Source: CanLII

SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Boisclair, 2012 NSSC 151

Date: (20120315)
Docket: CRT352409
Registry: Truro

Her Majesty the Queen
Respondent

v.

Mathieu Boisclair
Applicant

Judge: The Honourable Justice Felix A. Cacchione.

Date of hearing: February 13-14, 2012 at Truro, Nova Scotia

Written decision: April 16, 2012

Counsel: Catherine Hirbour, for the applicant
Eric Aucoin, for the respondent

The Court:

[1] The applicant, Mathieu Boisclair, seeks the following orders from the Court:

1. a declaration that the evidence obtained following his arrest be excluded on the grounds that the arrest and the subsequent searches were unreasonable under s. 8 of the Charter and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the Charter;
2. a declaration that the evidence obtained following the arrest be excluded on the grounds that the arrest and detention of the applicant were arbitrary under s. 9 of the Charter and that the use of this evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter;
3. a declaration that the evidence obtained following the arrest be excluded on the grounds that the applicant never gave informed consent to the search under Canadian case law and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the Charter.

[2] The applicant states that the police were waiting for him at the station and questioned him even though they did not have either a search warrant or an arrest warrant. Furthermore, the police encircled him and placed him under psychological duress. He argues that the officers approached him with a dog and that he felt intimidated. The applicant adds that there was a language barrier between him and the officers who were waiting for him at the station. He asserts that the police never explained the legal aspects of informed consent to him and that they did not use a written formula to obtain such consent. In the end, the applicant maintains that in the absence of a warrant, the burden is on the prosecution to prove the legality of the search and consent.

[3] The respondent, the Attorney General of Canada, asserts that this application involves the power of police to act on information related to suspicious activity and to investigate an individual as well as the criteria to obtain consent to a search and the police use of a sniffer dog.

[4] The respondent argues that the search of the applicant's backpack by a sniffer dog was conducted after obtaining voluntary consent from Mathieu Boisclair. The respondent submits, in the alternative, that the employment of the sniffer dog satisfied the constitutional criteria established by the case law that the investigator had reasonable grounds to believe that there were controlled substances. Finally, even if there were Charter violations, the respondent maintains the evidence shows that the investigator acted entirely in good faith and that the exclusion of the evidence would bring the administration of justice into disrepute.

The facts

[5] On October 14, 2010, officer Joe Pilpapil Joe Pilapil of the Royal Canadian Mounted Police (RCMP) received information from a confidential source of the RCMP. This source reported to officer Flanagan. Since officer Flanagan was not available on that day, he asked officer Pilapil to speak to the source and investigate. Officer Pilapil only had six months of experience with the criminal interdiction team when he was assigned to follow up in this case. The source told him that an individual named Mathieu Boislair would arrive in Truro on the same day on a Via Rail train coming from the province of Quebec. The information received also indicated that Mr. Boisclair had purchased a round-trip ticket in cash and that he would return the following day.

[6] In the past, this source had provided information that lead to significant seizures of cocaine.

[7] The reliability of confidential sources was considered in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140. At paragraph 53, Wilson J. wrote: