C.A.C. No. 122943
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Richard, 1996 NSCA 73
Freeman, Roscoe and Flinn, JJ.A.
BETWEEN:
James Wilson Richard ) Anthony J. Morley
) for the Appellant
Appellant )
)
- and - )
)
)
Her Majesty the Queen ) James C. Martin
) for the Respondent
Respondent )
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)
)
) Appeal Heard:
) March 22, 1996
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) Judgment Delivered:
) March 22,1996
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THE COURT: Appeal dismissed per oral reasons for judgment of Freeman, J.A.; Roscoe and Flinn, JJ.A., concurring.
The reasons for judgment of the Court were delivered orally by:
Freeman, J.A.
When police searched the appellant's cluttered property outside his residence at River Hebert, N.S., they found 173.3 grams of marijuana in several containers in waterproof plastic wraps, a set of triple beam scales, two containers of seeds and a large quantity of small plastic baggies.
He appeals from his conviction of possession of a narcotic for purposes of trafficking, alleging that the police lacked reasonable and probable grounds for making the search or for obtaining their two search warrants. One under s. 487 of the Criminal Code and one under s. 12 of the Narcotic Control Act.
The appellant had been convicted of possession of a narcotic for the purpose of trafficking on March 7, 1993. This is a relevant consideration in determining whether a search is reasonable: see R. v. DeBot (1989), 52 C.C.C. (3d) 193.
Constable Joseph Ryan of the Royal Canadian Mounted Police had two sources who kept him informed of the appellant’s activities. Both had been proven reliable by providing information relevant to previous narcotics seizures. The first source told him on December 13, 1994, that he or she had personal knowledge that the appellant had a large quantity of marijuana on his premises.
The second source told Constable Ryan on January 27, 1995, that the appellant was in possession of a large quantity of marijuana; on March 15, 1995, that the appellant had a large quantity of marijuana for resale and was actively trafficking in it; and on April 4, 1995, that he or she had personal knowledge of a large quantity of marijuana on the appellant's premises within the last forty-eight hours that would remain there for at least twenty-four hours longer.
Constable Ryan so advised Constable Paul Mellon who on April 4, 1995, swore the information on which the search warrant was issued.
The appellant relies on R. v. Fletcher (1994), 140 N.S.R. (2d) 254 in which Justice Carver of the Supreme Court of Nova Scotia, considering a search warrant also based on third-hand information, found there was not sufficient information on which the Justice of the Peace could judicially determine whether reasonable grounds existed.
Fletcher can be distinguished in the present appeal because the first source provides some corroboration for the more relevant and compelling second source, there is evidence of reliability based on the experience of past seizures, and the continuity of the sources' reports going to reputation is particularly germane in light of the appellant's 1993 conviction. The evidence is not overwhelming, but the totality of the circumstances meets the standard of reasonableness: see DeBot. The trial judge was not in error in upholding the search warrant and finding the evidence admissible.
The trial judge made no error in his analysis of the burden of proof in the absence of defence evidence to meet the prima facie case established by the Crown; no improper inferences were drawn from the appellant's decision not to testify. See R. v. LeSage (1995), 95 C.C.C. (3d) 385 (S.C.C.).
With respect to the other grounds of appeal, we have carefully reviewed the evidence and the submissions of counsel. In our view, the conclusions of the trial judge were not unreasonable. See R. v. Burns, [1994] 1 S.C.R. 656, R. v. Yebes, [1987] 2 S.C.R. 168; R. v. W. (R.), [1992] 2 S.C.R. 122.
The appeal is dismissed.
Freeman, J.A.
Concurred in:
Roscoe, J.A.
Flinn, J.A.