R v Pilkington (C), 2016 MBCA 96

Citation: R v Pilkington (C), 2016 MBCA 96 Date: 20160930 Docket: AR15-30-08329 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) Z. M. Jones ) for the Appellant Respondent ) ) R. L. Rankin- and - ) for the Respondent ) COLLEEN PILKINGTON ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 30, 2016 CHARTIER CJM (for the Court): [1] The accused appeals her convictions on drug-related charges.

She alleges that the trial judge erred firstly, when heconcluded that the police had reasonable grounds to depart from complying with the knock-and-announce rule in the execution of thesearch warrant, and secondly, in his application of the W(

D) principles (R v W(D), (SCC), [1991] 1 SCR 742). [2] For drug cases, the combination of

section 12 of the Controlled Drugs and Substances Act, SC 1996, c 19 (the CDSA)and the common law knock-and-announce rule found in Eccles v Bourque et al, (SCC), [1975] 2 SCR 739, allows thepolice, in exigent circumstances, to forcibly enter a home without first announcing their presence (see also R v Nguyen (THT), 2007ONCA 645 at paras 20-22, 229 OAC 71).

In this case, the trial judge found that the Crown had established an adequate evidentiaryfoundation with respect to concerns about the destruction of the drug evidence (being small pharmaceutical pills) to warrant departurefrom the knock-and-announce rule. [3] The trial judge also found that the police exercise of discretion, to use the necessary force provided for under section12 of the CDSA, was appropriate in the circumstances.

Key to his decision was his finding that the police involved in this matter hadmade an individual assessment about the risks relating to the levels of safety for suspects, civilians and officers and to the probability thatthe evidence would be destroyed before deciding whether a forced entry was necessary. [4] The trial judge’s assessment of the evidence is owed substantial deference on appellate review (see R v Cornell, 2010SCC 31 at para 25, [2010] 2 SCR 142). We see no error in the trial judge’s conclusion that the search warrant was executed in areasonable manner. [5] Finally, we turn to the W(

D) ground. The trial judge correctly stated and applied the legal principles set out in W(D). He reviewed the evidence at some length and understood the factual issues that arose from the evidence. He found that the explanationsprovided by the accused with respect to the presence of score sheets and hundreds of morphine pills were simply unbelievable in light ofall the evidence. In our view, the accused has not demonstrated any error in principle or any palpable and overriding error with respect tothe facts and the evidence referred to in his W(

D) analysis. [6] The appeal is dismissed.

CJM I agree: JA I agree: JA