2012 NBCA 14, 2012 NBCA 14

COURT OF APPEAL OF NEW BRUNSWICK 29-11-CA THEODORE (TEDDY) HACHEY APPELLANT THEODORE (TEDDY) HACHEY APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Hachey v. R., 2012 NBCA 14 Hachey c.

R., 2012 NBCA 14 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Provincial Court: December 2, 2010 Appel d’une décision de la Cour provinciale : Le 2 décembre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 8, 2011 Appel entendu : Le 8 novembre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012

Counsel at hearing: For the appellant: Theodore (Teddy) Hachey appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Theodore (Teddy) Hachey a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal against conviction is dismissed. LA COUR L’appel de la déclaration de culpabilité est rejeté.

The following is the judgment delivered by THE COURT [1] On December 2, 2010, a judge of the Provincial Court convicted Theodore Hachey of possessing cocaine for the purpose of trafficking, an offence set out in s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. The judge sentenced Mr. Hachey to a term of imprisonment of three years. At the same time, the judge also sentenced Mr. Hachey to a consecutive term of six months for being unlawfully at large, contrary to s. 145(1)(

b) of the Criminal Code , to which he had previously pled guilty. Mr. Hachey appeals his conviction on the drug charge. His Notice of Appeal challenges the admissibility of evidence the police obtained from a pharmacist on the ground this information was obtained in violation of Mr. Hachey’s right to be secure from an unreasonable search and seizure, as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms . [2] The facts of this case are straightforward. On December 15, 2009, Mr.

Hachey was arrested and placed in the back of a police car, which, in accordance with the usual routine, had been thoroughly searched that morning in preparation for use. During the drive to the police station, Mr. Hachey was noted to be squirming a lot, which aroused suspicion. As a result, once Mr. Hachey was out of the vehicle, it was searched again. This time, in the back of the car, an officer located a bottle in which were three transparent bags containing approximately 14 grams of what was later confirmed to be cocaine. No one had been in the back of the vehicle since it had been searched in the morning.

[3] The bottle the police found was a prescription bottle withonly part of the label attached. Nevertheless, the police were able to identify thepharmacy where it had originated. A pharmacist provided the police with somepreliminary information, which led the investigators to obtain a Production Order.Information then obtained from the pharmacy records, in compliance with thisOrder, confirmed the bottle was one that had been issued to Mr. Hachey. [4] Mr.

Hachey did not raise any Charter issue at trial.However, he now argues he was the victim of an unreasonable search because theProduction Order was in part based on some of the preliminary information thepharmacist had provided to the police. [5] The law is clear that in order for one to be allowed to raise aCharter question for the first time on appeal, there must be a sufficient evidentiaryrecord to resolve the issue, it must be shown that the failure to raise the issue at trialwas not a tactical decision, and the Court must be satisfied that no miscarriage ofjustice will result from the refusal to raise such new issue on appeal: R. v.

Brown, (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82 (QL), at para. 20,per L’Heureux-Dubé J. (dissenting on other grounds), and Black v. R., 2010 NBCA36, 360 N.B.R. (2d) 132, at para. 3, per Bell J.A. [6] In the present case, Mr. Hachey has not met any of theseprerequisites. In particular, we are satisfied no miscarriage of justice will result fromour refusal to allow him to raise a Charter issue at this point. The trial judge believedthe testimony of the police officer regarding the discovery of the cocaine and thejudge inferred that no one other than Mr.

Hachey could have left the drugs in theback seat of the police vehicle. Thus, the evidence the police obtained from thepharmacist had no effect on the verdict. In other words, the ground of appeal isessentially moot because, even if the information obtained from the pharmacy were tobe excluded, the verdict would necessarily have been the same. [7] At the hearing of the appeal, Mr. Hachey, who was self-represented, argued the cocaine had been for personal use. Mr. Hachey did not testifyat trial and there was ample evidence to justify his conviction of possession for thepurpose of trafficking.

In our view, it cannot be said the verdict was unreasonable. [8] For these reasons, the appeal is dismissed.

________________________________ M.E.L. LARLEE, J.A. ________________________________ J.C. MARC RICHARD, J.A. ________________________________ BRADLEY V. GREEN, J.A.