011 SKCA 4, refd to. [para. 174].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 175].

Antoine v. R. (1984), 40 C.R.(3d) 375 (Que. C.A.), affd. [1988] 1 S.C.R. 212; 84 N.R. 80; 12 Q.A.C. 159, refd to. [para. 177].

R. v. E.J.B. (1992), 105 Sask.R. 15; 76 C.C.C.(3d) 530 (C.A.), refd to. [para. 177].

R. v. Morris (C.I.) (1994), 53 B.C.A.C. 296; 87 W.A.C. 296 (C.A.), refd to. [para. 177].

Von Starck v. R., [2000] 1 W.L.R. 1270 (P.C.), refd to. [para. 198].

R. v. Parnell (1983), 1 O.A.C. 161; 9 C.C.C.(3d) 353 (C.A.), refd to. [para. 198].

R. v. Roche (1949), 95 C.C.C. 270 (N.S.S.C.), refd to. [para. 198].

R. v. Dhillon, [1996] EWCA Crim. 1553, refd to. [para. 198].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 198].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 199].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 201].

R. v. Brisson, [1982] 2 S.C.R. 227; 44 N.R. 1, refd to. [para. 206].

R. v. Côté (D.E.) (2008), 228 Man.R.(2d) 206; 427 W.A.C. 206; 2008 MBCA 70, leave to appeal dismissed (2008), 392 N.R. 388; 251 Man.R.(2d) 321; 478 W.A.C. 321 (S.C.C.), refd to. [para. 207].

R. v. Grandin (D.T.) (2001), 152 B.C.A.C. 228; 250 W.A.C. 228; 154 C.C.C.(3d) 408; 2001 BCCA 340, refd to. [para. 211].

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, refd to. [para. 213].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 214].

R. v. Gosset, [1993] 3 S.C.R. 76; 157 N.R. 195; 57 Q.A.C. 130, refd to. [para. 217].

R. v. Tataryn (V.) (2001), 157 B.C.A.C. 75; 256 W.A.C. 75; 156 C.C.C.(3d) 379; 2001 BCCA 406, refd to. [para. 217].

R. v. Grewal (A.S.) et al. (2003), 185 B.C.A.C. 247; 303 W.A.C. 247; 2003 BCCA 441, refd to. [para. 217].

R. v. Trotman (S.W.) (2006), 229 B.C.A.C. 201; 379 W.A.C. 201; 2006 BCCA 366, refd to. [para. 217].

R. v. Cerra (S.P.) (2002), 174 B.C.A.C. 52; 286 W.A.C. 52; 2002 BCCA 515, refd to. [para. 218].

R. v. Campbell (K.), [2001] O.A.C. Uned. 285; 2001 CarswellOnt 4397 (C.A.), refd to. [para. 218].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 229].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 235].

R. v. Kemash (R.M.P.) (2009), 236 Man.R.(2d) 180; 448 W.A.C. 180; 2009 MBCA 15, refd to. [para. 237].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 153 C.C.C.(3d) 225 (C.A.), refd to. [para. 242].

R. v. Paquette (L.L.) (2008), 425 A.R. 4; 418 W.A.C. 4; 2008 ABCA 49, refd to. [para. 243].

R. v. Curto (W.) (2008), 234 O.A.C. 238; 230 C.C.C.(3d) 145; 2008 ONCA 161, refd to. [para. 252].

R. v. Stewart, [1977] 2 S.C.R. 748; 12 N.R. 201; 1 A.R. 455, refd to. [para. 254].

R. v. Bouhsass (N.) (2002), 165 O.A.C. 247; 169 C.C.C.(3d) 444 (C.A.), refd to. [para. 259].

R. v. Cavan (H.) et al. (1999), 126 O.A.C. 201; 139 C.C.C.(3d) 449 (C.A.), refd to. [para. 260].

R. v. White (I.) (1999), 117 O.A.C. 246; 132 C.C.C.(3d) 373 (C.A.), refd to. [para. 260].

R. v. Drysdale, [1969] 2 C.C.C. 141 (Man. C.A.), refd to. [para. 261].

R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 261].

R. v. Hayes, [1989] 1 S.C.R. 44; 89 N.R. 138; 89 N.S.R.(2d) 286; 227 A.P.R. 286, refd to. [para. 268].

R. v. S.R. (1993), 26 B.C.A.C. 149; 44 W.A.C. 149 (C.A.), refd to. [para. 271].

R. v. Noble (S.J.) (1996), 75 B.C.A.C. 98; 123 W.A.C. 98; 106 C.C.C.(3d) 161 (C.A.), refd to. [para. 271].

R. v. Dobis (M.) (2002), 157 O.A.C. 83; 163 C.C.C.(3d) 259 (C.A.), refd to. [para. 271].

R. v. Doucette (C.) (1993), 135 N.B.R.(2d) 151; 344 A.P.R. 151 (C.A.), refd to. [para. 271].

R. v. Herman (1984), 42 Sask.R. 238 (C.A.), refd to. [para. 277].

R. v. Frederick (E.J.), [1999] Sask.R. Uned. 154 (C.A.), refd to. [para. 277].

Authors and Works Noticed:

American Jurisprudence (2nd Ed.), para. 69 [para. 81].

Driskell Inquiry - see Manitoba, Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell.

Ewaschuk, Eugene E., Criminal Pleadings and Practice in Canada (2nd Ed.) (2011 Looseleaf Update), vol. 2, c. 16, para. 16:2010 [para. 35].

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (8th Ed. 2010), pp. 87, 88 [para. 79]; 103, 210, 211, 213, [para. 104]; 670 [para.105].

Holt, Kathryn Duncan, Case Comment, (1980), 3 U. Ark. Little Rock L.J. 125, generally [para. 81].

Hutchison, Scott C., Morton, James C., and Bury, Michael P., Search and Seizure Law in Canada (2005) (Looseleaf Ed.), vol. 1, c. 16, pp. 16-31, 16-32 [para. 78].

LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (3rd Ed. 1996), generally [para. 84].

LeSage Commission Report - see Manitoba, Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell.

Manitoba, Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell (LeSage Commission Report) (2007), generally [para. 67].

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), generally [para. 132].

Salhany, Roger E., Canadian Criminal Procedure (6th Ed. 1994) (2010 Looseleaf Update), vol. 1, c. 6, para. 6.3340 [para. 35].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.

Counsel:

M.D. Glazer, for the appellant;

E.A. Thomson and E. Szach, for the respondent.

This appeal was heard on October 26 and 27, 2010, by Scott, C.J.M., Monnin and Hamilton, JJ.A., of the Manitoba Court of Appeal. On October 3, 2011, Scott, C.J.M., delivered the following judgment for the court.