R. v. Tontarelli (R.), 2009 NBCA 52

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Larlee and Robertson, JJ.A.
• Neutral Citation: 2009 NBCA 52
• Citation: 2009 NBCA 52,(2009), 348 N.B.R.(2d) 41 (CA),348 NBR (2d) 41,247 CCC (3d) 160,[2009] NBJ No 294 (QL),348 N.B.R.(2d) 41,348 NBR(2d) 41,(2009), 348 NBR(2d) 41 (CA),[2009] N.B.J. No 294 (QL)
• Date: 12 June 2009
• Court: Court of Appeal (New Brunswick)

R. v. Tontarelli (R.) (2009), 348 N.B.R.(2d) 41 (CA);

    348 R.N.-B.(2e) 41; 897 A.P.R. 41

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.B.R.(2d) TBEd. SE.033

Renvoi temp.: [2009] N.B.R.(2d) TBEd. SE.033

Roy Tontarelli (appellant) v. Her Majesty the Queen (respondent)

(133-08-CA; 2009 NBCA 52)

Indexed As: R. v. Tontarelli (R.)

Répertorié: R. v. Tontarelli (R.)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Robertson, JJ.A.

September 3, 2009.

Summary:

Résumé:

The accused was convicted of trafficking in marijuana (over 3 kg) and sentenced to 48 months' imprisonment, reduced to 28 months for time spent on remand. The accused appealed his conviction and applied for leave to appeal his sentence.

The New Brunswick Court of Appeal dismissed the conviction appeal and the application for leave to appeal the sentence.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - Police officers (De Botton and Gaunce) witnessed the accused exit a vehicle (driven by Matheson) with Nova Scotia licence plates and enter a vehicle with Quebec plates, the driver of which had engaged in suspicious behaviour - Following a brief discussion and a handshake with the driver, the accused exited the vehicle with a large duffle bag and a gift bag which he promptly placed in the trunk of the Nova Scotia vehicle - Shortly thereafter, both vehicles accessed the Trans Canada Highway travelling towards their respective provinces - The police pulled over the Nova Scotia vehicle, placed Matheson under arrest and searched the vehicle - Ten pounds of marijuana was seized from the trunk - The New Brunswick Court of Appeal stated that the officer who arrested Matheson (Looker) was entitled to rely on the information provided by De Botton and Gaunce in forming his belief, on reasonable and probable grounds, that Matheson had committed an arrestable indictable offence - Looker only had to have a belief that Matheson had committed an indictable offence for which he could be arrested without warrant and that belief had to be founded upon information objectively giving rise to a "credibly based probability" that such an offence had been committed - Matheson's operation of the vehicle constituted evidence of his possession of the contents of the trunk and duffle bag - The "public interest" had required that he be prevented from continuing on his way with the drugs and/or controlled substances believed to be in his trunk - Despite Looker having advised Matheson that he was under arrest for the hybrid offence of possession, the reality was that he was arrested for trafficking, and/or possession for the purpose of trafficking, of the controlled drugs and/or substances in the trunk - The arrest was carried out with the requisite reasonable and probable grounds under s. 495(1) of the Criminal Code - It followed that there was a reasonable basis for searching the trunk and duffle bag - See paragraphs 52 to 62.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Criminal Law - Topic 3152 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The accused was convicted of trafficking in marijuana (over 3 kg) - The accused, at a location in New Brunswick halfway between Nova Scotia and Quebec, exited a vehicle with Nova Scotia licence plates and entered a vehicle with Quebec plates - He exited the Quebec vehicle with a large duffle bag which he promptly placed in the trunk of the Nova Scotia vehicle - Shortly thereafter, both vehicles accessed the Trans Canada Highway travelling towards their respective provinces - The police pulled over the Nova Scotia vehicle - Ten pounds of marijuana were seized from the trunk - The sentencing judge sentenced the accused to 48 months' imprisonment, reduced to 28 months for time spent on remand - The accused applied for leave to appeal the sentence - The New Brunswick Court of Appeal considered whether (1) the sentence was the result of an error of law; (2) the sentencing judge erred in principle in exercising the judge's discretion; and (3) the sentence was clearly unreasonable having regard to the fundamental purpose of sentencing (Criminal Code, s. 719 and Controlled Drugs and Substances Act, s. 10(1)) and its objectives, as well as the principles enunciated in ss. 718.1 and 718.2 of the Code and s. 10(2) of the Act - The court answered each question in the negative where (1) the sentence was authorized by law and untainted by any error of principle; (2) deterrence, both personal and general, overshadowed all other considerations; (3) the accused was a mature offender (40 years old); (4) his record was extensive and significant; and (5) the underlying illegal activity was multi-provincial in scope and involved significant quantities of marijuana - The court denied leave - See paragraphs 63 to 65.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 5830.8 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Criminal Law - Topic 3152 ].

Narcotic Control - Topic 2061

Search and seizure - Warrantless searches - General - Section 11(7) of the Controlled Drugs and Substances Act permitted a peace officer to exercise, without a warrant, the search power described in s. 11(1) of the Act if: (1) the conditions for obtaining a warrant existed and (2) exigent circumstances made it impracticable to obtain one - Section 11(1) provided for the issuance of a warrant authorizing the search of a "place" for a controlled substance and its seizure where a justice was satisfied by information on oath that there were "reasonable grounds" to believe any such substance was in that place - A "place" included a motor vehicle and "reasonable grounds" meant "reasonable and probable grounds" - The New Brunswick Court of Appeal stated that the scope of the common law power of search incident to arrest stood undiminished by the enactment of s. 11(7) - Section 11(7) had no application to searches of motor vehicles conducted in the lawful exercise of the common law power - See paragraphs 44 to 49.

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Criminal Law - Topic 3152 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 3152 ].

Police - Topic 3070

Powers - Arrest and detention - Arrest without warrant - Of person who has committed an indictable offence - [See Criminal Law - Topic 3152 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Criminal Law - Topic 3152 and Narcotic Control - Topic 2061 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - Police officers witnessed the accused exit a vehicle with Nova Scotia licence plates and enter a vehicle with Quebec plates, the driver of which had engaged in suspicious behaviour - Following a brief discussion and a handshake with the driver, the accused exited the vehicle with a large duffle bag and a gift bag which he promptly placed in the trunk of the Nova Scotia vehicle - Shortly thereafter, both vehicles accessed the Trans Canada Highway - The vehicle in which the accused was a passenger travelled eastwardly while the Quebec vehicle travelled westwardly - Both vehicles were tailed, pulled over and searched by the police after the drivers were placed under arrest - The issue arose as to the search of the Nova Scotia vehicle was unlawful due to the lack of exigent circumstances - The New Brunswick Court of Appeal held that exigent circumstances were not a prerequisite to the lawful exercise of the common law power of search incident to arrest in circumstances such as these - See paragraphs 35 to 44.

Police - Topic 3185

Powers - Search - Following arrest or detention - Police officers witnessed the accused exit a vehicle with Nova Scotia licence plates and enter a vehicle with Quebec plates, the driver of which had engaged in suspicious behaviour - Following a brief discussion and a handshake with the driver, the accused exited the vehicle with a large duffle bag and a gift bag which he promptly placed in the trunk of the Nova Scotia vehicle - Shortly thereafter, both vehicles accessed the Trans Canada Highway - The vehicle in which the accused was a passenger travelled eastwardly while the Quebec vehicle travelled westwardly - Both vehicles were tailed, pulled over and searched by the police after the drivers were placed under arrest - Ten pounds of marijuana were seized from the trunk of the Nova Scotia vehicle - The Crown relied on the common law power of search incident to arrest as the foundation for the lawfulness of the search - The New Brunswick Court of Appeal stated that the trial judge found, and it was apodictic, that in searching the trunk and the duffle bag, the officer was acting for a purpose directly related to the driver's arrest - It followed that the search was truly incidental to the arrest - Where the evidence established a reasonable basis to search the trunk for evidence referable to the offence of arrest, there was no compelling reason to exclude that vehicular compartment from the scope of the power of search incident to arrest - See paragraphs 50 and 51.

Droit criminel - Cote 3152

Pouvoirs spéciaux - Pouvoir de perquisition - Fouilles et perquisitions sans mandat - [Voir Criminal Law - Topic 3152 ].

Droit criminel - Cote 3212

Mesures concernant la comparution, la détention et la mise en liberté - Arrestation - Arrestation sans mandat - [Voir Criminal Law - Topic 3212 ].

Droit criminel - Cote 5830.8

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Infractions relatives aux drogues et aux stupéfiants - [Voir Criminal Law - Topic 5830.8 ].

Droit criminel - Cote 5841

Détermination de la peine - Facteurs considérés lors de l'infliction de la peine - Âge du prévenu - [Voir Criminal Law - Topic 5841 ].

Droit criminel - Cote 5850

Peine - Trafic de stupéfiant ou d'une drogue ou substance contrôlées - [Voir Criminal Law - Topic 5850 ].

Droit criminel - Cote 6211

Détermination de la peine - Appels - Modification de la peine - Demande d'autorisation d'appel - Motifs - [Voir Criminal Law - Topic 6211 ].

Police - Cote 3063

Pouvoirs - Arrestation et détention - Sans mandat - Motifs raisonnables et probables - [Voir Police - Topic 3063 ].

Police - Cote 3070

Pouvoirs - Arrestation - Arrestation sans mandat d'une personne ayant commis un acte criminel - [Voir Police - Topic 3070 ].

Police - Cote 3185

Pouvoirs - Fouille et perquisition - À la suite d'une arrestation ou d'une détention - [Voir Police - Topic 3185 ].

Stupéfiants - Cote 604

Infractions - Possession - Preuve - Preuve de possession - [Voir Narcotic Control - Topic 604 ].

Stupéfiants - Cote 2061

Fouilles, perquisitions et saisies - Fouilles et perquisitions sans mandat - Généralités - [Voir Narcotic Control - Topic 2061 ].

Stupéfiants - Cote 2062

Fouilles, perquisitions et saisies - Fouilles et perquisitions sans mandat - Motifs raisonnables - [Voir Narcotic Control - Topic 2062 ].

Cases Noticed:

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. 7].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 23].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 23].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 31].

R. v. Leclerc (O.) (1995), 163 N.B.R.(2d) 225; 419 A.P.R. 225 (C.A.), not folld. [para. 34].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 35].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 35].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 35].

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, folld. [para. 35].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 36].

R. v. Lim (No. 2) (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), refd to. [para. 39].

R. v. Speid (1991), 8 C.R.R.(2d) 383 (Ont. C.A.), leave to appeal refused [1992] 1 S.C.R. xi; 139 N.R. 160; 55 O.A.C. 391, refd to. [para. 39].

R. v. Smellie (S.A.) (1994), 53 B.C.A.C. 202; 87 W.A.C. 202 (C.A.), leave to appeal refused [1995] 2 S.C.R. ix; 191 N.R. 396; 65 B.C.A.C. 80; 106 W.A.C. 80, refd to. [para. 39].

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, refd to. [para. 39].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 46].

R. v. Mitchell (C.) (2005), 295 N.B.R.(2d) 251; 766 A.P.R. 251; 2005 NBCA 104, refd to. [para. 51].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 51].

R. v. Charlton (T.S.) (1992), 15 B.C.A.C. 272; 27 W.A.C. 272 (C.A.), refd to. [para. 51].

Arizona v. Gant, No. 07-542, not folld. [para. 51].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 52].

R. v. Goodine (M.) (2006), 307 N.B.R.(2d) 178; 795 A.P.R. 178; 2006 NBCA 109, refd to. [para. 53].

R. v. Harrington and Scosky, [1964] 1 C.C.C. 189 (B.C.C.A.), refd to. [para. 56].

R. v. Young (1971), 2 C.C.C.(3d) 560 (B.C.C.A.), refd to. [para. 56].

R. v. LeBlanc (K.R.) (2007), 312 N.B.R.(2d) 321; 806 A.P.R. 321; 2007 NBCA 24, refd to. [para. 59].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 61].

R. v. LeBlanc (G.A.) (2003), 264 N.B.R.(2d) 341; 691 A.P.R. 341; 2003 NBCA 75, refd to. [para. 63].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (Looseleaf), paras. 5:0055, 5:0200 [para. 52].

Fontana, James A., and Keeshan, M. David, The Law of Search and Seizure in Canada (7th Ed. 2007), pp. 580, 581 [para. 52].

Counsel:

Avocats:

Roy Tontarelli, appeared in person, for the appellant;

Leonard MacKay, for the respondent.

This action was heard on June 12, 2009, by Drapeau, C.J.N.B., Larlee and Robertson, JJ.A., of the New Brunswick Court of Appeal. The following decision of the court was delivered in both official languages by Drapeau, C.J.N.B., on September 3, 2009.