R. v. Tomlinson (B.), (2009) 270 B.C.A.C. 134 (CA)

• Judge: Kirkpatrick, Frankel and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 25, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 270 B.C.A.C. 134 (CA);2009 BCCA 196

R. v. Tomlinson (B.) (2009), 270 B.C.A.C. 134 (CA);

    454 W.A.C. 134

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.038

Regina (respondent) v. Barry Tomlinson (appellant)

(CA035322; 2009 BCCA 196)

Indexed As: R. v. Tomlinson (B.)

British Columbia Court of Appeal

Kirkpatrick, Frankel and D. Smith, JJ.A.

May 5, 2009.

Summary:

The accused was the victim of a "home invasion". After fending-off his attackers, the accused called 911. Police officers and emergency health services personnel responded and the accused was taken to the hospital. The police quickly located and arrested the persons involved in the home invasion. One of those persons told the police that the home invasion was connected to the accused's involvement in the drug-trade. Thereafter, the police dealt with the accused as both the victim of a crime and a suspected criminal. Later that day, the police executed a search warrant at the accused's residence and seized cocaine and marijuana. At trial, the accused applied to have the evidence of the seized drugs excluded under s. 24(2) of the Charter on the basis that they had been obtained by violations of his ss. 8 and 9 Charter rights (unreasonable search or seizure and arbitrary detention).

The British Columbia Provincial Court ruled that the evidence was admissible. See 2006 BCPC 69. The accused was convicted of two charges of possession for the purpose of trafficking. He appealed, challenging the ruling that the evidence was admissible. In so doing, he asserted an infringement of his s. 8 Charter rights on a basis that was not advanced at trial.

The British Columbia Court of Appeal dismissed the appeal. The court held that it was not appropriate to permit the accused to expand his grounds under s. 8. Further, although the trial judge erred in several respects, her decision to admit the evidence was, in the result, correct.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See both Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was the victim of a "home invasion" - He called 911 - The police quickly located and arrested the persons involved - One of them told the police that the home invasion was connected to the accused's involvement in the drug trade - While at the home investigating the home invasion, Sergeant Mendel saw electrical ballasts similar to those used to facilitate the indoor cultivation of marijuana - They were located outside a locked door on the lower floor - Sergeant Mendel retrieved a key ring he had seen in the master bedroom, and used one of the keys to open the door - Inside the room was a plastic bag with marijuana in it and what appeared to be a dismantled marijuana grow operation - Detective Lo was told about this room before he applied for a search warrant - The British Columbia Court of Appeal held that the trial judge made a palpable and overriding error when she found that one of Sergeant Mendel's purposes in entering the locked room was to investigate the home invasion - His curiosity having been piqued by the ballasts, his only purpose was to see if the room contained evidence of a drug offence - He thereby infringed the accused's s. 8 Charter right to be secure against an unreasonable search - See paragraphs 39 to 48.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was the victim of a "home invasion" - He called 911 - The police quickly located and arrested the persons involved - One of them told the police that the home invasion was connected to the accused's involvement in the drug trade - Thereafter, the police dealt with the accused as both the victim of a crime and a suspected criminal - While at the home investigating the home invasion, Sergeant Mendel saw electrical ballasts similar to those used to facilitate the indoor cultivation of marijuana - They were located outside a locked door on the lower floor - Sergeant Mendel retrieved a key ring he had seen in the master bedroom, and used one of the keys to open the door - Inside the room was a plastic bag with marijuana in it and what appeared to be a dismantled marijuana grow operation - Detective Lo was told about this room before he applied for a search warrant - The British Columbia Court of Appeal stated that although the accused's residence was searched pursuant to a valid warrant, the warrant being supportable without the information Sergeant Mendel provided to Detective Lo, s. 24(2) was nevertheless engaged because of the temporal connection between Sergeant Mendel's improper actions and the evidence sought to be excluded - In other words, even though the connection between the breach and the seizure of the evidence was tenuous, that evidence was "obtained in a manner" that infringed the accused's s. 8 Charter rights - However, the court refused to exclude the evidence under s. 24(2) where: the breach was technical, the evidence was non-conscriptive, the breach though serious was moderated by the fact that only one room was subjected to an unreasonable search, not to admit the evidence would adversely impact the administration of justice, and the evidence would have been seized in any event - See paragraphs 74 to 82.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was the victim of a "home invasion" - He called 911 - The police quickly located and arrested the persons involved - One of them told the police that the home invasion was connected to the accused's involvement in the drug trade - The accused was arrested for simple possession - Later that day, the police executed a search warrant at the accused's residence and seized cocaine and marijuana - The accused was charged with, and later convicted of, two charges of possession for the purpose of trafficking - The accused submitted that he was arbitrarily detained following his arrest for simple possession - He alleged that it was improper for the police to hold him in custody for five hours until they obtained and executed the search warrant for his residence - The British Columbia Court of Appeal rejected the submission - The court disagreed with the trial judge that the accused's arrest for simple possession "was really a pretext to hold him until [the police] investigation was completed" - That the accused was not arrested, as he could have been, for trafficking and possession for the purpose of trafficking did not detract from the fact that the police had a legitimate interest in continuing the investigation, and in seizing any drugs that might be in his residence - This was made clear to the accused - An arrest did not become unlawful, nor a post-arrest detention arbitrary, merely because the police intended to continue their investigation after the arrest - See paragraphs 62 to 64.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused was the victim of a "home invasion" - He called 911 - The police quickly located and arrested the persons involved - One of them told the police that the home invasion was connected to the accused's involvement in the drug trade - Thereafter, the police dealt with the accused as both the victim of a crime and a suspected criminal - At some point, the accused was arrested for simple possession - Later that day, the police executed a search warrant at the accused's residence and seized cocaine and marijuana - The accused was charged with, and later convicted of, two charges of possession for the purpose of trafficking - The British Columbia Court of Appeal held that the trial judge erred in finding that the accused was detained from the moment he left the hospital to go to the police station - It was possible that the first time the accused had any indication that his status was other than that of a victim was when a detective finished questioning him about the home invasion, and advised him that he was the subject of a drug investigation - Nothing in the evidence called on the voir dire supported a finding that he was detained before that occurred - See paragraphs 49 to 61.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 1646 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - On appeal, the accused raised an issue not raised at trial and took the position that should he succeed on that issue, a new trial was necessary to determine the impact of that breach on the admissibility of critical evidence - The British Columbia Court of Appeal stated the accused's view that the court was unable to make an admissibility determination under s. 24(2) on the present record was antithetical to permitting him to raise his proposed new issue - Accused persons must raise all of their Charter objections to the admissibility of evidence at trial - If they decided, for whatever reason, not to assert a breach of the Charter, then they had to abide by that decision - If convicted they could not, for the first time on appeal, assert a new Charter breach, and seek a new trial for the purpose of resolving the admissibility issue that it raised - Leave to assert a new Charter breach should be granted only when the trial record was such that an appellate court could determine whether such a breach occurred and, if it did, whether the evidence to which objection was taken should be excluded under s. 24(2) - See paragraphs 35 to 38.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Civil Rights - Topic 8584 and Criminal Law - Topic 4905.2 ].

Criminal Law - Topic 4905.2

Appeals - Indictable offences - Procedure - Criminal appeal rules - The accused sought a new trial on a conviction appeal - One issue he raised had not been raised at trial, and he had not sought leave to raise it - The British Columbia Court of Appeal stated that the question of whether leave should be given to advance a new issue must be addressed in an appellant's factum (Criminal Appeal Rules, Form 6, Part 3) - However, notwithstanding the fact that the accused's factum was silent on the question of leave, the court was prepared to deal with the issue where the Crown did not object to this deficiency in the accused's factum and the Crown had addressed the question of leave in its factum - Both parties fully argued the question of leave and the merits - See paragraphs 31 to 34.

Criminal Law - Topic 4913

Appeals - Indictable offences - Procedure - Adding grounds of appeal not mentioned in notice of appeal or factum - [See Criminal Law - Topic 4905.2 ].

Police - Topic 3085

Powers - Arrest and detention - Detention in the public interest - The accused was the victim of a "home invasion" - He called 911 - The police quickly located and arrested the persons involved - One of them told the police that the home invasion was connected to the accused's involvement in the drug trade - The accused was arrested for simple possession - Later that day, the police executed a search warrant at the accused's residence and seized cocaine and marijuana - The accused was charged with, and later convicted of, two charges of possession for the purpose of trafficking - The accused submitted, inter alia, that he should have been released before his residence was searched - The Crown argued that it was in the public interest not to do so because of the need to "secure or preserve evidence of or relating to the offence" (Criminal Code, s. 497(1.1)(a)(ii)) - The British Columbia Court of Appeal agreed with the Crown - That the accused was "under arrested" did not detract from the fact that the detective had reasonable grounds to believe that he was a drug trafficker who kept significant amounts of drugs at his residence - He also had reasonable grounds to believe that the accused kept a firearm there - In these circumstances, it was in the public interest that the accused be detained to give the police a reasonable opportunity to advance their investigation by means of a search warrant, without any concerns that the accused might interfere with their efforts - Further, the detective had grounds to believe that, after the warrant was executed, the accused would likely be charged with the more serious offence of possession for the purpose of trafficking - For these same reasons, the "officer in charge" did not err in failing to release the accused under s. 498(1.1) - See paragraphs 65 to 73.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Police - Topic 3085 ].

Police - Topic 3186

Powers - Search - Private property - [See first Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), appld. [para. 33].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 39].

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. 39].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 126 C.C.C.(3d) 62; 1998 ABCA 418, refd to. [para. 40].

R. v. Waldron (T.V.) (2003), 185 B.C.A.C. 310; 303 W.A.C. 310; 2003 BCCA 442, dist. [para. 42].

R. v. Kaddoura (M.T.) (2009), 267 B.C.A.C. 185; 450 W.A.C. 185; 2009 BCCA 113, refd to. [para. 43].

Kerr v. Baranow (2009), 266 B.C.A.C. 298; 449 W.A.C. 298; 2009 BCCA 111, refd to. [para. 45].

R. v. Pedersen (S.V.) (2004), 193 B.C.A.C. 206; 316 W.A.C. 206; 2 M.V.R.(5th) 1; 2004 BCCA 64, refd to. [para. 55].

R. v. Hall (2004), 193 O.A.C. 7 (C.A.), leave to appeal denied (2006), 356 N.R. 396 (S.C.C.), refd to. [para. 56].

R. v. Pomeroy (M.) (2008), 249 O.A.C. 287; 91 O.R.(3d) 261; 2008 ONCA 521, refd to. [para. 58].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 64].

R. v. Ingle (C.F.) (2007), 246 B.C.A.C. 126; 406 W.A.C. 126; 230 C.C.C.(3d) 77; 2007 BCCA 445, refd to. [para. 72].

R. v. Simpson (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 72].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 75].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 75].

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; 113 C.C.C.(3d) 321, refd to. [para. 76].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 76].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61; 45 C.C.C.(3d) 46, refd to. [para. 80].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 80].

R. v. Bui (D.N.) et al. (2005), 217 B.C.A.C. 194; 358 W.A.C. 194; 201 C.C.C.(3d) 278; 2005 BCCA 482, refd to. [para. 81].

R. v. Jones, [1999] O.A.C. Uned. 144; 133 C.C.C.(3d) 1 (C.A.), leave to appeal refused (1999), 249 N.R. 199; 137 O.A.C. 400 (S.C.C.), refd to. [para. 81].

Counsel:

J.D. Jevning and J.W. Sherren, for the appellant;

T.C. Gerhart, for the respondent.

This appeal was heard on March 25, 2009, at Vancouver, B.C., by Kirkpatrick, Frankel and D. Smith, JJ.A., of the British Columbia Court of Appeal. Frankel, J.A., delivered the following reasons for decision for the court on May 5, 2009.