ISSUES OF INTEREST VOLUME ti>. 8 Written by John H. Post ISSUES OF !BT.KR.EST (VOLUME m. 8) (Written by John M. Post) September 1982 TABLE OF a>BTERTS POLICE .ACAl>EMY' UPDATE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1 KETROACTIVENESS OF PROVISION IR mE QIA1lTEll OF llGRTS ARD PREEDOKS 'lBAT A IETAIRKD Ot ARKESTKD PEKSOH MOST BE llfFORMED OF ms RIGHT m RETAIR ARD IRSTIWC'I mUNSKL WITH.OUT IELAY ••••••••••••••••••••••••••••••••••••••••••••••••• Regina v. Hutton and Beaveridge B. C. Provincial Court File # CCC297 Crim. Kamloops, B. c. 10 May 1982 .................................... 11 ............ 12 DRIVER'S LICENCE SUSPENSIONS Laurie and The queen County Court of Vancouver May 28, 1982 No. CC820610 RKASONABLE EXCUSE m REFUSE GIVIIIG SAMPLE OF BREATH Day and the Queen County Court of Vancouver May 28, 1982 Vancouver No. CC820176 KEASONABLE R>TICE m .ACCUSED, EVIDENTIAK.Y VEIGH'l OF JARGON ••••• The queen and Vine Court of Queen's Bench for Saskatchewan June 16, 1982 13 PR()()F OF A BY'-LAV • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 15 R. v. Lum [1982) 3 W.W.R. 694 British Columbia County Court •TBE REASONABLE ARD PROBABLE GROUHDS JOB. llllING A imwm• The queen v. Shimell Supreme Court of B. C. No. 1/82 Nelson Registry April 2, 1982 ...... 17 - ii - PRIVATE PBOPKRTY - ACCESS BY 'DIE '"GERKRAL PUBLIC'" - HIGHWAY ••••••• Regina v. McMeekin - County Court of Westminster April 23, 1982 No. X827769 New Westminster Registry EBTKIUHG A WELLIRG m EFFECT Alf AlmEST WITHOUT VARRAMT Regina v. Landry Ontario Court of Appeal ........... 20 22 November 17, 1981 DRIVING WITHOUT DUE CARE ARD ATTENTION•••••••••••••••••••••••••••' The Queen and Lower County Court of Vancouver Registry No. CC811186 April 16, 1982 26 ........... 27 .......... 29 MIXING CIVll. AND awmfAL LAV ABUSE OF 'DIE PBOCESS OF mK axnrr • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Regina v. Sparks 65 c.c.c. {2d) 476 Ontario County Court 31 THE JEFENCB OF mT1tAPMENT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 32 ........................................................... 34 MANSLADGllTEll BY LEAVIBG Alf UBGUAKDED EXCAVATION HOTYPIC TICE m ACCUSED KVIDEBTIAK.Y WEIGHT OF JARGON The queen and Vine Court of Queen's Bench for Saskatchewan June 16, 1982 The reasons for judgement in this case were forwarded to us by R.C.M.P. Constable Matt Lowther of Maple Creek, Saskatchewan. Two samples of breath were analyzed and showed that there were 170 milligrams of alcohol in every one hundred millilitres of the accused's blood (170 mg%). Subsequently, a certificate of analysis was placed on the table in front of the accused, whose wife picked it up and gave it to the accused a little later. The accused took the certificate to his lawyer. This manner, the trial judge found, did not amount to the reasonable notice prerequisite to the certificate being proof of its content. Furthermore, the technician, in his testimony, used the jargon of "170 milligrams percent". This the judge held, meant nothing to him and therefore he had nothing in evidence to support a finding what the accused's blood-alcohol content was at the time of analyses. The accused was acquitted and the Crown appealed. In relation to the "reasonable notice" of the certificate being adduced as proof of the accused's blood/ alcohol level, the Justice of the Queen's Bench held that the trial judge "was clearly wrong in rejecting this evidence". The wife was obviously present during the test to assist the accused. She received the certificate as the accused's agent, and the notice to the accused was therefore reasonable. In relation to the jargon {"170 milligrams percent") the Justice of the Queen's Bench said: "The learned judge jumped on the phrase and reached the startling conclusion that he did not know what the witness meant". and observed: ". • • this conclusion indicates the extent to which the learned judge seemed ready to go to acquit this accused". - 14 - It was held that the term used by the breathalyzer technician in his evidence, in context with all of his testimony, made it clear that it referred to 170 milligrams of alcohol in 100 millilitres of blood. "Surely that is the clear and obvious as well as common sense inference to be drawn from the witness' testimony" Crown's appeal allowed Accused convicted. Thank you Matt Lowther! ***** - 15 - PR.OOF OF A BY-LAW R. v. Lum [1982] 3 w.w.R. 694 British Columbia County Court The accused's dog had "harrassed and molested" someone and as a result the accused was charged under a city by-law which prohibits a person to "suffer or allow" his dog to do so. The Crown failed to file a certified copy of the by-law. The lack of proof that the by-law existed and was effective caused the Provincial Court Judge to acquit the accused. The Crown appealed. Section 10 of the B. C. Offence Act (previously the Summary Convictions Act) in essence states that the existence of a regulation made under an Act of the Province (like the Motor Vehicle Act for instance) needs not to be proved when a person is charged with violating it; the judiciary shall take notice of it being effective (judicial notice). Valid legislation made by the two senior levels of government is called law. What enables them is the Constitution. Therefore their authority to so legislate is "original". These senior governments may also delegate or authorize other entities to legislate. This is done by means of a law which is then the enabling legislation for those entities to regulate certain things (the Municipal Act authorizes comm.unities to incorporate and form municipalies who may regulate those things delegated to them by the Act; societies may register under the Societies Act and regulate their internal affairs, etc.). In other words, these entities regulate by law, hence the term "by-law". Regulations made under an Act are in a somewhat similar catagory. The Act itself is the law that was passed by the parliament or legislative assembly; i t is the skeleton which requires some meat to make it a functional body. The Act will, therefore, often include a clause that gives the cabinet authority to create regulations (a category of law known as "Orders in Council"). In other words, there is some similarity in the creation of by-laws and regulations in that both require enabling legislation. One can only assume that this caused the legislators to bundle by-laws and regulations in the same category. The Interpretation Act of B. c. does so by saying that "regulations" means inter alia a by-law enacted "in execution of a power conferred under an Act". It then follows that if the court - 16 - shall take judicial notice of a "regulation made under an Act of the Province" and "that no defendant shall be discharged, by reason only that evidence has not been given of the regulation", this also applies to by-laws. Appeal was allowed Matter was Remitted to the Provincial Court. Comment: In the event anyone finds fault with the explanatory parts of this synopsis, they are mine and were added to clarify the kernel issue of this case. It may also be of interest that law making by Orders in Council has come under some criticism lately. Some knowledgeable observers claim that this exercise of "executive power" is becoming excessive and usurps parliament in that it deprives the elected representatives from questioning or debating those regulatory laws which often affect the man in the street ioore than the Act to which they are appendixed. They claim it to be a form of law making by the bureaucrats who usually write the regulations. The Acts themselves become mere skeletons which perhaps by analogy do no more than select the key while the regulations are the music and the lyrics. This, of course, was not the intent when this form of law making was created. ***** - 17 - •THE KEASOHABLE Alm PKOBABLK GROUNDS FOR. MAlllfG A DEMARD• The queen v. Shimell April 2, 1982 Supreme Court of B. C. No. 1/82 Nelson Registry The accused appealed his conviction for failing to give samples of his breath upon demand. The issue was the reasonable and probable grounds the officer had to make the demand. The trial judge had held that the honesty of the belief on the part of the officer, that the accused had committed an offence under section 234 or 236 of the Criminal Code at the time he made his demand, was established. Therefore, he felt that it was not open to him (the judge) to go on and determine if that belief was based on reasonable and probable grounds. In other words, the judge applied a subjective test to determine if the prerequisites to a proper demand existed. In spite of the fact that the breathalyzer provisions were enacted over a decade ago the question i f this test is a subjective or objective one is not quite settled in B. C.. In some provinces the Court of Appeal have held that the test must be objective. In B. C., this question has been put to the County Court on four occasions* and it appears that the learned judges favored the subjective test. The following are some pros and cons Justice's decision: of each and the Supreme Court The Objective Test If t he test is an objective one the Courts must look beyond the honest belief of the peace officer who made the demand. Then the reasonable and probable grounds must be based on evidence that there were facts and circumstances which would cause a reasonable man (with the experience and knowledge of the officer making the demand) to conclude that the suspect was probably guilty of the offence of impaired driving or over "80 mgs. ". The conclusion of probable guilt is of course, not belief beyond a reasonable doubt or one based on the balance of probabilities. The Courts * R. v. Forrester May 8, 1981 Westminster County Court R. v. Thast February 18, 1981 County Court of Vancouver R. v. Crisp January 17, 1980 County Court of Vancouver Island R. v. Main May 8, 1981 County Court of Kootenay - 18 - have held that if such was the case, the "legislative purpose would be frustrated". In 18811 a court of superior jurisdiction bad this to say about reasonable and probable cause: "I should find reasonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed • • • ••. Whenever the law grants authority to be exercised on reasonable and probable grounds, the test is usually along the lines as quoted above (objective). The Subjective Test A B. C. Supreme Court Justice2 described the subjective test as follows: "As to the reasonable and probable grounds and belief, that is a matter for the mind of the peace officer and not for the mind of the trial judge". Such test includes that the honest belief of the peace officer cannot be substituted by the opinions of the trial judge. If the peace officer swears that he believed the accused had or was committing the offence of impaired driving or over "80 mgs." when he made his demand, then i f he is believed, the grounds requisite to the demand were met. The arguments and reasons favoring the subjective test are persuasive. There is not a greater cause of death outside of disease, than the drinking driver. Yet, it is in a sense a socially acceptable crime, seen by many as an act of indescretion, while the devastating consequences are considered 1 2 Hicks v. Faulkner 8 QBD 167 R. v. Paine (1972) 12 c.c.c. (2d) 50 • - 19 - (usually by those not yet victimized) not unlike any peril of living in a motorized society. It is "the get home crime", and what nobler objective can one have. It is committed by people of all walks of life, including judges, policemen and prosecutors; the slaughter and maiming is abhorring and yet we carry on with little hope for our social acceptability (an influence superior to any legislation) changing in this regard. On the other side is the right of each citizen not to be arbitrarily interfered with in the exercise of his liberties. Lack of adherence to basic principles like these will inevitably lead to abuse; such is human nature. Relinquishing those rights to remedy an abuse which in magnitude seems to overshadow these principles, is attractive. Applying the subjective test to determine if reasonable and probable grounds existed to make the demand smells of such a remedy. Insisting on the objective test, it is argued, is adherence to fundamental principles, an erosion of which will lead to abuses we cannot live with. The Supreme Court Justice in this Skimell case, found no B. binding on him and applied . the objective test, saying: c. precedents •• Historically those words (reasonable and probable grounds) have been taken to indicate an objective test". • • and: "In order to convict the Court must be satisfied beyond a reasonable doubt that the police officer had a belief in facts which, if true, would have created in the mind of a reasonable man a suspicion that the accused was driving a motor vehicle while his ability to drive was impaired by alcohol or, that he was driving while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood". Accused's appeal allowed Case ref erred back to Provincial Court to hear further evidence. Note: Although the conclusions are those of the Supreme Court, the explanatory portions, the comments on the problems of impaired driving and the dilemmas in respect to rights are mine. If this judgment stands, more evidence will have to be given by police on their reasons for making the demand. ***** - 20 - PRIVATE PROPERTY - ACCESS BY THE •GENEUL PUBLIC• - HIGHWAY Regina v. McMeekin - County Court of Westminster April 23, 1982 No. X827769 New Westminster Registry The accused drove her car into a parking area of an apartment block which was designated by signs for "tenant parking only". Due to not securing the dri vet rain, the car lurched forward and rammed into a wall while the accused leaned over the back of the front seat to get the parcel that had to be delivered. She was convicted of careless driving (s. 149 Motor Vehicle Act of B.C.) and appealed, claiming that the parking lot was not "highway" as defined in that Act. To determine this the Court had to decide "whether the public has access to or is invited into the lot", this as the definition of highway says that i t • • • includes every highway within the meaning of the Highway Act and every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles and every private place or passageway to which the public, for the purpose of parking or servicing of vehicles, has access or is invited". The Motor Vehicle Act regulates and is generally intended for the protection of the public. Therefore, it must apply to places where vehicular traffic and public may be found, whether the place is public or private. The public may lawfully not have access, yet the place may become a highway i f the owner allows the public to use it. As soon as he denies the public that access the road ceases to be a highway. The County Court Judge held that: "In B. c. the rule appears to be that general public access is shown when members of the public enter land for a purpose of their own rather than for a purpose incidental to the ownership of the property". Further, the Court drew attention to the fact that the definition speaks of access by the general public in respect to highways, streets, roads and - 21 - of public when it deals with private property. The Court thought this to be logical as in the latter category the group is 100re restricted, particularly in B. C. where that access is only for parking or servicing of vehicles, or by invitation to the public. In this case the Court found that parking by tenants only was too restricted to hold that the public had access. The owner does not offer the property for public parking nor does he even invite the public to enter. Therefore, the lot on which the accident occurred "falls below the threshold of the Act's definition and should not be included as a highway". The Court gave a summary of its conclusions: 1. "General public access" means unrestricted entry to all members of the population within implied limits for a purpose unrelated directly to the property's owner-ship; 2. "Public access" to private property means entry to all members of the public who enter by legal right, or by implied or express permission of the owner, and as a matter of fact, the public enters the property unmolested by the owner; 3. The Motor Vehicle Act restricts the "'public access to private property" group to those who enter for the purpose of parking, service of vehicle, or by invitation to the public; 4. The parking lot in this case has an even more restricted access and falls below the threshold definition of "highway" in the Motor Vehicle Act. Conviction was overturned. ***** - 22 - EHTKRDiG A DWELLIRG TO EFFECT AB AKKEST WITHOUT VAUABT Regina v. Landry Ontario Court of Appeal November 17, 1981 A citizen pointed the accused and his companion out to a police officer as the persons who just attempted to steal a car from a parking lot. The officer followed the two to the accused's home. The officer entered the home either through an open door or one that was opened to him. The officer attempted to arrest the accused and quite a fight ensued. As a result the accused was charged with assaulting a peace officer in the lawful performance of his duty. The trial judge had held that the officer had reasonable and probable grounds to believe that the accused had committed the indictable of fence of attempted theft and did have the authority to arrest the accused. However, since the officer had entered the accused's home he was not in the execution of his duty. The jury acquitted the accused and the Crown appealed. The Ontario Court of Appeal reviewed the geographtcal boundaries (spatial limits) of the officer's authority to arrest. Although the sections of the Criminal Code authorizing peace officers to arrest without warrant is silent on the spatial limits that does not mean that there. are not any. Section 8 of the Criminal Code preserves the common law in Canada (except for offences created by it) and that includes the assurance that a man's home is his castle. The Court, quoting from the Report of the Canadian Committee on Corrections ( 1969) , held that a police officer has the right to enter premises including a dwelling house, by force if necessary, without a warrant, to prevent the commission of an of fence which would cause immediate and serious injury to any person, if he on reasonable and probable grounds believes that such an offence is about to be committed; or to effect the arrest of a person who has been found committing a serious crime and who is freshly pursued and who seeks refuge in such premises. Although anyone has an "implied licence" to go to a door to ask if he may be admitted "to conduct his lawful business", he (safe a police officer for reasons given above) can only enter with permission of the occupier. In this case the officer never asked to be admitted; the offence the officer had grounds to believe the accused committed., had, when he entered the home, already been committed. None of the reasons for which the officer could enter without a warrant existed. Although he had followed the accused, there was no fresh pursuit and there was nothing that could be - 23 - considered expressed or implied consent on the part of the occupier of the home for him to enter. Appeal dismissed Acquittal upheld. On the surface at least, this decision seems to differ from a finding by the Supreme Court of Canada when it dealt with a B. C. case in 1974. The apparent distinction between that B. C. case and this "Landry" decision by the Ontario Court of Appeal is that, in the latter the issue was whether the officer was in the lawful performance of his duty as a prerequistte to determine if Landry obstructed the officer; in the former, to determine if the officers were civilly liable for damages for trespass. In both cases, the Courts had to decide on the right of the officers to enter a private home to effect an arrest outside of circumstances which, according to the Report of the Canadian Committee on Correction (1969), permit officers to enter premises. One could argue that also in this, the cases are distinct, as in "Landry" the arrest was authorized but discretionary (no warrant), while in the B. C. Case affecting the arrest was obligatory in that there was a warrant in the first instance. However, reading the reasons for judgment of the B. C. Case, these distinctions seem irrelevant to the issue, particularly in view of the Courts comments in its summation. The following is a synopsis of the reasons for judgment by the B. of Appeal in Eccles v. Bourque et al 19 c.c.c. (2d) 129 (1974): c. Court Bourque and two others were police officers looking for a man for whom there were three warrants outstanding in Montreal for indictable of fences. (The officers did not have the warrants in their possession). The officers received information that this man was staying at a certain address. They attended at this address and answering their knocking, the occupant of the home opened the door slightly. One officer showed his identification and the officers pushed their way into the home. They searched the place in spite of the objections of the occupant, but were unsuccessful in finding the wanted man. The occupant (Eccles) sued the officers for damages for trespass, and the B. C. Supreme Court found for Mr. Eccles. The B. c. Court of Appeal reversed this decision (14 c.c.c. (2d) 279) and Eccles took his plight to the Supreme Court of Canada. This Court arrived at its decision by reviewing the officer's authority to do what they did, by exploring section 450 of the Criminal Code and the applicable collll{lon law. Firstly the Supreme Court held that in the - 24 - circumstances the officers had reasonable and probable grounds to believe the wanted man had committed an indictable offence and had they found him in the home they searched or elsewhere, they would have had the authority to arrest him. The Crown had submitted that if the officers were authorized to effect the arrest, they were, by virtue of section 25 of the Criminal Code authorized to commit the trespass. After all, the section provides that if someone is authorized to do something by law, then that person is also authorized "to do anything in the • • • enforcement of the law" provided it is done on "reasonable and probable grounds". The Supreme Court of Canada rejected that submission saying that section 25 c.c. "does not have such aplitude". The question in this case "is whether the officers were required or authorized by law to commit a trespass; and not • • • whether they were required or authorized to make an arrest". The statutes are silent on that issue and therefore the authority for them to commit the trespass if it exists, must be found in the common law. Although it was held in 1604* as well as in Biblical times, that a man's home is his castle and fortress for his defence against injury and violence, there is on the other hand a principle which the Supreme Court of Canada cited as follows: "But there are occasions when the interest of a private individual in the security of his house must yield to the public interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of his friends". That same case states that the "King's men" may break the party's house "either to arrest him, or to do other execution of the King's process". However, before any breaking takes place the authority must "signify the cause of his coming" and request the door to be opened. The Supreme Court of Canada further said: ••Entry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry". The Court observed that the fact of the fugitive not being there did not take away from the reasonable and probable grounds the officers had and consequently it did neither take away from their rights to search the premises in the circumstances. (The wanted man had been checked in the company of the householder; he had given the address as the place where he lived; was seen entering and leaving the building and had been seen entering just prior to the search). * Semayne's case, 5 Co. Rep. 19a, 77 E.R. 194. - 25 - In addition to this judgment the Court made an announcement regarding a peace officer entering a private property: "In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers, and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or i f in hot pursuit notice may not be required". Note: This was the Supreme Court of Canada's view in 1974. Having granted leave to appeal the acquittal of Landry, the Court will have an opportunity to either change its mind or reiterate the above. Perhaps aspects of the Charter of Rights and Freedoms will be argued and this may cause changes. In December of 1980* the Court said that their decision in this case stood unaltered. **** * * R. v. Colet (see page 18 of Issues of Interest, Volume 1) - 26 - DRIVING WITHOUT DUE CARE ARD AT'rEHTIOR The Queen and Lower April 16, 1982 County Court of Vancouver Registry No. CC811186 The accused followed a motor cycle in her car at a safe distance and speed. Due to the open ventilation system of the car, dust created an inconvenience and she tried to adjust the vent to reduce or get rid of the nuisance. On account of this distraction she noticed too late that the motor cycle stopped to allow someone to cross the street and a collision occurred. The accused was convicted of driving without due care and attention and appealed claiming a total lack of intent. Based on case law, the County Court Judge held that criminal negligence and dangerous driving under the Criminal Code have mens rea as a necessary element. That is to say, that the act of driving in that manner must be advertent (heedful). However, for the careless driving offence created under the provincial statutes, showing inadvertance is not necessarily a defence; no element of mens rea is necessary, or "negligence deservant of punishment". Accused appeal dismissed. Conviction upheld. ***** - 27 - MANSLAUGHTER. BY LEAVING All UliGUAKDED EXCAVATION OH LARD The Queen v. The Aldergrove Competition Motorcycle Association and Levy County Court of Westminster Registry No. XBl-6370 February 8, 1982 The accused association dug a substantial water hole to reduce other bodies of water on its land. The Levy supervised the excavating and was the president of the association. Levy and the association were charged jointly with manslaughter when three children drowned in the hole. The land, used for motorcycle competitions, bad a one-half meter fence around it and the reservoir was, according to the accused, marked with "metal drums with string and rope" so as to prevent people from approaching it. Four boys, ranging in ages from 8 to 11, reached the excavation by getting through or over two fences • One was already down and the other (the accused's one-half meter high fence) was pushed down by them. In any event, the boys bad no difficulty in getting to the edge of the waterfilled 8 foot deep hole. They passed their time by throwing rocks at a piece of lumber that was floating on the water. The bank gave way and one boy fell in the water. Another tried to rescue him but also ended up in the water as did the third who attempted to get the other two back on to the bank. The oldest boy did also fall in when he tried to help his friends but managed to get out again. The others were not so fortunate and lost their lives by drowning. In spite of the fact that these unfortunate deaths were accidents and that the children were trespassers, the Criminal Code of Canada holds the owner or person in charge of land criminally liable in circumstances like these. Section 242 in essence states that anyone who leaves an opening in ice that is open to and frequented by the public, and any owner or person in charge of land who leaves an excavation on that land, is under "a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists". A violation of this legal duty (whether or not there are any consequences from not performing the legal duty) is a summary conviction offence. Bodily harm resulting from not performing this legal duty amounts to assault causing bodily harm. However, if death results, the person who failed to perform the legal duty is guilty of manslaughter. The Supreme Court Justice who tried the accused of alleged manslaughter said that there were three reasons why the Parliament created this apparent - 28 - harsh law. Firstly, to create a statutory duty to guard excavations, secondly to remove all doubts that failure to so guard supports a conviction of manslaughter (in other words remove that decision from the judiciary) and thirdly, to make the issue distinct from criminal neglicence. To convict under section 242 the Crown does not have to show that there was a wanton and reckless disregard for the lives or safety of others in anitting to perform the duty of guarding the excavation. To convict as the charge was laid in this case, the Crown must prove the four elements of this charge: 1. 2. 3. 4. that there was an excavation (man made cavity or hollow); that the accused is the person under a legal duty to guard the excavation; that there was a failure to perform that duty; and that that failure caused the death of a person. The Court also held that to determine the adequacy of the guarding to satisfy the duty imposed by law, all circumstances must be considered. The Therefore the word "guard" as used in the section includes "protect". Court must examine the location of the excavation and the community in which it is located to determine the adequacy of barriers or whatever means is used to prevent the falling in by accident. The land on which the children drowned was in a thinly populated rural area. Other children lived within walking distance and commonly played in the adjacent field. Furthermore, the motorcycle track and the water hole had a natural allurement for children. The Court found that children trespassing on the land "ought to have been foreseen". The guards placed around the excavation were inadequate and the physical barriers only presented "a minimal obstacle to children". The Court concluded that the accused clearly breached their duty to "guard and prevent" and it was that breach that "permitted the children to approach too close to the excavation and to fall prey to the soft sides and the deep water". Accused found guilty as charged. ***** - 29 - DEFENCE OF liECESSITY AND DISTJlESS REBUTTAL EVIDKHCK - IS KARllHJAHA HONOTYPIC OK POLYTYPICf Regina v. Perka et. al. B. C. Court of Appeal CA820110 July 23, 1982 A motor vessel called the "Samarkanda" landed in "No Name Bay" just north of Tofino, B. C. with 33.5 tons of marihuana from Columbia. The 23 accused were on the ship and another vessel which met her and guided her into the bay. All were jointly charged with importing a narcotic and possession for the purpose of trafficking. In their defence the accused adduced evidence of mechanical pro_blems and weather conditions which caused "an urgent situation of clear and imminent peril" which forced the crew to seek haven in Canadian territorial waters. This, the defence claimed, made the defence of necessity and distress available. The Crown applied to rebut the defence evidence of mechanical defect and was prepared to call the armed forces personnel who sailed the seized ship to Victoria. They apparently had no problems star.t ing the engine or running the ship along the open waters on the west side of Vancouver Island. The trial Judge had not allowed the application and held that the Crown wanted to "split" its case. This means that the Crown wished to prove its case before and after the defence evidence. It was held by the trial judge that the prosecutor should not have been caught by surprise in regards to the evidence of malfunctioning engines. The defence of necessity had occurred to him (the judge) before the Crown closed its case and the evidence of the armed forces personnel's experience with the vessel should have been adduced then (before the Crown closing its case). The jury received instructions to acquit the accused as the defence of necessity was available to them. The jury complied and the Crown appealed. The B. c. Court of Appeal disagreed with the trial judge on the issue of rebuttal evidence. It held that the Crown had not split its case. Said the unanimous Court: "As I understand the way the trial proceeded the Crown could not reasonably have been expected to anticipate the evidence which the respondents (accused) might call in support of the defence of necessity. Even i f the Crown knew something of the defence which would be advanced, it could not reasonably have been expected to know the extent of ~he evidence to be called in support of it". - 30 The Court added that the evidence the Crown had to call to rebut the defence evidence to substantiate necessity was irrelevant to what the Crown had to prove as part of its case. The Court, in support of their opinion, quoted from a precedent they set in 1977* saying that when considering an application for rebuttal evidence it must be expected that counsel are "ordinary, competent counsel instructed by ordinary clients (solicitors, police or individuals) and engaged in the usual way in the practice of their profession". In other words, Crown counsel does not have to anticipate every conceivable defence the accused may raise and negate this in advance. To avoid standing trial again, the accused argued that the trial judge had failed to instruct the jury on the "botanical defence" they had raised. The indictment had accused them of importing and possessing "cannabis". The accused had called evidence to show that there are three species of marihuana (in other words cannibis is polytypic) and the Crown had not proved which of these the accused imported and possessed. The Narcotic Control Act defines marihuana to mean "Cannabis sativa L"; hence to be convicted the Crown must prove that the marihuana the accused had on board was of that kind. Lack of proof that the cannabis was "Sativa L" entitled them to an acquittal the accused argued. The B. C. Court of Appeal held that when the Narcotic Control Act was enacted the botanical taxonomists were of the opinion that Cannabis sativa L covered all cannabis (monotypic). (It is only recently that some are of the opinion that plant is polytypic). Therefore Parliamant intended to cover all cannabis when it made the laws the accused allegedly violated. Their arguments were therefore rejected. The accused then submitted that the defence of distress should have been left with the jury. The B. C. Court of Appeal disagreed with that also and said "I think t he facts of this case support the conclusion that there is a merging of the defences of necessity and distress". If the accused claimed that weather and engine failure necessitated them to seek protection in Canadian waters, then the defence of distress melds with the defence of necessity. Whether or not this was the case remains to be seen when the evidence of the armed forces personnel has been heard regarding the condition of the vessel. Because the jury might well have reached a different conclusion had the members heard the rebuttal evidence, a new trial was ordered. ***** * R. v. Combo (1977) 35 c.c.c. (2d) 85 - 31 - MIXDIG CIVIL ARD auKINAL LAW ABUSE OF THE PROCESS OF THE COUR.T Regina v. Sparks 65 C.C.C. (2d) 476 Ontario County Court Someone else's $600 deposit ended, due to a bank error, in the accused's account which registered $10 to his credit. The accused withdrew the $610 a few days after this windfall error in his favor and eventually found himself charged with theft. The evidence revealed that the bank had tried for a period of 8 months to collect by means of phone calls and registered letters demanding return of the $600 within 10 days. The accused's failure to comply led to the bank reporting the matter to the police at the end of that 8 months period. At his trial the judge found that the accused committed the crime of theft. The accused however, argued that the criminal proceedings against him were an abuse of the process of the Court as the bank had initially considered the matter only civil in nature and now used the criminal process to remedy this dispute between them and the accused. Civil proceedings are to resolve disputes between individuals while criminal proceedings are designed to do so between an individual and the state i f an offence has allegedly been coDIIJlitted. For the victim of a crime to seek restitution is not an abuse of the criminal process and he can do so when the perpetrator is sentencedl or may proceed civilly against him, even simultaneously to criminal proceedings2 related to the same matter. However, to bring criminal prosecution to compel a civil claim is an abuse of the process of the Court which may result in a judicially imposed stay of proceedings. The Courts have held that in some circumstances, making a deal in lieu of criminal proceedings being coDIIJlenced may well amount to compounding a felony. The bank frankly admitted that had the accused returned the money, then in spite of the theft, they would not have initiated criminal proceedings. In addition, it follows that if one can afford to pay the civil context of a dispute like this you can avoid criminal proceedings against you. The bank's objective was to collect and not to deal with a person who offended society's law. Proceedings against the accused were ordered stayed. ***** 1 Section 653 Criminal Code 2 Section 10 Criminal Code and British Acceptance Corporation Ltd. v. Belzberg (1962) 36 D.L.R. (2d) 587. - 32 - THE DEFENCE OF ENTRAPMENT R. v. Rippley 65 C.C.C. {2d) 158 Nova Scotia District Court Courts of Appeal in Canada have never recognized the defence of entrapment. However, some of those courts and the Supreme Court of Canada have defined it. In Nova Scotia some trial Courts have recognized the defence of entrapment* and the Court either stayed the proceedings to prevent an abuse of the process of the Court or registered an acquittal. In some Canadian cases the defence was considered but no acquittals resulted as the facts failed to support the defence. Merely soliciting a person to commit an offence or giving him the opportunity to commit it is not entrapment provided the accused had a predisposition to the crime. Entrapment has been defined as: "a police concocted plan to ensnare the accused going beyond mere solicitation". • • • " calculated inveigling or persistent importuning". In this case an undercover officer encountered the 18 year old accused smoking a joint on the street. tpe officer purchased three marijuana cigarettes from the accused for $5 - as a result of which he was charged with trafficking. The accused raised the defence of entrapment. It was found as a fact that the accused and his two companions were amateurishly experimenting with marijuana when encountered by the officer. The officer insisted they go with him in his car to find someone who had marijuana for sale. The accused indicated he wanted no part of it. Attempts to get out of the car and get dropped off were to no avail as the officer would not stop the car. Finally the accused suggested to be let off at a diner where he offered to attempt to get the officer the "joints" he wanted. The accused asked for and found someone in the diner who sold him three joints which he sold again to the officer without profit. The only reason that he did so, testified the accused, was to get rid of the officer who was "a pain" and to get his buddies free from him. Said the Nova Scotia County Court Judge in his reasons for judgment: "I am prepared to accept his {the accused's) contention that he was merely trying to get rid of an individual who had attached himself to the accused and his friend and that he regarded his actions solely from the point of view of relieving himself from what had become an embarrassing situation". In view of the accused's inexperience, lack of being "world-wise·· to the ways of "drug pushers" the Court found there was no predisposition to the crime, that the defence of entrapment was available and the accused was acquitted. * R. v. MacDonald (1971) 15 CRNS 122 - 33 - This judgment was handed down in December of 1981 but on August 9, 1982 the Supreme Court of Canada gave reasons for judgment in Amato v. The Queen which is a B. c. case*. Amato was 'persuaded' by his employer to obtain some cocaine for a third party. He complied reluctantly. Shortly after a police informer asked Amato to purchase cocaine for him. He told the informer that he was not interested and refused to perform. However, persistent persuasion changed , Amato' s mind. The third time Amato was approached by a police undercover officer who told Amato that his clients were dangerous and would use violence i f he did not provide cocaine for them. Amato did purchase and provide the cocaine as ordered, and was charged with trafficking in regards to the second and last transaction. He claimed to have been entrapped, but his defence was rejected. The trial judge, as well as the B. c•. Court of Appeal, held that there had been no more than "persistent solicitation". Amato appealed to the Supreme Court of Canada, which made a majority decision (5 concurring and 4 dissenting): that a crime committed at the 'solicitation' of an agent provocateur does not, standing alone, support a defence of entrapment". The kernel of the majority judgement is contained in the following statement by the five Justices of the Supreme Court of Canada: "In my view, it is only where police tactics are such as to leave no room for the formation of independent criminal intent by the accused that the question of entrapment can enter into the determination of his guilt or innocence". What is significant about this case is that the Supreme Court of Canada did not say that in Canada the defence of entrapment does not exist or is not recognized. It has, in the past defined entrapment and now has indicated that the actions of the authority by which they "actively organized a scheme of ensnarement, of entrapment, in order to prosecute the person so caught" must be such that it "leaves no room for the entrapped person to form a criminal intent. * * * * * * See page 34 of Issues of Interest Volume 1. - 34 - Tm BITS Nudity The accused performed three dances in a restaurant/tavern before an audience of approximately 120 persons, the great majority of which were male "blue collar workers". Although she revealed a great deal of herself in the first two dances, the last one was performed bottomless. The crowd yelled, cheered, and had a good time and there was no evidence that anyone left during the performance. The Provincial Court Judge held that the performance was contrary to the standard of public decency and conv;icted the accused for being nude in a public place. Upon appeal the Ontario High Court of Justice observed that the trial judge bad found that the performance was not done in an immoral manner. This coupled with evidence supporting that the accused's performance "did not offend public decency and was tolerated in the milieu in which it occurred "caused the Justice to conclude that the average adult in the community would not object to the performance at the time and place where it was staged". The accused was found not guilty. (R. v. Gray 65 c.c.c. (2d) 353) ***** Cultivating Marihuana Police raided the accused's home and found marihuaua plants hanging from the ceiling to be dried. They had been there approximately 3 weeks according to the accused who was charged that he, on the date of the raid, was cultivating marihuana. In addition, police found the necessary items to grow marihuaua and literature on bow to do this. The trial judge acquitted the accused holding that what the police found the accused doing was processing the plants after harvest. Drying and curing of the plants is not included in cultivating them. The Crown appealed unsuccessfully to the Ontario Court of Appeal which agreed with the views of the trial judge and upheld the acquittal. R. v. Gaurreau 65 C.C.C. (2d) 316 ***** - 35 - Failing to Assist Police in Execution of Duty After a chase by car and then on foot, a police officer arrested a young man for dangerous driving. The officer struggled with his prisoner and was unable to get him back to the police car. the prisoner's father arrived at the scene and the officer told the father to assist him to get the young man to the car. The father told his son to go with the officer to get the matter cleared up. When the young man failed to comply the officer repeated his demand for assistance to which the father replied, "No way". This resulted in a charge against the father of failure to assist a peace officer in the execution of his duty of which he was convicted. Upon appeal, the Alberta Court of Queen's Bench had to determine if the verbal assistance the father gave was adequate to hold he had complied. with the law (section 118(b) c.c.). The Court held that when the verbal assistance failed it was incumbent on the father to assist the officer physically. If this was not so the Court said, then Parliament would have considered it adequate for someone who is requested to assist a peace officer . who is being assaulted, to say "Stop it" and blissfully walk away. Even if the father had been afraid of his son, that would have afforded him no excuse. Conviction was upheld. R. v. Foster 65 c.c.c. (2d) 388. ***** Theft of Marijuana The accused was found to have broken into a home and to have stolen $385 worth of marijuana. He was aquitted of a break, enter and theft charge because the trial judge was of the opinion that you can only commit theft of something the victim legally owns. Upon appeal, the Nova Scotia Supreme Court held that though the accused held the marijuana in defiance of the law, he did have a special property or interest in it. The Court reiterated that it is immaterial for the purpose of theft whether the victim had any right to the the property stolen. One thief can even steal stolen goods from another. The accused was found guilty. R. v. Grassex 64 c.c.c. (2d} 520 ***** - 36 - Section 236(1) and 236.1 of the Criminal Code provides for mandatory jail sentences for second and subsequent drinking/driving offences; prison terms not less of fourteen days for the former and at least three months for each of the latter. A Mr. Skolnick was convicted of impaired driving and refusing to give a breath sample in 1976. The two charges arose from one incident of driving and were tried simultaneously. In 1979 Mr. Skolnick was convicted of "over .08%", and the trial judge considered this the third drinking/driving offence and felt obliged by law to sentence him to at least three months in gaol. This issue reached the Supreme Court of Canada which held that the last conviction was, for the purpose of sentencing, the accused's second offence. It held unanimously that where two offences are tied together by arising from the same incident and are tried together, then if convictions flow from them, they are, for the purpose of laws dictating severer penalties for second and subsequent offences, to be treated as one conviction. If that was not so, Mr. Skolnick should have received a jail sentence for the "refusing" in 1976. After all, that was his second drinking/driving offence, the first one being the impaired driving. (The queen v. Skolnick Supreme Court of Canada July 22, 1982) **** * A police officer issued the accused an appearance notice for "hit and run", impaired driving and refusing to give a sample of breath. Although the notice told the accused when to appear it did not tell him where, and the failed to show. He was struck from the Court list and the Justice of the Peace issued a summons. The accused appeared in compliance with the summons but protested the validity of the process followed, and he claimed the Court had lost jurisdiction over the information. The B. C. Supreme Court decided on this issue and found that the information· alleging the offences was received under section 455.4 c.c. and that the appearance notice had been properly confirmed. However, when the accused failed to appear the only process open to the Justice of the Peace was to issue a warrant in compliance with section 456.1(2)(b) c.c., but not a summons. Therefore, by failing to do as the law dictates, the information, became a nullity and the Provincial Court had no longer jurisdiction over it. (Mark Mitchell Kennedy's application for an order of prohibition. Supreme Court. Penticton 125/K/82. June 10, 1982). Note: If the Court, due to a procedural error, would jurisdiction over the accused only, the accused's woul~ have revived that jurisdiction. * **** B. c. have lost appearance