R. v. Winsor (W.S.), (2014) 345 Nfld. & P.E.I.R. 266 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 16, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 345 Nfld. & P.E.I.R. 266 (NLPC)

R. v. Winsor (W.S.) (2014), 345 Nfld. & P.E.I.R. 266 (NLPC);

    1074 A.P.R. 266

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. JA.009

Her Majesty the Queen v. Wayne Scott Winsor

(2014 PCNL 1312A00959)

Indexed As: R. v. Winsor (W.S.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 20, 2014.

Summary:

The accused was a long haul truck driver who was transporting a load of playground equipment from Ontario to Newfoundland. Police received information from a confidential source indicating that a controlled substance was being transported. As a result, police arrested the accused and searched the tractor trailer. They found cannabis marijuana, methamphetamine and contraband tobacco, which the Crown sought to enter as evidence at the accused's trial for alleged breaches of ss. 4(1) and 5(2) of the Controlled Drugs and Substances Act, s. 32 of the Excise Act, and s. 32 of the Revenue Administration Act. The accused applied pursuant to s. 24(2) of the Charter for exclusion of the seized items, arguing that his ss. 8, 9 and 10(b) Charter rights were violated.

The Newfoundland and Labrador Provincial Court dismissed the application. There were no Charter violations, and even if there were, the court would not have excluded the evidence.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Police received information from a confidential source that a purple Peterbilt tractor trailer with a Badcock's Trucking logo was in the area of Pynn's Brook and that it contained a large quantity of cannabis marijuana - The source described licence plates for the tractor and trailer - The source's information came from his personal observations and from speaking to the "group" involved - The source had been a confidential paid informant for about 15 years - His information had led to about 20 arrests and was consistently corroborated by other information gathered by police - Police went to the Pynn's Brook weigh scale and identified a tractor trailer matching the source's description - Police arrested the driver (Winsor) and searched the tractor trailer - They seized cannabis marijuana, methamphetamine and contraband tobacco - Winsor was charged with various offences - He applied under s. 24(2) of the Charter for exclusion of the seized items, arguing that his arrest was unlawful and the search of the tractor trailer unreasonable, in violation of his ss. 8 and 9 Charter rights - The Newfoundland and Labrador Provincial Court dismissed the application - The arrest was lawful - The officer concluded that the source's information was reliable and therefore had a subjective basis to conclude that reasonable and probable grounds existed - Given the detail of the information, the manner in which the source learned of it, the source's proven general reliability, and the officer having confirmed significant portions of the information through his own observations, there clearly existed an objectively reasonable basis for the arrest - The search was a valid search incidental to a lawful arrest, since the police were specifically looking for evidence - See paragraphs 49 to 56.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first Civil Rights - Topic 8368 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See first Civil Rights - Topic 8368 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See second Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police received information from a confidential source that a purple Peterbilt tractor trailer with a Badcock's Trucking logo was in the area of Pynn's Brook and that it contained a large quantity of cannabis marijuana - The source described licence plates for the tractor and the trailer - The source's information came from his personal observations and from speaking to the "group" involved - The source had been a confidential paid informant for about 15 years - His information had led to about 20 arrests and was consistently corroborated by other information gathered by police - Police went to the Pynn's Brook weigh scale and identified a tractor trailer matching the source's description - Police arrested the driver (Winsor) and searched the tractor trailer - They seized cannabis marijuana, methamphetamine and contraband tobacco - Winsor was charged with various offences - He applied under s. 24(2) of the Charter for exclusion of the seized items, arguing that his arrest was unlawful and the search of the tractor trailer unreasonable, in violation of his ss. 8 and 9 Charter rights - The Newfoundland and Labrador Provincial Court held that the arrest and search were lawful - Even if there was a Charter violation, the court would not have excluded the evidence - The violations were not serious - This was not a case where there was a complete lack of grounds for arrest or a situation in which the police purposely ignored their constitutional obligations - The arrest was conducted peacefully and the search was not intrusive - Although the tractor trailer had a private sleeping area, it could not be equated with a residence - Winsor had an expectation of privacy, but it was limited by the highly regulated nature of tractor trailers, which were subject to routine stops and searches - Although exclusion of the evidence would "gut" the Crown's case, it would also bring the administration of justice into disrepute - See paragraphs 71 to 84.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police received information that a controlled substance was being transported in a tractor trailer - Police located the tractor trailer and arrested the driver (Winsor) at 11:09 p.m. - An officer testified that he immediately cautioned Winsor and advised him of his right to counsel - The officer provided this information "from memory" - At 11:11 p.m., the officer again cautioned Winsor and advised him of his right to counsel, this time by reading from a standardized card - Winsor asked to contact counsel - The officer used his police-issued cell phone to contact duty counsel - He allowed Winsor to sit in the police vehicle alone and use the phone to speak to counsel - When Winsor completed the call, the officer returned to the tractor trailer to search it - Cannabis marijuana, methamphetamine and contraband tobacco were seized - Winsor was charged with various offences - Winsor disputed the officer's version of events - He asserted that he was not advised of his right to counsel until 10 to 15 minutes after his arrest and that this delay constituted a violation of his s. 10(b) Charter rights - The Newfoundland and Labrador Provincial Court accepted the officer's evidence and concluded that there was no s. 10(b) violation - Even if there was a s. 10(b) violation, the court would not have excluded the evidence under s. 24(2) - Police alleviated the violation by informing Winsor of his rights shortly after the arrest, by contacting duty counsel for him, by allowing him to use their cell phone to speak to counsel, and by ensuring that he had both privacy and sufficient time to consult with counsel - Significantly, the police did not obtain or attempt to obtain any evidence until the consultation was completed - The violation was limited solely to the timing of the informational component and not compliance with the implementation component - Police did not elicit or attempt to elicit any incriminating evidence from Winsor prior to informing him of his right to contact counsel - The purpose of s. 10(b) was therefore still fulfilled - See paragraphs 58 to 63, 73, 81 and 82.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1262 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1262 ].

Cases Noticed:

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 28].

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. 28].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 28].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 29].

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. 29].

R. v. Shankar (C.C.) (2007), 222 O.A.C. 267 (C.A.), refd to. [para. 30].

R. v. Cloutier - see Cloutier v. Langlois and Bédard.

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 31].

Arizona v. Gant (2009), 129 S. Ct. 1710, refd to. [para. 32].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 134 C.C.C.(3d) 187 (C.A.), refd to. [para. 33].

R. v. Alkins (C.) (2007), 223 O.A.C. 41; 218 C.C.C.(3d) 97 (C.A.), refd to. [para. 33].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137; 198 C.C.C.(3d) 363; 2005 SKCA 90, refd to. [para. 33].

R. v. Pontari (2007), 161 C.R.R.(2d) 233 (N.L. Prov. Ct.), refd to. [para. 33].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 34].

R. v. Taylor (J.K.) (2013), 561 A.R. 103; 594 W.A.C. 103; 2013 ABCA 342, refd to. [para. 36].

R. v. Hebert (1990), 110 N.R. 1; 57 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 36].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 36].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 36].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 37].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330, refd to. [para. 37].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 38].

R. v. Fan (W.X.), [2013] B.C.T.C. Uned. 1406; 2013 BCSC 1406, refd to. [para. 39].

R. v. Ashby (J.J.) (2013), 340 B.C.A.C. 298; 579 W.A.C. 298; 2013 BCCA 334, refd to. [para. 39].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 225 C.C.C.(3d) 103 (S.C.C.), refd to. [para. 40].

R. v. Furlong (L.) (2012), 323 Nfld. & P.E.I.R. 77; 1004 A.P.R. 77; 2012 NLCA 29, refd to. [para. 40].

R. v. Klimchuk (1991), 4 B.C.A.C. 26; 9 W.A.C. 26; 67 C.C.C.(3d) 385 (C.A.), refd to. [para. 49].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 49].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 50].

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. 51].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 52].

R. v. Warford (R.G.) (2001), 207 Nfld. & P.E.I.R. 263; 620 A.P.R. 263; 161 C.C.C.(3d) 309 (N.L.C.A.), refd to. [para. 53].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 2013 SCC 60, refd to. [para. 67].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 435 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 69].

R. v. Pearson (B.J.) (2012), 536 AR 37; 559 WAC 37 (C.A.), refd to. [para. 72].

R. v. Klassen (J.) (2013), 568 A.R. 121; 2013 ABQB 475, refd to. [para. 73].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112, refd to. [para. 74].

R. v. Rocha (J.) (2012), 296 O.A.C. 357; 2012 ONCA 707, refd to. [para. 75].

R. v. MacDonald (A.) (2012), 294 O.A.C. 232; 2012 ONCA 495, refd to. [para. 77].

R. v. Manchulenko (M.) (2013), 310 O.A.C. 103; 2013 ONCA 543, refd to. [para. 82].

R. v. Noftall (C.R.B.) (2013), 344 Nfld. & P.E.I.R. 163; 1068 A.P.R. 163; 2013 NLTD(G) 171, refd to. [para. 83].

Counsel:

R. Singleton, for Her Majesty the Queen in Right of Canada;

T. Simms, for Her Majesty the Queen in Right of Nfld. and Lab.;

R. Matthews, Q.C., for Mr. Winsor.

This application was heard at Corner Brook, N.L., on January 16, 2014, before Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on January 20, 2014.