R v Knott, 2019 MBCA 97

Citation: R v Knott, 2019 MBCA 97 Date: 20191001 Docket: AR19-30-09220 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) W. G. Marks ) for the Appellant ) Respondent ) J. S. Kliewer and ) H. D. P.

Crawley ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: MORGAN STUART KNOTT ) September 17, 2019 ) ) Written reasons: (Accused) Appellant ) October 1, 2019 SPIVAK JA (for the Court): [ 1 ] The accused was convicted of numerous firearm and drug offences and three counts of possession of firearms while prohibited. He received a total sentence of 11 years’ incarceration: nine years on the substantive offences and two years consecutive for breaching the prohibition orders. He appeals his convictions, seeks leave to appeal and, if granted, appeals his sentence.

At the hearing of the appeal, we dismissed the conviction appeal and denied leave to appeal sentence with reasons to follow. These are our reasons. [ 2 ] The accused and another individual, Jeffrey Frame, were observed by an off-duty police officer in a restaurant. The officer, aware of outstanding warrants for the accused’s arrest, called other officers who attended and arrested the accused. A bag on the seat beside the accused was searched incident to arrest. In it, the police found a loaded handgun, a large amount of methamphetamine, marihuana, cash, drug paraphernalia and the accused’s identification cards.

The police had prior information connecting the accused with a white Ford F150. A similar truck was in the restaurant’s parking lot and keys to the truck were with the accused when he was arrested. The truck’s licence plate belonged to a rental company, but none of the expected rental vehicle identification features were noted on the truck. The police seized and searched the truck before it was towed to a secure compound.

The police testified at trial that the truck was seized for further investigation and searched before being towed to ensure there were no other weapons, determine ownership and inventory the contents. More drugs, firearms, and identification of the accused were found in the truck, which were later seized pursuant to a search warrant obtained by police. [ 3 ] After a voir dire , the trial judge ruled that the seizure and search of the truck was not in violation of

section 8 of the Canadian Charter of Rights and Freedoms (the Charter ), and admitted the seized items found inside the truck. [ 4 ] At the trial, Frame testified for the defence, and claimed ownership of the methamphetamine and the firearms in the bag and the truck, indicating he placed them there without the accused’s knowledge. In convicting the accused, the trial judge rejected Frame’s evidence, noting inconsistencies with previous statements, within his own evidence and with other evidence at trial. [ 5 ] The accused appeals his convictions on essentially two grounds: (1) that the trial judge erred in failing to find a breach of

section 8 of the Charter and not excluding the seized items from the truck; and (2) that the trial judge erred in his assessment of the credibility of Frame. [ 6 ] As for the first ground, we are all of the view that the trial judge correctly concluded that the accused’s

section 8 Charter rights were not violated and he made no palpable and overriding error with respect to the underlying facts in his analysis. [ 7 ] The trial judge held that the police had authority pursuant to The Highway Traffic Act , CCSM c H60 (the Act ), to

seize and search the truck.

Section 242 of the Act permits detention of a vehicle when an officer has reason to believe that an offencecontrary to the Act or the Criminal Code has been committed in relation to the vehicle. The evidence of the police at trial was that thetruck needed to be seized for further investigation, given the firearms and drugs found in the bag in the accused’s possession, and toascertain the lawful owner of the vehicle. We agree with the trial judge that it would have been unreasonable for the police to leave thetruck, associated with the accused who was in possession of a handgun and drugs, in a public parking lot.

Having assumed legal custodyof the truck, the police were justified in inventorying its contents (see R v Nicolosi (1998), (ON CA), 127 CCC (3d)176 (Ont CA); and R v Wint, 2009 ONCA 52). [8] As for the second ground of appeal, the trial judge’s credibility assessment was his to make and he committed noerror in doing so. The trial judge appropriately used Frame’s police statement, in which he denied knowledge of the seized items, toconclude that his testimony was untruthful.

He considered Frame’s recorded conversation with the accused, which showed Frame’sunfamiliarity with the bag, in determining that his evidence was concocted and incredible. The trial judge’s credibility findings are wellsupported and his reasons demonstrate that he rejected Frame’s evidence as incapable of raising a reasonable doubt. [9] With respect to the sentence appeal, contrary to the accused’s submission, the trial judge was alive to the totalityprinciple, noting that sentences should not be crushing.

The offences here were serious and the accused has a lengthy criminal recordwhich includes firearms convictions. The 11-year sentence was not a crushing one that warrants any adjustment for totality. There is noarguable case that the sentence was unfit or arrived at in error. [10] The conviction appeal and the application for leave to appeal sentence are dismissed. JA JA JA