R. v. Chaisson, 2006 SCC 11, [2006] 1 SCR 415

                                                 SUPREME COURT OF CANADA

Between:

David Chaisson

Appellant

and

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Binnie, Fish, Abella and Charron JJ.

______________________________

R. v. Chaisson, [2006] 1 S.C.R. 415, 2006 SCC 11

David Chaisson                                                                                                Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Chaisson

Neutral citation:  2006 SCC 11.

File No.:  31155.

2006:  March 15; 2006:  March 30.

Present:  McLachlin C.J. and Binnie, Fish, Abella and Charron JJ.

on appeal from the court of appeal for newfoundland and labrador

Criminal law — Appeals — Findings of fact — Court of Appeal setting aside accused’s acquittal and entering conviction — Whether Court of Appeal impermissibly substituted its own findings of fact for those of trial judge.

Constitutional law — Charter of Rights  — Arbitrary detention — Unreasonable search or seizure — Right to counsel — Exclusion of evidence — Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 10 (b), 24(2) .

A police officer observed the accused sitting in a darkened car with another person.  The officer noted that the accused and the passenger reacted with shock when they noticed his presence.  He also saw, or thought he saw, the accused throw something to the other side of the car.  Suspecting that there were drugs in the car, the officer told the occupants to get out of their car but did not read them their rights.  He noticed a bag of marijuana in the car and arrested the accused.  At the police station, the officer cautioned him and read him his rights.  The trial judge acquitted the accused on a charge of possession of marijuana for the purpose of trafficking.  The trial judge found that the accused’s rights under ss. 8 , 9  and 10 (b) of the Canadian Charter of Rights and Freedoms  had been violated, and excluded the impugned evidence under s. 24(2)  of the Charter .  The Court of Appeal entered a conviction, concluding that only s. 10 (b) had been violated and that this violation did not warrant exclusion of the evidence.

Held:  The appeal should be allowed and the acquittal restored.

The Court of Appeal impermissibly substituted its own findings of fact for those of the trial judge.  The trial judge was entitled, on the facts as he found them, to conclude that the accused’s Charter  rights under ss. 8 , 9  and 10 (b) had been violated, and he committed no reviewable error in concluding that the cumulative effect of these violations warranted exclusion of the impugned evidence under s. 24(2) . [7]

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 10 (b), 24(2) .

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) .

APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Wells C.J.N.L. and Cameron and Welsh JJ.A.) (2005), 249 Nfld. & P.E.I.R. 252, 743 A.P.R. 252, 200 C.C.C. (3d) 494, [2005] N.J. No. 277 (QL), 2005 NLCA 55, setting aside an acquittal and entering a conviction.  Appeal allowed.

Kenneth James Mahoney, for the appellant.

S. David Frankel, Q.C., and James C. Martin, for the respondent.

The judgment of the Court was delivered by

1                                   Fish J. — The appellant, David Chaisson, was acquitted by Judge Rorke of the Provincial Court of Newfoundland and Labrador, on a charge of possession of marijuana for the purpose of trafficking, contrary to s. 5(2)  of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 .  On an appeal by the Crown, the Court of Appeal for Newfoundland and Labrador set aside the acquittal and entered a conviction instead ((2005), 249 Nfld. & P.E.I.R. 252).  Mr. Chaisson now appeals, as of right, against that judgment.

2                                   The marijuana in question was discovered by a police officer whose suspicions were aroused when he noticed the appellant and a passenger sitting in a darkened automobile behind a closed service station.  The service station was adjacent to a restaurant that had just closed and to another that was open.  The officer approached the parked automobile in his unlit cruiser.  He stated that its occupants reacted with shock when they noticed his presence.

3                                   The trial judge, after summarizing the evidence adduced before him, made the following findings of fact:

The officer also says that he saw the accused throw something or thought he saw him throw something to the other side of the car and I think at that point based on everything he came to the conclusion that there was something illegal going on in the car, probably a drug – if not a drug transaction then at least a drug use.  And at that point he made what I think in all the circumstances was a decision that was based on determining whether or not there was any drugs in that car and if so, getting his mitts on it.  He got out of the police car, he told these gentlemen to get out of their car, he didn’t warn them, he didn’t caution them, he didn’t give them their rights, he just told them to get out of the car and the passenger got out first and subsequently the defendant got out.  After the passenger got out he saw a bag of marijuana on the floor of the car on the passenger side and that being so he had the two men on the hood of the car.  He took the defendant over and put him in the back of the police car, told him he was under arrest for possession, didn’t caution him, didn’t give him his rights, went back, called for backup who quickly arrived and took the other man into custody.  Subsequently he took the accused back to the police station.  He tells us that he cautioned him, gave him his rights.

4                                   On the facts as he found them, the trial judge concluded that the appellant’s rights under ss. 8 , 9  and 10 (b) of the Canadian Charter of Rights and Freedoms  had been violated.  The appellant’s detention was arbitrary and, “but for the detention the marijuana [found by the police officer] on the floor [of the appellant’s automobile] would not have been discovered and but for the marijuana on the floor being discovered, there would have been no right to arrest these men”.  And but for the discovery of the marijuana on the floor, the trial judge reiterated, there would have been no reasonable basis for a search of the vehicle and for the resulting arrest of its occupants.  Bearing in mind the cumulative impact of these violations on the appellant’s constitutional rights, the trial judge excluded, under s. 24(2)  of the Charter , the marijuana found in his car and entered an acquittal.

5                                   The arresting officer, we note in passing, stated that his purpose in telling the appellant and his passenger to leave the car was to search it though he thought that he did not have the legal authority to require them to do so.

6                                   On its appeal to the Court of Appeal, the Crown, in response to a question by the Chief Justice of Newfoundland and Labrador, acknowledged that “there is . . . a breach of the Charter  in the sense of detention, arbitrary detention [section 9 ]” and agreed as well  that “there is a breach of the Charter  in the sense of . . . section 8  [unreasonable search or seizure]” (Appellant’s Record, at p. 163).  This concession by the Crown was, of course, not binding on the Court of Appeal.  And the court held notwithstanding the Crown’s concession that there had been no breach of the appellant’s rights under ss. 8  and 9 , but that his right to counsel under s. 10 (b) had been violated.  The court concluded that this violation alone, in view of all the circumstances, did not warrant exclusion of the evidence under s. 24(2) .  Accordingly, the court set aside the acquittal entered by the trial judge and substituted a conviction.

7                                   We are all of the view that the Court of Appeal erred in concluding as it did.  With respect, we are satisfied that the trial judge was entitled, on the facts as he found them, to conclude that the appellant’s rights under ss. 8 , 9  and 10 (b) of the Charter  had been violated.  We are satisfied as well that the trial judge committed no reviewable error in concluding that the cumulative effect of these violations warranted exclusion of the impugned evidence under s. 24(2)  of the Charter .  In reaching a contrary conclusion, the Court of Appeal impermissibly recast the issues by substituting its own findings of fact for those of the trial judge.

8                                   In the result, the appeal is allowed and the verdict of acquittal entered by the trial judge is restored.

Appeal allowed.

Solicitors for the appellant:  Baker Mahoney Law Firm, St. John’s.

Solicitor for the respondent:  Attorney General of Canada, Vancouver.