POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

IN MEMORIAL
On January 21, 2003,
52-year-old
Ontario
Conservation
Officer
Walter
Ceolin
was
working as a member of
a crew conducting aerial
moose surveys in a
remote Ontario location
when their helicopter encountered mechanical
difficulties. The pilot attempted to make an
emergency landing, however the helicopter rolled
over and crashed into the bush a short distance
from a railroad siding.
Loggers working nearby witnessed the accident
and were on the scene almost immediately, but
there were no survivors. Also killed in the crash
were two Resource Management technicians,
Bruce Stubbs (39) and Chantelle Walkey (27), and
the chief helicopter pilot Michael Maguire (50);
all were from the Ontario Ministry of Resources.
Officer Ceolin had come in to work on his day off
to fly that day. He had 25+ years with the
Ontario Ministry of Resources and is survived by
his companion and a son.
The above information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/canada

POLICE FRIEND NOT A
LAWYER: RIGHT TO COUNSEL
RESPECTED
R. v. Webber, 2002 BCCA 692
As a result of being stopped at a
roadside check, the accused was
required to provide a breath
sample and was advised of his

Volume 3 Issue 2
February/March 2003

right to a lawyer. He requested to speak to his
friend, a police sergeant. The officer attempted
to persuade him to try and call a lawyer, but the
accused would only blow if he could call his
sergeant friend. The officer declined to facilitate
the call and the accused was charged and
convicted of refusing to provide a breath sample.
The accused appealed to the British Columbia
Court of Appeal arguing his right to counsel
protected under s.10(b) of the Charter had been
violated when the police failed to provide him with
a reasonable opportunity to consult counsel. He
suggested they did not facilitate his request in
obtaining the legal advice he wanted before they
accepted his refusal. This, he contended,
afforded a reasonable excuse not to provide a
breath sample and he should have been acquitted.
In dismissing the appeal, Justice Huddart for
British Columbia’s top court concluded that the
sergeant friend was not a lawyer and consequently
there was no need for the officer to permit the
contact the accused sought.
Complete case available at www.courts.gov.bc.ca

ACCUSED NOT RESPONSIBLE
FOR TOW BILL
R. v. Wellington, 2003 ABQB 12
An Alberta Court of Queen’s
Bench justice ruled that a tow
company has no right to collect an
outstanding storage bill from an
accused after his vehicle was seized by police and
stored at a private compound. The vehicle was
seized on the basis that it was purchased with
funds fraudulently obtained from a bank. The
accused had plead guilty to the fraud and his
motor home was eventually returned to him. At
the sentencing hearing, the prosecutor asked the

judge to order that the accused pay $11,497 in
compensation to the tow company for the
outstanding storage bill. The accused argued that
the police seized the motor home and they should
pay the cost of storage.
In dismissing the claim for compensation, Justice
Sanderman concluded the tow company would have
to seek relief elsewhere, such as a civil claim
against the police or otherwise negotiate a
settlement. The police department entered into a
private contract with the tow company for the
storage of the motor home and the accused was
not a party to that contract. Furthermore, there
were no Criminal Code provisions that would
permit the relief the tow company was seeking.
For example, the requirements of s.489.1 (1) were
ignored. Therefore, the accused was not
responsible for the bill.
Complete case available at www.albertacourts.ab.ca

WARRANTLESS VEHICLE
SEARCH VALID AS AN
INCIDENT TO ARREST
R. v. Power,
[2002] No. 1302A-00513 (NfldPC)

Charter on the basis that the arrest was unlawful
and the warrantless vehicle search that followed
was unreasonable. He argued that an arrest based
solely on the odour of marihuana was improper
because the “olfactory observation” alone could
not provide reasonable grounds.

The Arrest
A warrantless arrest under s.495 of the Criminal
Code requires that the arresting officer possess
the requisite reasonable grounds. This imports a
subjective belief (the officer’s perspective)
justified from objective criteria based on the
circumstances, including an officer’s training and
experience. In finding the arrest lawful, Justice
Gorman of the Newfoundland and Labrador
Provincial Court stated:
In this case, I conclude that a reasonable person
placed in the position of [the officer] would have
concluded that reasonable and probable grounds
existed for [the accused] to be arrested. If [the
officer] had failed to do so after smelling what he
genuinely believed to be freshly burnt marihuana, he
would have been seriously derelict in his duties and
in his obligation to investigate possible breaches of
the law.

The Search

The accused was observed by a
police officer pulling a trailer
without any lights, an offence
under highway traffic legislation.
After stopping the vehicle, the officer smelled a
fairly strong, fresh odour of marihuana coming
from it. He concluded the marihuana had been
recently smoked and arrested the accused for
possession of a controlled substance, advised him
of his right to counsel, and placed him in the rear
of the police cruiser. The officer then searched
the accused’s vehicle and found 2 grams of
marihuana in a “kit bag” behind the driver’s seat.
He was subsequently charged with possession of a
controlled substances.

Although a warrant is generally a precondition to a
constitutional search, there are exceptions to this
rule including warrantless searches incidental to
arrest. This search power, although requiring
reasonable grounds to make the arrest, “does not
require that the officer has reasonable grounds to
believe that the search will result in the seizure of
evidence”. However, the search must be
undertaken for a legitimate purpose connected to
the circumstances of the arrest. Valid reasons
include searching for safety or to find evidence.
In concluding that the search of the accused’s
vehicle was justified as an incident to arrest,
Justice Gorman stated:

In a pre-trial application the accused sought to
have the evidence excluded under s.24(2) of the

In this case, [the officer’s] search of the vehicle
was conducted for a valid reason which was
connected to the arrest. He was searching for

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2

evidence connected directly to the reason for the
arrest. It must be recalled that [the accused] was
arrested because of the officer’s belief that he had
possession of a prohibited substance. This is not for
instance, a case in which a search for drugs
occurred in relation to an arrest for an unrelated
matter…The search was not conducted in an abusive
fashion nor was the purpose of the search related
to any improper motives.

The evidence was untainted and could be used at
trial.
Complete case available at www.canlii.org

HIGHWAY SAFETY INCLUDES
QUESTIONING ABOUT
ALCOHOL CONSUMPTION
R. v. Peterson, 2002 SKQB 489
The police stopped the accused
to determine if he was licensed,
his vehicle was registered, and
to check his sobriety. He
produced his licence and vehicle registration on
request. A passenger was also observed trying to
hide a bottle of beer under his foot. When asked,
the accused acknowledged he had been drinking.
The officer made a roadside screening device
demand and the accused failed. He was arrested,
read his right to counsel and police warning, and
given the breathalyzer demand. He subsequently
provided breath samples over the legal limit.
He was convicted at trial, but appealed to the
Saskatchewan Court of Queen’s Bench arguing
that the certificate of breath analysis was
inadmissible under s.24(2) of the Charter because
it was the product of an arbitrary detention
contrary to s.9. He suggested that the officer
was initially entitled to stop him under
Saskatchewan’s motor vehicle legislation, but the
continuation of the detention became arbitrary
once he produced the requested documents. Thus,
at the time the officer asked the question about
alcohol consumption the accused was unlawfully
detained and the officer could not rely on

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Saskatchewan’s Highway Traffic Act (HTA) for
justification.
After reviewing current case law, Justice Smith
concluded that random vehicle stops pursuant to
the HTA for highway safety are arbitrary under
the Charter, but saved by s.1. Highway safety
“includes determination of the sobriety of the
driver”. This extends to requests of the driver to
perform sobriety tests as well as asking a driver
if they have consumed alcohol. The appeal was
dismissed.
Complete case available at www.canlii.org

$500 REMEDY FOR NONDISCLOSURE OF POLICE NOTES
R. v. Kelln, 2003 SKPC 1
A Saskatchewan Provincial Court
Judge awarded an accused
person $500 because the Crown
failed to provide a police
officer’s notes in a timely manner, breaching the
prosecution’s obligation of full disclosure. The
accused was charged with impaired driving and his
lawyer wrote Crown requesting disclosure. The
police report was provided, but not the officer’s
notes. During a subsequent conversation with the
Crown his lawyer asked for any police officer’s
notes, which were ultimately provided 11 months
after initial disclosure was requested.
In the Court’s ruling, Justice Snell noted that the
“Crown has an obligation to disclose all relevant
information that may be helpful to the defence,
whether inculpatory or exculpatory, in order to
ensure that the accused may make full answer and
defence, as guaranteed by section 7 of the
Charter”. Justice Snell stated:
The Crown acknowledged that in many cases the
investigating officers are the only witnesses and
therefore their notes are the only "statements"
which are available. The police report is prepared
from those notes. According to the authorities the
notes are considered part of the Crown file and

3

are subject to disclosure whether the police have
provided them to the prosecutor or not.

The Crown argued that the notes need only be
disclosed if the defence asks for them. In
rejecting this submission, the Court held:
In my view the practice of the Regina Prosecution
Office of failing to provide police officers' notes
upon receipt of an initial request for disclosure and
requiring the defence to subsequently request
such notes specifically constitutes a failure to
comply with its disclosure obligations. The Crown
agreed that the notes are relevant and would be of
assistance in making full answer and defence.
Accordingly, in order to fulfill its obligation to
provide full disclosure the Crown should be
obtaining those notes from the police with the
police report as a matter of routine, so that they
can be provided to the defence in all cases where a
request is made for disclosure.

As a result of his s.7 Charter breach, the accused
requested a judicial stay of proceedings as an
appropriate remedy under s.24(1). Justice Snell
found a stay would be too extreme under the
circumstances but awarded the accused $500
because of the extra expense suffered when he
had to make additional court appearances to deal
with the Crown’s breach of disclosure.
Complete case available at www.canlii.org

DESTRUCTION OF EVIDENCE
DOES NOT WARRANT STAY
R. v. Larsen, 2003 BCCA 18
In 1978, the partially nude body
of a 16-year-old deceased
female was found after she had
disappeared from a party held in
a farmer’s field. She had a clump of human hairs
in her hand and semen in her mouth, larynx, and
on her sweater. At the time, an expert in hair and
fibre analysis concluded the hairs were
inconsistent with belonging to either the victim or
the accused. Twenty years later with the
emergence of DNA testing as a reliable
investigative tool, the police re-examined the
homicide. They obtained DNA samples of men who

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February/March 2003

had attended the party. The semen was found to
match the accused’s DNA, but the hairs found in
the victim’s hand had already been destroyed
because the police had concluded they were of no
value as evidence at this time; there was no
scientific
methods
of
proving
positive
identification. The accused was charged with
murder.
At his trial the accused argued that he had
consentual sex with the victim before her death
and she must have died from accidentally choking
on his semen or was strangled by another unknown
person(s). He further submitted that the
destruction of the hair denied him the
opportunity to prove his innocence. The hairs may
have provided DNA evidence exonerating him and
he was therefore denied his Charter right under
s.7 to make full answer and defence as well as his
right to a fair trial under s.11(d). As a remedy
under s.24(1) of the Charter he asked for a
judicial stay of proceedings or, at minimum, a
specific direction that the hairs found in the
victim’s hand were neither his nor the victim’s.
The trial judge refused both requests. First, he
concluded that the destruction of the hairs was
not malevolent. It was made out of an honest and
reasonable belief that they were worthless as
evidence and the police did not deliberately
attempt to undermine the accused’s defence or
the trial fairness. Secondly, although a DNA
analysis of the hairs might have assisted the
accused, it was just as likely the results may have
been neutral or adverse to him. Any prejudice to
the accused making full answer and defence could
be mitigated by considering the frailties in the
investigation when weighing the reliability of the
evidence or by the accused calling the expert who
initially examined the hairs. Finally, the trial
judge held that directing himself that the missing
hairs were neither the accused’s nor the victim’s
was treading into the area of evidentiary weight,
as opposed to admissibility. He was not prepared
to accede to this request because it was not his
role to make the most favourable finding for the
accused to the exclusion of all other possibilities.

4

The accused appealed his conviction for firstdegree murder to the British Columbia Court of
Appeal arguing, among other grounds, that the
trial judge erred in failing to grant a remedy for
the police destruction of the hairs. In rejecting
this ground of appeal, Justice Smith writing for
the Court stated:
The Crown’s duty to disclose all relevant material
in its possession or control to the defence is
imposed because an accused has a right to make
full answer and defence, which is one of the
principles of fundamental justice guaranteed by s.
7 of the Charter…. The duty includes a duty to
preserve relevant evidence. Nevertheless, when
evidence is lost or destroyed, there is no breach of
the s. 7 disclosure obligations if the Crown
satisfies the trial judge that the loss or
destruction was not due to unacceptable
negligence. Whether there has been unacceptable
negligence is a factual inquiry that depends upon
the degree of relevance of the evidence and the
reasonableness of the police conduct that resulted
in its destruction or loss. Moreover, even where
the Crown has satisfactorily explained the loss of
evidence, in the extraordinary case where the loss
is so prejudicial to the accused that it impairs his
right to a fair trial, a judicial stay of proceedings
may be granted. However, in such extraordinary
cases, the accused must demonstrate actual
prejudice to his fair trial right. (emphasis added,
references omitted)

The trial judge had properly considered in his
Charter analysis whether the prejudice to the
accused’s defence was irreparably damaged or
could otherwise be remedied. Furthermore, the
British Columbia Court of Appeal agreed that the
self-direction concerning the origin of the hairs
was not appropriate in the circumstances. The
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“People may not remember what you did, or what
you said, but they will always remember how you
made them feel”. Author unknown

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February/March 2003

CLASS 89 GRADUATES
The Police Academy is pleased to
announce the successful graduation
of recruit Class 89 as qualified
municipal constables on February 7,
2003.
ABBOTSFORD
Cst. Martin Ellis-White
Cst. Shaun Nagel
Cst. Ian Uhryn

DELTA
Cst. Dennis Mah

NEW WESTMINSTER
Cst. John Grantham

VANCOUVER
Cst. Derek Cain
Cst. Jeffrey Campbell
Cst. Helder Confeiteiro
Cst. Andrew Copus
Cst. Kathy Crowther
Cst. Calvin Davis
Cst. Calvin Ewer
Cst. Martin Formanek
Cst. Adam King
Cst. Justin Leung
Cst. Rebecca Matson
Cst. Dirk Odendaal
Cst. Gregory Paxton
Cst. Gerald Proctor

Congratulations to Cst. Ian Uhryn
(Abbotsford), who was the recipient
of the British Columbia Association
of Chiefs of Police Shield of Merit
for
best
all
around
recruit
performance in basic training. Cst. Gerald Proctor
(Vancouver) received the Abbotsford Police
Association
Oliver
Thomson
Trophy
for
outstanding physical fitness. Cst. Rebecca Matson
(Vancouver) received the Vancouver Police Union
Excellence in Academics award for best academic
test results in all disciplines. Cst. Adam King
(Vancouver) received the British Columbia
Federation of Police Officers Valedictorian award
for being selected by his peers to represent his
class at the graduation ceremony. Cst. Calvin Ewer
(Vancouver) was the recipient of the Abbotsford
Police Recruit Marksmanship award for highest
qualification score during Block 3 training (50/50).
Mr. Phil Crosby Jones, former Police Academy
Director and current Director of the British
Columbia Special Olympics Law Enforcement Torch
Run, was the keynote speaker at the ceremony.

5

NO CHARTER BREACH
RESULTING FROM IN HOME
ARREST
R. v. Petri, 2003 MBCA 1
Police officers responded to a
citizen’s 911 call of a vehicle
being driven erratically. The
caller was able to provide a
detailed vehicle description including a licence
plate number, but was unable to describe the
driver. Two officers attended the registered
owner’s address and found a vehicle matching the
description parked in the driveway. The officers
walked onto the driveway and touched the warm
hood of the vehicle suggesting it had been driven
recently. They proceeded to the primary entrance
of the residence and knocked on the door. The
accused, dressed in his nightclothes, answered
the door, confirmed he was the registered owner
of the truck, and stepped back allowing the police
to step inside.
While speaking to the accused the police
observed symptoms of impairment including blood
shot eyes, a strong odour of liquor, leaning against
the wall for support, and stumbling on one of the
stairs. An officer formed the opinion the accused
was impaired and asked him if he had been the
operator of the vehicle. The accused responded
that he had and was then arrested. He was
permitted to get dressed while accompanied by
the officers and was transported to the police
station for breathalyser samples, which were over
the legal limit.
At trial1, Manitoba Provincial Court Justice Harvie
concluded the initial police entry onto the
property was proper under the implied licence
doctrine because they entered onto the property
for the purpose of communicating with the
occupant(s), not for the purpose of securing
evidence against the homeowner. At the time the
police knocked on the door they did not know the
1

See R. v. Petri, (2001) 22 M.V.R. (4th) 108 (ManProvCt)

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identity of the driver nor whether alcohol was
even involved. She found that “while the officers
acknowledged that the driver’s actions were
consistent with that of an impaired driver, there
were a number of other rational explanations for
the manner of driving observed”.
However, the trial judge found that the police
violated the accused’s s.8 rights when they made
their warrantless entry into the dwelling house
“without invitation or real consent”. She did not
think “that it is acceptable or sufficient for the
police to rely upon an ‘implied consent’ to enter a
dwelling house”. Furthermore, they arrested him
inside his home without a specialized warrant as
required by R. v. Feeney, [1997] 2 S.C.R. 13. As a
result of the s.8 Charter breach, Justice Harvie
excluded the breathalyser readings under s.24(2).
The Crown appealed directly to the Manitoba
Court of Appeal under s.830 of the Criminal Code
arguing, in part, that the trial judge erred in
finding that the police violated the accused’s s.8
rights when they entered his home and arrested
him without the appropriate warrant. Justice
Kroft, writing for the unanimous Manitoba Court
of Appeal agreed with Justice Harvie that the
initial police entry onto the property and up to
the door to knock was proper and did not exceed
the common law implied licence rule. He stated:
I begin my substantive comments by emphasizing
the limited amount of information that the two
officers had when they first arrived at the
address of the registered owner. They had no
description whatsoever of the person who had
been driving the truck; did not know if the house
was the driver's home; and had no idea whether
the erratic driver was the truck owner, a family
member
or
an
unrelated
third
person.
Furthermore, they had no way of knowing if the
driver was even in the house and did not know
anything about his state of sobriety. They were in
fact just beginning the investigation of a reported
offence.

With respect to the entry into the residence,
Manitoba’s top court reversed the trial judge’s
findings. In Justice Kroft’s view the lower court

6

judge erred when she concluded the police
violated the accused’s rights by entering his home
with his implicit consent and by arresting him
without a specialized entry warrant. The Appeal
Court held:
Once the officers had passed through the door
and onto the stair landing, the evaluation of their
conduct must be addressed, while keeping in mind
that they were police officers within a private
dwelling and had no warrant. We must also
recognize, however, that at this point in time, the
police had absolutely no more information about
the identity of the erratic driver than they had
when they first approached the house and the
person who met them at the door was certainly not
an accused. There was no reasonable ground on
which to charge or arrest him. What the trial
judge described as taking place inside the door was
still nothing more than part of the continuing
investigation conducted without coercion…
Once the police officers spoke to the person that
met them at the door, received his confirmation
that he had, in fact, been the driver and observed
his physical appearance and unsteady gait, they
had sufficient evidence to conclude that he had
indeed been the driver of the truck that had been
reported as driving erratically and that he was
likely impaired. He was thereupon charged and
arrested for impaired driving. He was allowed to
dress, escorted to the cruiser car and transported
to the police station for a breathalyzer test.
The evidence shows that the police respected the
accused's privacy in his dwelling by knocking on the
door and waiting for him to answer. Their tentative
entry into the interior landing followed the implicit
consent from the accused as he backed away from
the open door and talked to them.
It is true that any implied invitation may be
negated where the police enter the residence
without the express or reasonably assumed
consent of the occupant. However, there is nothing
to nullify consent in the evidence that was before
the court in this case. If the police are present for
the lawful purpose of conducting an investigation
by communicating with the occupant, they can
continue the communication unless and until the
occupant makes known that his cooperation has
been withdrawn.

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February/March 2003

In the case at bar, the accused never did change
his reaction. To the contrary, he permitted the
police officers to enter the landing and responded
to their questions with informative answers.
(references omitted)

And further:
I must repeat that when the police officers first
entered the accused's home, they were still
engaged in an open-ended investigation based on
the apparent invitation that had been given to
them. They had no grounds for an arrest
(warrantless or otherwise), and did not obtain
reasonable grounds until they had observed the
condition of the accused and until he had
voluntarily acknowledged that he had just been the
driver of the truck. Thus, the implied consent
asserted by the Crown was simply the accused's
consent for the police to enter his residence in the
course of conducting an investigation, not for the
purpose of making an arrest.
In any event, had the entire conversation occurred
outside the doorway rather than a step or two
inside, the grounds for arrest would still have
crystallized only after the accused confirmed that
he was the driver and the police had made note of
his impaired condition.
The officers could have made the arrest just as
easily outside the doorway as inside on the landing.
Thus, far from being the pivotal factual component
in this case, the entry of the police onto the
landing was quite incidental to the legal issues at
play. The ultimate arrest was justifiable as a
reasonably associated purpose arising out of the
communications between the accused and the
police in the course of an investigation conducted
pursuant to an implied invitation and without
suggestion of coercion.

Although the accused did not expressly invite the
police inside, such as asking them to “Come in”, he
did step back allowing the police to enter and
continue their investigation. This was valid implicit
consent. Justice Kroft stated:
If there was consensual entry into the dwelling of
the accused as part of the police investigation, and
if the subsequent arrest was based upon the
acknowledgment made by the accused on the

7

landing and on the obvious signs of impairment,
then R. v. Feeney has no application and there is no
issue of warrantless arrest. In our case, there was
no reasonable ground for arrest until after entry
had been granted and the investigation had been
completed.

The entry and arrest was ruled lawful.
Complete case available at www.canlii.org

EXIGENT CIRCUMSTANCES
JUSTIFY WARRANTLESS DRUG
ENTRY
R. v. Phommaviset, 2003 BCSC 81
A
police
officer
received
information from an unknown
informer that he had observed
marihuana plants and grow lights
in the basement of a house rented by the
accused. The officer believed he had reasonable
grounds and began to prepare an information to
obtain (ITO) a search warrant while three other
plainclothes officers in unmarked police cars were
sent to secure the perimeter and conduct
surveillance of the home. These officers were
unaware of the specifics of the information but
knew that the residence was the site of a
suspected marihuana grow operation. About half
an hour after their arrival the police observed
three men, including the accused, exit the house
carrying six large, full garbage bags to a van
parked in the driveway and enter it.
Believing the bags contained marihuana, the men
were arrested by police for production of a
controlled substance. The accused was searched
and a set of keys was found in his pocket.
Thinking it was prudent to clear the residence for
persons and eliminate potential threats and
prevent the loss or destruction of evidence, the
police entered using the keys. They announced
their presence and conducted a cursory search of
the residence. In the basement they observed
ballasts, transformers, capacitors, and venting
hose in a laundry room, could smell marihuana, and

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February/March 2003

found a locked room from which they could hear
the sound of fans. The police were satisfied that
no one was in the locked room and therefore did
not enter it. They exited the house and reestablished surveillance. These observations were
reported to the investigating officer who included
them in his ITO, which at the time was still
unfinished. As it turned out, the garbage bags
only contained household trash. A search warrant
was subsequently obtained and a grow operation
was found in the locked room as well as documents
in the name of the accused in the house.
During the voire dire to determine the
admissibility of evidence on charges of unlawful
production and possession for the purpose of
trafficking, the accused argued that there were
insufficient grounds to justify his arrest.
Furthermore, the warrantless search of his
residence was made to gather more incriminating
information to support the ITO the police knew
would not be enough to satisfy a justice. Finally,
he suggested that if the police were really looking
for people in the house they would have entered
the locked room to search it. Thus, he maintained
the search was not incidental to a lawful arrest,
was unreasonably conducted, and was an
infringement of his s.8 Charter rights.
On the other hand, the Crown claimed that there
were reasonable grounds to make the arrest. The
attending officers believed the investigator
preparing the ITO had reasonable grounds and
their observations of the three men carrying the
garbage bags enhanced this. Their decision to
enter the home was to protect officers at the
scene and to preserve evidence, both exigent
circumstances justifying a warrantless search
under s.11(7) of the Controlled Drugs and
Substances Act (CDSA).

Reasonable Grounds to Arrest
Although it was agreed upon at trial by both the
Crown and the accused that the information of
the unknown informant was insufficient by itself
to provide reasonable grounds, British Columbia

8

Supreme Court Justice Dillon noted an arresting
officer need only have a subjective belief that is
objectively justifiable. The test is one of
“reasonable probability”. In this case, Justice
Dillon accepted that the arresting officer’s
testimony
that
he
subjectively
believed
reasonable grounds existed. Although he did not
know the specific information provided by the
informant, the arresting officer assumed the
investigator had reasonable grounds to swear a
warrant. This, along with the three men exiting
the target residence with garbage bags the
officer concluded contained marihuana, provided
the officer’s subjective belief.
These grounds were also reasonable from an
objective point of view. In finding the arrest
proper, Justice Dillon stated:
Objective reasonable and probable grounds also
existed. Reliance can be placed on the informant’s
information in the circumstances where the
information is compelling and corroborated by
police investigation prior to arrest…. Here,
although the informant was unknown to police, the
information was compelling in that it identified a
specific street address and renter. The report of
the informant was corroborated by the
observation of the garbage bags reasonably
believed to contain marijuana.
This gave
credibility to the tip. In these circumstances, the
tip of the informer is sufficiently reliable to form
part of the reasonable and probable grounds for
arrest. Accordingly, the arrest of the accused was
lawful. (references omitted)

The Entry
Section 11(7) of the CDSA allows the police to
search a residence without a warrant if the
conditions for obtaining a warrant exist but it
would be impracticable to obtain one because of
exigent circumstances. Having already concluded
there were reasonable grounds, Justice Dillon
examined whether exigent circumstances existed.
She described such circumstances as follows:
"Exigent circumstances" exist if immediate action
is required for the safety of the police or if there
is an immediate danger of the loss, removal,

Volume 3 Issue 2
February/March 2003

destruction or disappearance of the evidence if
the search is delayed … Exigent circumstances
involve the subjective belief of the police as well
as an objective basis for the belief…. The exigent
circumstances asserted by police must be
objectively reasonable…. In R. v. McCormack [143
C.C.C. (3d) 260], exigent circumstances were
established because the police had a reasonable
basis to believe that a female seen in an
automobile was the accused’s girlfriend, that she
had access to his apartment, and that there was
evidence in the apartment that could be destroyed.
In R. v. Feeney [[1997] 2 S.C.R. 13], however,
exigent circumstances did not exist when there
was no apparent jeopardy to safety of the police
and when police had no knowledge of evidence at
the premises but only suspected or had a hunch
that evidence might be found.
In this case, there were not exigent circumstances
arising from a concern for safety of the police or
the public. Although [one of the attending
officers] testified that weapons are often found
at marijuana grow operations, he did not suggest
that he believed that weapons were present at
[the accused’s residence]. If any safety concerns
existed, the officers falling back away from the
house and maintaining a watch over the premises
could have met them. With respect to a concern
for the destruction of evidence, it was reasonable
to assume that there would be documents and
other evidence at the location based upon the
information from the informant and the
observation of the garbage bags. It was also
reasonable to assume that there could be others in
the house when there was no information on the
number of suspects, the element of surprise was
gone, and the officer had been unable to determine
that there were no others in the house. … [The
attending officer’s] expectation of documentary
evidence to link the accused or others to the
residence and to the grow operation was realistic
and not just based upon a hunch or suspicion given
all of the circumstances. There were exigent
circumstances arising from concern for the
destruction of evidence. (references omitted)

Section 11(7) of the CDSA justified the
warrantless police entry and the accused’s s.8
Charter rights were not violated.
Complete case available at www.courts.gov.bc.ca

9

BEHIND THE EIGHT BALL2:
CHARTER PROOFING YOUR
SEARCHES

as a consequence of a search or seizure directed
at another person.

Sgt. Mike Novakowski

What will constitute a “reasonable” expectation of
privacy depends on the totality of the
circumstances and fluctuates with the context7.
For example, at border crossings the reasonable
expectation of privacy is lower than otherwise
available in a wholly domestic setting8. In assessing
whether a person has a reasonable expectation of
privacy, many factors will be considered. These
include9:

Canadian jurisprudence has
recognized the underlying
purpose of s.8 is "to secure
the citizen's right to a
reasonable expectation of
privacy against government
encroachments3". This privacy guarantee may be
expressed in two ways. It can be expressed as a
freedom from 'unreasonable' search and seizure,
or alternatively, as an entitlement to a
'reasonable' expectation of privacy4.
Privacy, in the constitutional context, relates to
privacy interests of persons, not of places5. In
this sense, the privacy interest of an individual
and protection provided by s.8 is not triggered
unless the individual can establish a personal
expectation of privacy in the area intruded upon
by the state. For example, two people could be
afforded different protections by s.8 even
though they were both found in the same car
searched by police6.
The personal right to be secure from
unreasonable search or seizure may not be
asserted vicariously and a person may not rely on
the violation of a third party’s rights to benefit
themselves. A person who is aggrieved by an
unreasonable search through the introduction of
evidence obtained from the search of a third
party’s premises or property has not had their
personal s.8 right violated unless they themselves
can establish a reasonable expectation of privacy
in relation to the place searched or thing seized.
Generally, a third party may not claim prejudice
2

Webster’s New World Dictionary (1995) defines “behind the eight ball” as “in a
very unfavourable position”
3
R. v. Dyment [1988] 2 S.C.R. 417 (S.C.C.).
4
Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) at p.108.
5
See Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.), Edwards v. the
Queen (1996), 104 C.C.C. (3d) 136 (S.C.C.).
6
R. v. Belnavis [1997] 3 S.C.R. 341

Volume 3 Issue 2
February/March 2003

What is a reasonable expectation?

•
•
•
•
•

•
•

the person’s presence at the time of the
search;
possession or control of the property or place;
ownership of the property or place;
historical use of the property or item;
the ability to regulate access, including the
right to admit or exclude others from the
place;
the existence of a subjective expectation of
privacy;
the objective reasonableness of the subjective
expectation.

How far does privacy extend?
There are essentially three privacy
recognized under s.8 of the Charter10:
•
•
•

zones

personal;
spatial; and
informational.

Personal privacy zones involve the expectation of
privacy in the bodily integrity of a person. When
the search or seizure "relates to the body, rather
than the home, for example, the standard
[warranting state intrusion] is even higher than
usual11". The more serious an affront to a person’s
dignity, the greater their privacy interest.
7

R. v. Briggs (2001) Docket:C34813 (Ont.C.A.)
R. v. Simmons [1988] 2 S.C.R. 495.
R. v. Edwards (1996) 1 S.C.R. 128 (S.C.C.)
10
R. v. Dyment [1988] 2 S.C.R. 417 per La Forest.
11
R. v. Dyment [1988] 2 S.C.R. 417 per La Forest at para.35.
8
9

10

Similarly, the more invasive the search, such as a
body cavity search, the greater the assault on a
person's dignity12, thus the greater the
justification required. Personal searches may vary
in degrees of intrusiveness:
•
•
•
•

frisk or pat down;
strip or skin;
body cavity; or
bodily substance
tissue)

(biological

samples/body

A person’s reasonable expectation of privacy
relative to their person will be assessed in
context. For example, a person who has been
convicted and sentenced to a custodial term of
incarceration will expect a reduced privacy
interest in comparison to a person who is a
suspect but has not yet been charged. The inmate
is no longer presumed innocent, is subject to strip
searches, body cavity searches, and constant
supervision, and thus has a lesser expectation of
privacy than others not in that circumstance13.
Spatial, territorial, or geographical privacy
zones involve a person’s expectation of privacy in
a place or surroundings such as a home, vehicle, or
business. Like personal privacy zones, an arrest
significantly reduces the expectation of privacy
and the search of a motor vehicle, for example, is
less an affront to a person's liberty, dignity, and
bodily integrity than a minimally intrusive frisk
search authorized incidental to arrest14.
People have a reasonable expectation of privacy
within the sanctity of their dwelling house,
whether it is an apartment unit, a detached
home, or a hotel room15. The principle that "a
man's home is his castle" is a bulwark for the
protection of the individual and the sanctity of
the home affords the individual a measure of
privacy and tranquility against the state16. There
is no place where persons can have a greater
expectation of privacy than within their dwelling

house and the unauthorized presence of agents
of the state in a home is the ultimate invasion of
privacy17. This includes a reasonable expectation
of privacy in the approach to their home18. Thus,
when the object of an unreasonable search is a
dwelling house, any violation of the Charter will
be rendered all the more serious19. However,
there will be occasions where the principle of
inviolability of the home will yield to the
legitimate requirements of law enforcement.
A person may have a reasonable expectation of
privacy in a premise other than a dwelling house
such as a business. For example, the area of a
business establishment open to the public would
not be protected by s.8 of the Charter during
regular business hours. A business "that is open to
the public with an implied invitation to all members
of the public to enter has no reasonable
expectation of privacy from having a police officer
enter the area of the premises to which the public
are impliedly invited"20. However, private or nonpublic areas such as an office in the back of the
same establishment would be afforded some
protection under the Charter21.
An individual has a reasonable expectation of
privacy when driving a vehicle on a public roadway,
but this interest is lesser than one would be
afforded in their dwelling house or office22.
Operating a vehicle is a highly licensed, regulated,
and inspected activity. Vehicles operate on public
roadways, are parked and serviced in public places,
and their interiors are highly visible. However, the
driver of a vehicle, either as the owner or with the
permission of the owner to drive it, has a
reasonable expectation of privacy with respect to
the vehicle and its contents. A passenger may or
may not have a reasonable expectation of privacy

17

R. v. Silveira [1995] 2 S.C.R. 297 per Cory J. at para. 140 and 148.
R. v. Evans (1996) 104 C.C.C (3d) 23 (S.C.C.)
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.570.
20
R. v. Fitt (1995) 96 C.C.C. (3d) 341 affirmed (1996) 103 C.C.C. (3d) 224 (S.C.C.),
R. v. Spindloe 2001 SKCA 58.
21
R. v. Kouyas (1994) 136 N.S.R. (2d) 195 (N.S.C.A.)
22
R. v. Higgins and Higgins (1996) 111 C.C.C. (3d) 206 (Que.C.A.) at p.212.
18

12

R. v. Debot [1989] 2 S.C.R. 1140 per Lamer J.
R. v. Briggs (2001) Docket:C34813 (Ont.C.A.)
Caslake v. the Queen [1998] 1 S.C.R. 51 per Bastarache J.
15
R. v. Love (1995) 102 C.C.C. (3d) 393 (Alta. C.A.)
16
R. v. Silveira [1995] 2 S.C.R. 297 per La Forest at para.41.
13
14

Volume 3 Issue 2
February/March 2003

19

11

in a vehicle, depending on the relevant facts
surrounding their presence in it23.

1. the search and/or seizure was conducted by
a government agent (the police). The Charter
controls state action, not the behaviour of
persons in the private sphere28. However,
private persons may be converted into actors
of the state when they take an active role by
performing a function at the direction of the
police.

Informational
privacy
zones involve the
expectation of privacy in confidential personal
information retained by others. The use of such
information is restricted to the purpose for
which it was initially divulged. For example, a
person who provides personal information to a
physician for medical purposes has a privacy
interest in that information. The personal medical
information may not be freely provided to the
police by medical staff. Similarly, where the
police unreasonably seize hair and blood samples,
the accused maintains a privacy interest in the
information pertaining to these bodily samples24.
In considering whether a person has a reasonable
expectation of privacy in information, many
factors must be assessed in balancing societal
interests in protecting individual dignity,
integrity, and autonomy with the government’s
interest in advancing its goals, notably those of
effective law enforcement25.

3. the search was unreasonable. Simply
demonstrating a warrantless search or seizure
occurred satisfies this requirement. The police
will then be required to rebut this
presumption. Alternatively, the accused may
choose to challenge the law, the manner of the
search, or that police failed to comply with the
substantive or procedural requirements of the
authorizing law.

How is a s.8 breach proven?

Rebutting the warrantless presumption?

In establishing a s.8 Charter infringement, the
person alleging the breach must satisfy the court
on a balance of probabilities that their personal
right to be secure against unreasonable search or
seizure was violated. There is no obligation on the
Crown to establish that the search and seizure did
not violate s.826. Although the onus is on the
individual to prove the breach, they need not
necessarily give evidence. In some cases a breach
will be readily established on the basis of evidence
led by the Crown27. In proving their personal right
was violated, a person must demonstrate the
following three elements:

Although there is no constitutional warrant
requirement, all warrantless searches are prima
facie unreasonable30. Rather than justify a search
after it occurs (subsequent validation), the
warrant requirement serves as a means of
preventing unjustified searches before they occur
(prior authorization). When a warrantless search
occurs, the police (Crown) bear the burden of
justifying the search31. The warrantless/
unreasonable presumption may be rebutted
provided the search was conducted in a reasonable
manner pursuant to a constitutionally valid
statutory
or
common
law
rule32.
This
reasonableness test acts as a template for
assessing whether a search runs afoul of s.8 of the
Charter.

2. the person had a reasonable expectation of
privacy. The accused must show that their
personal reasonable expectation of privacy was
breached by the state conduct29.

23

R v. Belnavis [1997] 3 S.C.R. 341
R. v. Borden (1994) 92 C.C.C. (3d) 404 (S.C.C.)
25
R. v. Plant [1993] 3 S.C.R. 281 (S.C.C.)
26
R. v. Hammil (1984) 14 C.C.C. (3d) 338 (B.C.C.A.) leave to appeal to S.C.C.
dismissed [1987] 1 S.C.R. 265 (S.C.C.), also R. v. Feldman (1994) 91 C.C.C. (3d) 256
(B.C.C.A.) per Hinkson J.A. leave to appeal to S.C.C. dismissed 93 C.C.C. (3d) 575
(S.C.C.)
27
R. v. Butler (1995) 104 C.C.C. (3d) 198 (B.C.C.A.) leave to appeal to Supreme Court
of Canada refused 105 C.C.C. (3d) vi..
24

Volume 3 Issue 2
February/March 2003

28

R. v. Fitch (1994) 93 C.C.C. (3d) 185 (B.C.C.A.) at p.189.
R. v. Belnavis (1996) 107 C.C.C. (3d) 195 (Ont.C.A.) at p.207.
Hunter v. Southam (1984) 14 C.C.C. (3d) 97 (S.C.C.)
31
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.562.
32
R. v. Collins (1987) 33 C.C.C. (3d) 1 (S.C.C.)
29
30

12

Authorized by Law

Constitutionally Valid Law

Under both the Charter and the common law,
police "can only enter onto or confiscate someone's
property when the law specifically permits them to
do so33". The right of the police to search, without
a warrant, is subordinated to the existence of a
rule of law34. If a search is to be authorized by
law, the following three elements must be met35:

If the law authorizing a search is itself
unreasonable, any resultant search from that
unreasonable law will also be unreasonable. The
courts must determine if the authorizing law
complies with the Charter. If the court concludes
that the law violates the Charter, the law will be
ruled unconstitutional and will be of no force or
effect.

1.

The police officer conducting the search must
resort to a specific statute or common law rule
that authorizes the search. For instance, if the
police enter a house without the authority of
statute or common law, they commit a
trespass36. A departmental policy itself does
not have the force of law37. However, a policy
may be written in accord with the law and by
satisfying policy requirements police will also
be complying with the law. The true source of
authority is the law, not policy.

2. The search must be carried out in accordance
with
the
procedural
and
substantive
requirements of the authorizing law. The
provisions of the statute or the requirements
of the common law must be satisfied. A search
not in compliance with the requirements is not
a search authorized by law.
3. The scope of the search must be limited to the
area and those items for which the law has
granted authority to search. For example, if
the police are executing a search warrant they
must only act within the scope and ambit of
the warrant having regard to the description
of the premises and the range and type of
items listed in the warrant. The police may only
search those areas that might reasonably
contain the items specified in the warrant. If a
search exceeds the boundaries recognized
under the authorizing law, it is not valid to the
extent that the search exceeds the limits.

Reasonable Manner
Legality alone will not save a search that is
excessive in its execution38. A search authorized
by a reasonable law may be rendered unreasonable
by the manner in which the police physically
conduct themselves during the search39. Generally,
the police maintain exclusive control of how a
search is conducted. Manner includes the nature of
the search, the scope of the intrusion, the place in
which the search was conducted, or whether it was
abusive. The extent or intrusiveness of a search
must be proportionate to the underlying objectives
served by the search and the relevant
circumstances of the situation. In contrast
however, an unlawful search will not be
retroactively rendered reasonable even though the
search is conducted in an inoffensive fashion40.

Abandonment41
When a person voluntarily
Another person’s
discards
an
item
they
garbage can be an
relinquish
their
privacy
evidentiary
treasure.
interest in it; therefore s.8 is
not triggered and police may
gather the item without a warrant. However,
caution must be taken when the person is in
custody, as they have no choice but to discard
property into the exclusive control of the police.
Therefore, such disposal in police custody may not
be true abandonment.

33

Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.) at para. 12.
R. v. Higgins and Higgins (1996) 111 C.C.C. (3d) 206 (Que.C.A.) at p.211.
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
36
R. v. Silveria [1995] 2 S.C.R. 297 (S.C.C.) per La Forest at para. 50.
37
R. v. Flintoff (1998) 126 C.C.C. (3d) 321 (OntC.A.), R. v. Nicolosi (1998) 127 C.C.C.
(3d) 176 (Ont.C.A.), Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.), R. v. Kalin
[1987] B.C.J. No.2580 (B.C.Co.Ct.)
34
35

Volume 3 Issue 2
February/March 2003

38

R. v. Greffe (1988) 41 C.C.C. (3d) 257 (Alta.C.A.) per McClung J.A. at p.267
reversed [1990] 1 S.C.R. 755.
39
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Lamer J.
40
R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont.C.A.) at p.241.
41
see Volume 1 Issue 13 for a detailed review.

13

COMMON LAW INTRUSIONS INTO
PRIVACY
Implied Licence42
Unless revoked by signage,
I can walk to the
words or otherwise, a person
door,
knock, and
waives their privacy interest
talk to the
in the approach to their home
occupant.
for the purpose of persons,
including the police, coming on to the property to
communicate with them. Implied licence gets the
officer from the sidewalk to the doorstep to talk
to a home’s occupants. However, it does not allow
the officer to engage in an affirmative search for
evidence (eg. a sniff) if that is why they entered
in the first place. Conversely, if the officer
entered to communicate and inadvertently
gathers evidence, that is OK.

Search Incident to Investigative
Detention43
Under the common law the
I can search a
police are entitled to search
detainee for weapons
persons they detain for
if I have a reasonable
investigative
purposes
(subjective/objective)
provided the detention is
safety concern.
initially justified (articulable
cause and reasonably necessary) and the search
itself is limited in scope to a search for weapons
upon a specific, real, and legitimate safety
concern to protect the officer during the
spontaneous, unplanned street investigation. For
the most part, these types of searches will
involve the minimally intrusive pat down or
protective frisk. Since the generally accepted
constitutional standard for searches is reasonable
grounds, searches for evidence under this
authority are not permissible.

42
43

See Volume 1 Issue 1 for a detailed review
See Volume 1 Issue 7 for a detailed review.

Volume 3 Issue 2
February/March 2003

Search Incident to Arrest44
Under the common law a
I can search an arrestee
police officer has the
and their immediate
right
to
search
an
surroundings for safety
and/or evidence related
arrested person and their
to my arrest.
immediate surroundings as
an incident to their arrest.
This power is first predicated on a lawful arrest
(eg. s.495 Criminal Code). Further, the search
must be incidental, or connected, to the arrest
for safety concerns (weapons/escape aids) or
evidence related to the reason of the arrest.
Finally, the search must be physically conducted
in a reasonable manner. For the most part, an
independent belief the person has weapons or
evidence on or about them is not required.
However, in the case of strip searches, the
officer requires reasonable grounds that the
person has secreted a weapon or evidence on
them.

Plain View Seizure45
The common law plain view
Since I am already here
seizure doctrine allows
lawfully, I can take what I
the police to seize items
see without leaving to
get a warrant.
they visually observe from
a position they are legally
entitled to be. This power is a seizure authority
only and does not authorize an affirmative search.
In other words, the police cannot go looking for
things and then claim they were in plain view.
There are generally three prerequisites for this
rule. First, there must be a lawful intrusion into
the privacy area in question. The officer must be
legally entitled to be where they were when they
saw the item. Second, the officer generally must
find the item through inadvertence. Finally, it
must be readily apparent, or immediately obvious,
the item is subject to seizure. The officer needs
reasonable grounds the item is contraband or
evidence before they can seize it. Mere suspicion
is insufficient.

44
45

See Volume 2 Issue 3 for a detailed review.
See Volume 1 Issue 1 for a detailed review.

14

Consent46
A person can waive the
I can search a person
protection afforded them
or their property with
by the Charter under s.8. In
their voluntary and
essence, the person is telling
informed permission.
the police they are giving
permission for an intrusion
into their reasonable expectation of privacy. The
legal test for consent is two-fold. First, the
consent must be given freely and voluntary. This
includes an awareness of the right to refuse a
search, which can most easily be satisfied if the
police inform the person of this fact. Secondly,
the consent must be informed. This means the
person must have sufficient knowledge to make
their choice on whether to allow the police to
search meaningful. This includes an awareness of
the police conduct the person is consenting to
(the scope of the search) and an awareness of the
potential consequences of giving consent. They
must have an appreciation of their position in
respect of the investigation (eg. anything found
may be used as evidence if that is the purpose of
the search). Of course, the refusal or
withdrawing of consent cannot by itself provide
reasonable grounds to search without permission.
To hold otherwise would be to allow the state to
use a person’s exercise of their constitutionally
protected right to privacy against them.

Protection of Life47
Where
the
state’s
I can enter private
interest in effective law
property if I reasonably
enforcement
is
so
believe it is necessary to
protect people from
compelling
that
it
death or injury
outweighs an individuals
right to privacy, such as
saving a life or protecting someone from serious
injury, the police are permitted to enter a
premise to check on the welfare of the person,
provided they first give proper announcement if
appropriate under the circumstances. Proper
announcement includes giving notice of presence,
46
47

See Volume 2 Issue 4 for a detailed review.
See Volume 1 Issue 11 for a detailed review.

Volume 3 Issue 2
February/March 2003

purpose, and authority. The focus of this search
is on the endangered or injured person and does
not permit entry simply to investigate an offence.
Reasonable grounds for belief must be
established.
Similarly, in 911 hang up calls the police may enter
to ascertain the welfare of the caller, provided
some preliminary investigative steps are taken
prior to entry.
The focus is on the caller
(possible victim/injured person) and the police
may enter to ascertain the nature of the
emergency, which could be criminal, medical, or a
cry for help in another non-police related
emergent situation. The fact is, the police are
the first responders to enter these types of
emergencies and once the crisis has been
assessed, they will ensure the appropriate
resources are summoned (eg. EHS, fire). Of
course, if the police determine there is no
emergency, their right to remain on the property
ceases and they must leave or risk becoming a
trespasser.

Entry to Effect Arrest48
The legal authority to
Because I know the
arrest a person does not,
person I have the power
by itself, justify an entry
to arrest is in the noninto a private premise to
dwelling, I can enter
without a warrant if I first
carry out the arrest.
announce. In the case of
There is a recognized
a dwelling I must be in
distinction between the
hot pursuit or have
police power to arrest and
other compelling
the police power to enter
exigencies.
to effect it. At common
law, the police may make a warrantless and nonconsensual forced entry into private property
other than a dwelling house, such as a business,
detached garage, barn, non-dwelling out building,
land, or vehicle, to make an arrest provided the
police officer has the authority to arrest, the
officer has reasonable grounds to believe the
person sought is within the premise to be entered,
and proper announcement is made prior to entry49.
48
49

See Volume 1 Issue 6 for a detailed review.
R. v. Feeney [1997] 2 S.C.R. 13 at para. 24, R. v. Haglof 2000 BCCA 604.

15

This includes notice of presence, purpose, and
authority. However, forced entry without a
warrant into dwelling houses to effect arrests is
generally prohibited unless the interests of law
enforcement outweigh the privacy interest in the
home50. One exception to this rule is cases of hot
pursuit51 (other circumstances include the suspect
posing an immediate threat to arresting officers
or the public, or immediate police action is
necessary to prevent the loss of evidence52).

OVERHEARD CONVERSATION
BETWEEN PRISONERS
ADMISSIBLE
R. v. A.D., 2003 BCCA 106
Following the robbery of a 7-11
store by four females, the
accused, a young offender, was
arrested by police. On the first
day of the trial the accused, along with two coaccused, was transported from the youth
detention centre to the courthouse. During the
drive the transporting deputy sheriff overheard
the accused tell another prisoner, “You should
have seen the look on the guy’s face when we went
into the store”. When asked why they committed
the robbery the accused told the prisoner they
“needed the money”. Furthermore, she responded
that “cigarettes and a small amount of cash” were
taken. While in cells a second deputy sheriff
overheard the accused tell her co-accused, “let’s
hire a hit man”.
At trial, the inculpatory statements made by the
accused and overheard by the deputy sheriffs
were admitted at trial. These statements, along
with other evidence, were sufficient to satisfy
the judge beyond a reasonable doubt that the
accused was guilty of robbery. She was convicted
of the offence in Youth Court, but appealed to
the British Columbia Court of Appeal arguing,
among other grounds, that the statements were
50
51
52

R. v. Feeney [1997] 2 S.C.R. 13, R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont.C.A.)
R. v. Feeney [1997] 2 S.C.R. 13.
See s.529.3 Criminal Code.

Volume 3 Issue 2
February/March 2003

inadmissible. She claimed that the “covertly
intercepted” statements were obtained following
breaches of her s.7 and s.10(b) Charter rights
and that the requirements of s.56 of the Young
Offenders Act (YOA) were not satisfied.
Further, she contended that a youth must
knowingly accept the risk of making statements to
the police and since she was unaware she was
being overheard she could not accept the risk.
On the other hand, the Crown suggested that the
statements were not made to a person in
authority, but were voluntarily made to another
prisoner. Moreover, the statements were
spontaneous utterances made at a time where the
deputy sheriff’s could not reasonably comply with
warning requirements of the YOA.
In a unanimous judgment, Chief Justice Finch for
the British Columbia Court of Appeal rejected the
accused’s appeal. He concluded that the
statements were spontaneous conversations
unintentionally overheard by the deputy sheriffs.
They were voluntary statements made to a fellow
prisoner obtained by authorities through passive
surveillance and were therefore admissible.
Complete case available at www.courts.gov.bc.ca

ADEQUATE OBJECTIVE
FACTORS PROVIDE
ARTICULABLE CAUSE TO
JUSTIFY DETENTION
R. v. Hyatt & Pawlak, 2003 BCCA 27
In the early morning hours two
masked men, one armed with a
rifle, entered a convenience
store and threatened the clerk
with death while stealing money and cigarettes.
The two men fled and the clerk immediately
called 911, providing a suspect and clothing
description. Two police officers were dispatched
to the scene and were relayed the description
provided by the clerk. After searching the
immediate area of the robbery, the officers

16

broadened their search to a logging road and
stopped a vehicle occupied by the two accused
and a female driver, Ms. Bennett. After ordering
them out, the police obtained statements from
the three occupants without informing them of
the reasons for the detention or of their right to
counsel. Despite Ms. Bennett’s request to speak
to a lawyer before answering questions, the police
persisted. While searching the vehicle the police
found coins and cigarettes in the glove box. This
discovery, in conjunction with some of Ms.
Bennett’s responses, provided reasonable grounds
to arrest the occupants. Following the arrest, the
police found several bills in the accused’s pockets.
At the police station Ms. Bennett spoke to a
lawyer and told the police she did not wish to talk
until her lawyer could attend to see her. Ignoring
her request, the police attempted to press and
manipulate her to talk. Even against her wishes,
the police called her mother to the police station
to help make her cooperate. After 12 hours in
custody and continually refusing to cooperate, Ms.
Bennett succumbed to the pressure and provided
a recorded statement where she confessed to her
involvement with the accused and the robbery.
The police subsequently obtained a search
warrant for Ms. Bennett’s vehicle and seized the
coins and cigarettes from the glove compartment
and a shotgun and clothing from the trunk. All
three vehicle occupants were charged with the
robbery, but the charges against Ms. Bennett
were stayed and she was subpoenaed to testify
for the Crown. At the trial the accused were
convicted on the evidence of Ms. Bennett as well
as the real evidence discovered during the police
investigation.
Although they did not dispute their involvement in
the offences, the accused appealed to the British
Columbia Court of Appeal arguing they were
entitled to an acquittal, or at least a new trial,
because evidence was improperly ruled admissible.
Among other arguments, they suggested that
because they and Ms. Bennett were arbitrarily
detained (s.9 Charter), unreasonably searched

Volume 3 Issue 2
February/March 2003

(s.8 Charter), and had their right to counsel
violated (s.10(b) Charter), the evidence should
have been excluded under s.24(2).

Arbitrary Detention
At their trial, the accused Hyatt submitted that
the initial vehicle stop was arbitrary and all the
evidence flowing from the stop should be
inadmissible under s.24(2). He pointed out that
the officer agreed with defence suggestions on
cross-examination she was only acting on a
“hunch” or “suspicion”, therefore no articulable
cause existed. However, in rejecting this
argument, the trial judge found that the police
had an objectively based “articulable cause” to
justify
an
investigative
detention.
The
investigation involved a serious crime occurring in
a town of 30,000. The police had a limited
description matching two of the vehicle occupants
in age, gender, and race. The vehicle was found on
a logging road, unusual at that time in the
morning, and the time and location of the stop
were close in proximity to the robbery. In the
trial judge’s view, these factors were in the mind
of the officer at the time of the stop and
provided adequate objective grounds; a decision
supported by the British Columbia Court of
Appeal. This ground of appeal was rejected.

Unreasonable Search
In his appeal arguments, the accused Pawlak
submitted that the trial judge erred when she
concluded that he had no reasonable expectation
of privacy in Ms. Bennett’s vehicle or in the glove
box and its contents. He argued that the judge
gave insufficient consideration to his subjective
expectation of privacy. He hid the items from the
police in the glove box, he “owned” the items
seized, and the location of the glove box was
within his reach immediately in front of his seat.
The Court of Appeal refused to interfere with
the trial judge’s findings of fact and held that
she had properly applied the relevant legal
principles, including the totality of the
circumstances test, when she found the accused

17

failed to establish a reasonable expectation of
privacy.

Right to Counsel
Although the accused’s statements at the scene
were ruled inadmissible by the trial judge because
the police questioned them without advising them
why they were detained or of their right to
counsel under s.10 of the Charter, the accused
Hyatt further suggested that both the evidence
seized from the glove box and Ms. Bennett’s
testimony also resulted from those violations.
Thus, both the glove box items and the testimony
was derivative evidence, undiscoverable but for
the constitutional breaches and therefore
inadmissible under s.24(2).
The trial judge rejected this submission. She held
that the police officer’s decision to search the
vehicle was independent of the accused’s
statements. There was no evidence that the
interviewing officer told the searching officer of
his conversation with the accused. Although the
accused’s rights under s.10 were breached, these
breaches did not lead to the discovery of the
items in the glove box and the search was not an
inevitable consequence of the s.10 violations.
Furthermore, the trial judge ruled that Ms.
Bennett’s testimony was not derivative evidence.
Her discovery as a potential witness occurred
when she was found in the company of the two
accused and preceded any Charter violations.
Thus, her testimonial evidence was available under
subpoena and was not obtained in a manner
infringing the accused’s Charter rights. The
British Columbia Court of Appeal also rejected
this ground of appeal.

Third Party Charter Breaches
The trial judge was critical of police investigative
tactics, particularly those employed against Ms.
Bennett, and would have ruled her statements and
the glove box evidence inadmissible against her.
The police blatantly disregarded her rights,
relentlessly pressured her to give a statement,
and searched her vehicle with a defective

Volume 3 Issue 2
February/March 2003

warrant; defective because it was supported by
information obtained in violation of her rights.
The accused contended that since the glove box
evidence and Ms. Bennett’s testimony were
obtained from an unbroken chain of Charter
breaches, they should also be allowed to rely on
these violations to have the evidence ruled
inadmissible against them under s.24(2). However,
the trial judge concluded that the accused could
not argue exclusion based on the breaches to Ms.
Bennett’s rights; thus they had no standing to
challenge admissibility. As Justice Smith of the
Appeal Court noted, “Charter rights are personal
and cannot be asserted by anyone except the
person whose rights are violated”. In short, the
accused could not benefit from the breaches to a
third party’s (Ms. Bennett) rights.
The accused’s appeal was dismissed and their
convictions upheld.
Complete case available at www.courts.gov.bc.ca

REMOVING THE CONFUSION
FROM STRIP SEARCHES
Sgt. Mike Novakowski
Personal searches vary in
degree of intrusiveness.
Strip or skin searches
requiring the removal of
an arrestee's clothing is
greater an affront to
human dignity than a frisk
or pat-down search. As such, a greater
justification will be required. In addition, the
manner in which the search is carried out will be
critically examined53. In R. v. Golden 2001 SCC
83, the Court adopted the following definition of
a ‘strip search’:
[T]he removal or rearrangement of some or all
of the clothing of a person so as to permit a
visual inspection of a person’s private areas,

53

R. v. Morrison (1987) 35 C.C.C. (3d) 187 (Ont.C.A.), R. v. Bedford (2000) 143
C.C.C. (3d) 311 (Ont.C.A.)

18

namely genitals, buttocks, breasts (in the case
of female), or undergarments.

Although a search incidental to arrest does not
generally require reasonable grounds beyond the
grounds necessary to support the arrest, a strip
search is an exemption to this common law rule.
Strip searches represent a significant invasion of
privacy, and are often humiliating, degrading, and
traumatic experiences. Before undertaking this
type of intrusive search, the officer must possess
reasonable grounds justifying the strip search
independent from grounds justifying the arrest.
Strip searches carried out as a matter of routine
or policy, abusively, or for the purpose of
humiliating or punishing the arrestee will be
unreasonable. Furthermore, strip searches should
be conducted at the police station unless there are
exigencies requiring the search be conducted in
the field.

•
•
•
•
•
•
•
•

•
•

The following are a number of important points
concerning strip searches:
The common law power to search incidental to
arrest does include the power to strip search.
Although permissible as an incident to arrest,
strip searches are presumptively unreasonable
and the onus lies on the police to justify the
strip search.
Strip searches must be conducted in a
reasonable manner. The physical manner or
method of the search must be carried out in a
just and proper fashion. The search must not
be abusive and the scope of the intrusion
must be proportionate to the objectives of
the search and other circumstances of the
situation. In deciding whether the manner in
which a strip search was conducted meets the
constitutional requirements of s.8 of the
Charter, the following questions provide
guidance54:
•

54

Was the search conducted at the police
station, if not, why?

•

Was the health and safety of all involved
ensured?
Was the search authorized by a
supervisor?
Was the officer the same gender as the
arrestee?
Was the number of officers involved in
the search reasonable?
Was the minimum force necessary used?
Was the search conducted in private so
others could not observe?
Was the search conducted as quickly as
possible?
Was the search conducted in a fashion
that ensures a person is not completely
undressed at any one time?
Was the search only a visual inspection or
was there physical contact?
Was the arrestee provided the option of
self-removal or medical assistance if a
weapon or evidence is observed in a body
cavity?
Was a proper record of the reasons and
manner of search kept?

Strip searches are inherently humiliating and
degrading regardless of the manner in which
they are conducted and therefore cannot be
carried out as a matter of routine or policy.
Strip searches performed routinely or under
policy will not be rendered reasonable unless
there is a compelling reason justified in the
circumstances.
There is a distinction between strip searches
on arrest and strip searches related to safety
in full custodial settings such as a prison. The
appropriateness of routine strip searches of
individuals integrated into a prison population
cannot be used to justify strip searches of
individuals briefly detained by police or held
overnight in cells. Although police officers
have legitimate concerns that short term
detainees may conceal weapons, these
concerns cannot justify routine strip searches
of all arrestees regardless of the particular

see R. v. Golden 2001 SCC 83

Volume 3 Issue 2
February/March 2003

19

circumstances surrounding the arrest and
must be addressed on a case-by-case basis.
Strip searches are to be generally conducted
at a police station except in cases of exigent
circumstances where the police have
reasonable grounds to believe that the search
is necessary in the field such as an urgency to
search for weapons that could be used to
harm the officer, others, or the arrestee.
A person should be provided the opportunity
to remove items themselves or the assistance
or advice of trained medical professionals
should be sought to ensure material can be
safely removed.
When the reasonableness of a strip search is
challenged, the Crown (police) bears the onus
of proving on a balance of probabilities that it
was warranted:
•

•

In the case of strip searches in the field,
the police must demonstrate reasonable
grounds justifying the strip search,
exigent circumstances, and that the
search was conducted in a reasonable
manner.
In the case of strip searches at the police
station, the police must demonstrate
reasonable grounds justifying the strip
search and that the search was conducted
in
a
reasonable
manner.
Exigent
circumstances need not be proven.

WARRANTLESS SEARCH FOR
MISSING GIRL ON
ANONYMOUS TIP
UNREASONABLE
R. v. Tymensen, 2002 ABPC 164
The Alberta Provincial Court has
ruled that the search of a
residence for a missing girl
based on an anonymous tip
violated the accused’s Charter right to be secure

Volume 3 Issue 2
February/March 2003

against unreasonable search and seizure. Five
days after a 5-year-old girl went missing from her
home the police received an anonymous tip
recommending that they search an old school
house, which had been converted into an eightroom rental premise, because the missing girl
might be hidden there.
With
the
assistance
of
the
building
owner/landlord and his keys, the police
systematically searched each room to look for the
girl. The last premises to be searched was rented
by the accused. After receiving no response to
their knocking, the landlord unlocked the door and
the police entered, detecting an overwhelming
odour of marihuana. In plain view they noted illicit
drug items, firearms and ammunition. They also
found two bedrooms. One was unlocked and
contained approximately 120 small marihuana
plants under lights. The other room was locked
and the landlord did not have a key to open it. The
police did not enter this room, choosing instead to
apply for a search warrant.
A search warrant was obtained and police entered
the room and found a grow operation with an
estimated value of $131,800. The missing girl was
not located at the old schoolhouse, but the
accused
was
subsequently
charged
with
production, possession for the purpose of
trafficking, and a firearms offence. Tragically,
the missing girl was later found dead and her
killer convicted of murder.

Police Entry
During the voire dire to determine the
admissibility of evidence, Justice Jacobson noted
that in this case there were two competing
interests; the accused’s right to privacy and
society’s interest in effective law enforcement.
In most cases, individual rights outweigh society’s
except in compelling circumstances. In Charter
jurisprudence however, there is a presumption
that all warrantless searches are unreasonable
and the Crown bears the burden of justifying a
warrantless search. In concluding that the search

20

in this case was unreasonable, Justice Jacobson
stated:

s.8 of the Charter. The Crown has not met the
Collins criteria of reasonableness.

Up to and at the time of entry into the residence,
none of the four factors [justifying warrantless
searches:
exigent
circumstances,
indictable
offence being committed in the dwelling, danger of
imminent loss or destruction of evidence, or
impracticability in obtaining a warrant] were known
to or even in the minds of the police. The accused
was not suspected of, nor were there any
allegations of wrong doing of any kind on his part,
or in relation to his premises. The sole focus of the
police was to fulfill their duties in the
comprehensive police and public search for the
missing girl. They were doing so on their
supervisor's instructions, which were based on an
anonymous, vague, and unfounded public tip.

After rejecting various authorities such as
consent (by the landlord), the investigation of
recent or in progress crimes, and emergency 911
calls, Justice Jacobson held:

It was urgent that the girl be found. In that sense,
exigent circumstances did exist in relation to
finding the missing girl. She had been missing for
five days, under what the officer said were
"suspicious circumstances". This vague comment is
open to conjecture and speculation. Nevertheless,
the girl's unexplained disappearance created an
urgent and demanding situation. Responsible law
enforcement necessitated, as a part of their
official obligations and duties, that the police
carry out a rapid, thorough, and systematic
investigation including appropriate searches for
the missing girl. However, the evidence does not
convey any sense of actual urgency or necessity on
the part of [the officers]. After they received
their instructions at 2:00 p.m., four hours elapsed
before their search commenced at 6:00 p.m. They
didn't try to search the locked bedroom until
approximately 8½ hours later. Their final focus was
on drugs, not the missing girl.

And further:
The police ought to have known that their initial
entry and search of the residence was beyond
their investigative powers. At the relevant time
there were no grounds to justify a warrantless
entry under exigent circumstances to search for
the missing girl. They were not acting in an
appropriate manner and did not comply with the law
relating to searches. This conduct goes to both the
reasonableness and the seriousness of a breach of

Volume 3 Issue 2
February/March 2003

The public expects, and the law mandates that the
police act on reasonable and probable grounds
before invading the sanctity of the home of any
member of society.
The entry by the police was not a valid intrusion.
Notwithstanding their valid motive, the nature of
their purpose was a fishing expedition in relation
to a missing child. They did not make any proper
inquiries of the landlord to confirm what authority,
if any, he had to allow them to enter locked
premises of his tenants. The police officers must
have subjectively believed, and it must be
established objectively, that they had reasonable
and probable grounds to make the warrantless
entry. Without reasonable cause, in the absence of
exigent circumstances, the police engaged in a
warrantless exploratory search without reasonable
subjective or objective grounds.
The police search did circumvent the law when the
importance of finding the girl was improperly
relied upon as the basis for creating self-serving
exigent circumstances.
There were no exigent circumstances in relation to
the search itself, nor the accused himself, nor to
his residence. The police had no reasonable
grounds to enter the residence for any purpose,
but did so without the consent or permission of
the accused. The search warrant was based solely
on the information obtained from the warrantless
entry, the two matters are completely intertwined.
If as a result of their investigations and their
thoughts had turned to suspicion, then there were
other investigatory techniques available, such as
surveillance.
In accordance with public policy, ab initio the
police had the authority and the duty to
investigate the tip " but whether they may enter
dwelling houses in the course of such an
investigation depends on the circumstances of each
case… The lawful police authority at the accused's

21

residence ended at the front door. There was no
response. There were no reasonable grounds to
enter the accused's residence. There was no
nexus. The landlord did not have the authority to
consent to the police entry. The police entered the
residence in order to assist them in their search
for the missing girl as a part of the overall police
service investigation. The accused's s.8 Charter
right to privacy and to be free from unreasonable
search and seizure was violated by the entry. That
breach tainted the subsequent acts of the police,
including their obtaining the search warrant and
the search itself.

As a result, the evidence was excluded under
s.24(2) of the Charter.
Complete case available at www.albertacourts.ab.ca

Note-able Quote
“[T]he state of the law in Canada [is] that a
warrantless search is prima facie unreasonable.
No professional police officer can now claim to be
ignorant of this fact….[T]he Supreme Court of
Canada has made it quite clear that it is
incumbent upon police officers to be familiar with
decisions defining their powers55”. Justice Godin

COURT DECISIONS AVAILABLE
ONLINE
Supreme Court of Canada
www.scc-csc.gc.ca
British Columbia Appeal and Supreme Court
www.courts.gov.bc.ca
British Columbia Provincial Court
www.provincialcourt.bc.ca
Alberta Courts
www.albertacourts.ab.ca
Saskatchewan Courts
www.lawsociety.sk.ca
Ontario Court of Appeal
www.ontariocourts.on.ca
Prince Edward Island Courts
www.gov.pe.ca
Canadian Legal Information Institute
ww.canlii.org
55

2003 UPCOMING POLICE
ACADEMY COURSES
The Police Academy is
pleased to announce that
the following courses are
now available for 2003.
Police members wishing to
attend any of these
courses should first contact their departmental
training officer to determine if they are eligible to
register. A complete downloadable copy of the
Police academy Training Calendar is available online at http://www.jibc.bc.ca/police/f-police.html.

BAC Datamaster C Certification
(POLADV604)
June 2-6
October 6-10 (Island)
Length: 5 days

This course provides support with alcohol-related
investigations through the use of the BAC
Datamaster C instrument. Topics include breathtesting theory, pharmacology, physiology, BAC
Datamaster C functional overview, court
simulations, breath-testing, impaired driving law,
and legal procedures.
Persons applying for this course should be a
member of a recognized police agency, have two
years investigative experience, including impaired
investigations. Members should be in a position to
utilize the training and not likely to be
transferred to a specialty squad in the near
future. A mature approach to law enforcement, an
interest in and aptitude for technical aspects of
law enforcement, and an ability to be an effective
witness are also recommended.
Members previously designated in British
Columbia who have not conducted a breath test in
three years should consider taking this course.

R. v. Roberts, [1992] NBJ No. 241 (NBQB)

Volume 3 Issue 2
February/March 2003

22

Tactical Surveillance
(POLADV646)
March 31-April 4 (Island)
September 8-12
Length: 5 days

This course provides plainclothes police officers
who are assigned surveillance duties with the
knowledge, skills, and procedures needed to
conduct
surveillance.
Topics
include
communications, equipment, operational planning,
surveillance techniques and practical exercises.
Persons applying for this course should be a
member of a recognized police agency assigned to
a specialty unit and required to conduct
surveillance as part of their daily operational
assignment.

Field Trainers
(POLADV 661)
April TBA
October TBA
Length: 4 days

This course provides police officers who are
assigned field training duties with the knowledge
and skills required to train a recruit constable
during the Block II field training period. Topics
include block training overview, performance
evaluation report summary, traffic studies and
impaired investigations, legal update, personal
style and leadership, coaching and counselling
skills, training management plans, tips/ tactics/
techniques, progressive documentation, and
correcting performance problems.
Persons applying for this course should be
“certified” municipal constables of a recognized
police agency and currently or about to be
assigned field training duties.

Effective Presentations
(POLADV 657)
April 28-May 2
September 22-26
Length: 5 days

Volume 3 Issue 2
February/March 2003

Search & Seizure
(POLADV 645)
May 5-9
October 20-23
November 17-20
Length: 4 days

This course is for members of a recognized police
agency who require additional training pertaining to
the search warrant process. The course is
designed to provide police officers with the
knowledge and skills essential to conducting a
lawful search or seizure. Topics include
introduction to search and seizure, s.487(1)
Criminal Code warrants, firearms and other
weapons, warrants to enter a dwelling house,
general warrants for unusual procedures, special
warrantss, intercepting private communications,
Controlled Drugs and Substances Act searches,
provincial statutes, and the search warrant
application process.
Persons applying for this course should be a
member of a recognized police agency, have
relevant investigative experience, and conduct
searches and seizures as part of their daily
operational assignment.

Firearms Instructor
(POLADV 624)
May 12-16
Length: 5 days

Admin Skills
(POLADV652)

November 3-7 (Island)
Length: 5 days
This five-day course is for law enforcement
personnel who are seeking promotion or who have
recently been promoted to a supervisory position.
The course is based on the knowledge, skills, and
abilities related to the successful management of
administrative tasks and activities. Much of the
content covers “in-basket” style functions. The
course has been identified as an elective for the
Police Supervisors Certificate Program.

23

COURT UPHOLDS FIRST DEGREE
P.O. MURDER PROVISIONS
R. v. Sand & Bell, 2003 MBQB 45
The accused were charged with
committing the murder of RCMP
Constable Dennis Strongquill.
They brought a motion in the
Manitoba Court of Queen’s Bench arguing that
the provisions of s.231(4) of the Criminal Code
automatically making the murder of a police
officer acting in the course of their duties first
degree regardless of whether it is planned or
deliberate contravened s.7 (principles of
fundamental
justice)
and
s.9
(arbitrary
detention/imprisonment) of the Charter. Thus, in
their view it is of no force or effect and the
Crown cannot rely on this presumptive provision in
their case. After reviewing the statutory
provision and case law from other provincial
appellate courts, Justice Menzies concluded that
the section did not violate the principles of
fundamental justice nor would it subject the
accused to arbitrary detention or imprisonment if
convicted. The court held:
In legislating section 231(4)(a) of the Code,
Parliament has chosen to elevate murder of police
officers to that of first degree murder. Police
officers are the front line of society's defence
against crime. I agree with the comment of
counsel for the Crown that an attack on a police
officer is an attack on society itself. Parliament
has deemed it necessary to clearly denounce the
murder of a police officer.

The constitutional challenge to the provision was
dismissed.
Complete case available at www.canlii.org

“PRICE OF BUSINESS” MORE
COSTLY FOR DRUG DEALERS
R. v. Tammark, 2003 BCPC 006
The accused was involved in a
“dial a dope” scheme throughout
the
lower
mainland.
An

Volume 3 Issue 2
February/March 2003

undercover officer called the accused on his cell
phone and arranged a meet to purchase drugs.
The accused drove to the meeting place and a
small amount of ecstasy was sold to the
undercover officer. The accused was not arrested
at that time but a few months later at which time
he was again in possession of ecstasy.
At the time of the accused’s arrest he was
driving his 1990 Honda Civic, valued at
approximately $4,000. In addition to his arrest,
the vehicle was seized as offence-related
property.
The accused plead guilty to the charge of
trafficking in a controlled substance contrary to
s.5(1) of the Controlled Drugs & Substance Act
(CDSA). During sentencing Crown submitted an
order of forfeiture, under s.16(1) CDSA, for the
accused’s vehicle as the Crown contended it was
utilized to facilitate the accused’s drug
trafficking. Under s.16(1) CDSA
a judge is
permitted to order the forfeiture of offence
related property when a person is convicted of a
designated substance offence and the Crown
applies for a forfeiture order and satisfies the
court on a balance of probabilities that the
property is offence related and the designated
substance offence was committed in relation to
that property.
In order for the vehicle to be forfeited under
s.16(1) CDSA, the court first had to consider
whether the vehicle used by the accused
satisfied the definition of "offence related
property" found in s.2(1) of the Controlled Drugs
& Substance Act.
s.2(1) Controlled Drugs and Substances Act
"Offence-Related Property" means any property, within
or outside Canada,
(a) by means of which or in respect of which a
designated offence is committed,
(b) that is used in any manner in connection with the
commission of a designated offence,
(c) that is intended for use for the purpose of
committing a designated offence,
but does not include a controlled substance or real

24

property other than real property built or significantly
modified for the purpose of facilitating the commission
of a designated offence.

In finding that the vehicle was “offence related
property”, the court stated:
It is hard to imagine a "dial-a-dope" operation such
as this taking place without being facilitated by the
use of a motor vehicle. The vehicle was, I conclude,
on the balance of probabilities, instrumental to the
commission of the designated offence. It is personal
as opposed to real property.

And further:
Clearly the motor vehicle involved has not been
altered or modified. Can it be considered merely
incidental to the offence? I think not. Without the
motor vehicle being utilized, the drug trafficker
would be greatly restricted in his mobility. Sales
would obviously be adversely affected.

The court sentenced the accused to a $500 fine
as well as the forfeiture of his vehicle
Editor’s comments: “In Service: 10-8” would like
to thank Sannich Police Constable Andy Stewart
for this contribution to the newsletter.

AERIAL ‘FLIR’ FLY-OVER
REQUIRES WARRANT
R. v. Tessling,
(2003) Docket:C36111 (OntCA)
The Ontario court of Appeal has
ruled that an infrared flyover of
a targeted residence violated
the occupant’s s.8 Charter
rights. The police began an investigation
concerning the accused, and another man, after
they had received source information that he was
involved in the production and trafficking of
marihuana. The police contacted the hydro
authorities, but learned the power usage was
normal. Suspecting the accused may have been
bypassing the hydro meters, the police continued
their investigation using visual surveillance, but

Volume 3 Issue 2
February/March 2003

again nothing was revealed
presence of a grow operation.

supporting

the

It was decided the police would use an airplane
equipped with a forward looking infra-red (FLIR)
camera capable of detecting heat emanating from
the exterior of a residence. Because marihuana
grow lights give off an unusual amount of heat,
the FLIR would be able to assist the police in
determining whether there was a marihuana grow
present. As a result of the fly-over, the FLIR
pattern indicated heat emanations consistent with
a grow operation. This information, in addition to
the source information, was used to obtain a
search warrant for the accused’s residence. As a
result of executing the warrant, the police found
a large quantity of marihuana, scales, bags, and
weapons.
At his trial the accused argued the use of the
FLIR technology was an unlawful search and could
not be used to support the warrant. Without the
heat readings, the unreliable information from
the sources was insufficient to justify the
warrant. He suggested that since the warrant was
invalid, the search was unreasonable and the
evidence should be excluded. On the other hand,
the Crown contended that the use of the FLIR
was not a search, but an acceptable police
surveillance tool. Ruling against the accused,
Justice Thomson concluded that using the FLIR
was not a search and the warrant was valid. Thus,
the evidence was admissible.
The accused appealed to the Ontario Court of
Appeal arguing that the trial judge erred. He
maintained that the FLIR examination was a
search that breached his reasonably held
expectation of privacy in his home. Since the
police did not have a warrant to conduct the
FLIR, there were insufficient grounds remaining
to properly support the issuance of a search
warrant. Hence, the search was unreasonable and
the evidence ought to have been excluded. Again,
the Crown argued that the use of the FLIR was
simply surveillance, not a search. Further, they
suggested that the heat detected did not reveal

25

any intimate details about the occupants and
therefore there was no privacy, or at most only a
trivial interest, in the heat emanations.

Unreasonable Search
Justice Abella, writing for the unanimous Ontario
Court of Appeal, held “the use of FLIR technology
to detect heat emanations from a private home
constitutes a search and requires, absent exigent
circumstances, prior judicial authorization”. In
recognizing that the accused had a reasonable
expectation of privacy in the activities he carried
on in his residence, Justice Abella found the use
of FLIR unreasonably intruded on that privacy
interest. He wrote:
First, the FLIR technology reveals information
about activities that are carried on inside the
home. While the technology measures heat
emanating from the outer walls of the house, the
source of those emanations is located inside.
Moreover, the sole reason that police photograph
the heat emanations is to attempt to determine
what is happening inside the house. The fact that
it is necessary for the police to draw inferences
from the heat emanating from the external walls in
order to deduce what those internal activities are,
does not change the nature of what is taking place.
The use of the FLIR technology was an integral
step in ascertaining what was occurring inside the
appellant's home.
………
Secondly, I am satisfied that the FLIR technology
discloses more information about what goes on
inside a house than is detectable by normal
observation or surveillance. In my view, there is an
important distinction between observations that
are made by the naked eye or even by the use of
enhanced aids, such as binoculars, which are in
common use, and observations which are the
product of technology.
………
In any event, I do not share the Crown's view that
the FLIR reveals information that is in plain view
and easily observable. A member of the public can
walk by a house and observe the snow melting on
the roof, or look at the house with binoculars, or
see steam rising from the vents. Without FLIR
technology, however, that person cannot know that

Volume 3 Issue 2
February/March 2003

it is hotter than other houses in the area or that
one room in particular reveals a very high energy
consumption. FLIR technology, in other words, goes
beyond observation, disclosing information that
would not otherwise be available and tracking the
external reflections of what is happening
internally.
It is, it seems to me, overly simplistic to
characterize the constitutional issue in this case
as whether there is a reasonable expectation of
privacy in heat emanating from a home. The
surface emanations are, on their own, meaningless.
But to treat them as having no relationship to what
is taking place inside the home, is to ignore the
stated purpose of their being photographed, that
is, to attempt to determine what is happening
inside that home. It would, I think, directly
contradict the reasonable privacy expectations of
most members of the public to permit the state,
without prior judicial authorization, to use infrared
aerial cameras to measure heat coming from
activities inside private homes as a way of trying
to figure out what is going on inside.
………
The FLIR represents a search because it reveals
what cannot otherwise be seen and detects
activities inside the home that would be
undetectable without the aid of sophisticated
technology. Since what is being technologically
tracked is the heat generated by activity inside
the home, albeit reflected externally, tracking
information through FLIR technology is a search
within the meaning of s. 8 of the Charter.

The Court further went on to add that they were
not prohibiting the use of FLIR technology for
enforcing marihuana offences. However, any use
absent exigent circumstances will require prior
judicial authorization. Since the police did not
have a warrant to conduct the electronic
surveillance in this case, the accused’s s.8 Charter
right to be secure against unreasonable search
was infringed.

Admissibility
In holding the breach serious and excluding the
evidence under s.24(2) of the Charter, the Court
stated:

26

The heat emanations measured by the FLIR are
not visible to the ordinary viewer and cannot be
quantified without the technology. The nature of
the intrusiveness is subtle but almost Orwellian in
its theoretical capacity. Because the FLIR's sensor
cannot penetrate walls, it is true that a clear image
of what actually transpires inside the home is not
made available by the FLIR device. However, it is
not the clarity or precision of the image which
dictates the potency of the intrusiveness: rather,
it is the capacity to obtain information and draw
public
inferences
about
private
activities
originating inside the home based on the heat
patterns they externally generate, that renders
the breach serious.
Complete case available at www.ontariocourts.on.ca

PROPERTY LINE DOES NOT
PROVIDE IMPAIRED DRIVER
WITH A “HOME FREE” ZONE
R. v. Maciel,
[2003] O.J. No. 126 (OntCJ)
A police officer attended the
registered owner’s address after
receiving a complaint about a
possible impaired driver. While
waiting outside the residence the officer
observed the suspect vehicle approach the house
and pull into the driveway and stop. The officer
parked behind the vehicle and approached the
accused as he got out of the driver’s seat. After
noting physical symptoms of impairment and
receiving an admission of the consumption of
beer, the officer formed the opinion the accused
was impaired and arrested him. He subsequently
provided breath samples in excess of the legal
limit.
At his trial the accused argued that the police
entry onto his private property and physical
observations made constituted a warrantless
search for investigative purposes under s.8 of the
Charter and were therefore presumptively
unreasonable. Thus, he suggested the evidence
should be excluded and an acquittal should follow.

Volume 3 Issue 2
February/March 2003

Justice Duncan of Ontario’s Court of Justice
disagreed. He summarized the argument
presented as “based solely on the legal and
constitutional significance of the officer going a
few feet onto the [accused’s] property to conduct
an investigation that he was otherwise fully
entitled to conduct”. Justice Duncan concluded
the accused’s driveway was not a “home free”
zone giving refuge from police investigation into
his conduct immediately prior to entry. In ruling
that no s.8 search occurred he stated:
In my opinion, it is not reasonable to regard the
edge of one’s property as a moat that gives
sanctuary from the type of interaction with the
police that occurred here. The intrusion or entry
onto the property was very minimal and was of the
type that every homeowner expects to routinely
occur.

And further:
[T]he police officer in the present case was not
"taking a flyer" or acting on a mere whim or a
hunch. He had solid information, that he confirmed,
that gave him ample reason - and indeed imposed a
duty on him - to investigate further. He had
articulable cause, at least, and maybe more. This
was sufficient to give the officer common-law
authority to take investigative steps, although prima
facie involving interference with a person's liberty
or property, provided those steps were justifiable
under the circumstances. In my view, the boundary
of the officer's authority was not drawn by the
defendant's property line but by the sliding scale of
"justification" enunciated in the Waterfield test of
common-law police authority.
The innocuous entry onto the defendant's driveway
and the non-intrusive investigation (observation of
the defendant's condition and speaking to him)
were plainly justifiable, particularly having regard
to the absence of any practical alternative by way
of warrant. … No one could reasonably expect that
a police officer with grounds to investigate a
contemporaneous impaired driving allegation would
not come onto the driveway to observe the
driver's condition as he stepped from his vehicle.
There was no reasonable expectation of privacy,
and therefore no search within the meaning of
section 8 of the Charter. (references omitted)

27

Even if he were wrong in holding that there was
no search within the meaning of s.8, Justice
Duncan said it would have nonetheless been
reasonable. In this case, it would not have been
feasible for the police to obtain a warrant to
enter onto the property. He found “the exigent
circumstances inherent in an impaired driving
investigation
fully
justified
the
minor
encroachment on the [accused’s] property”. The
evidence was admissible and the accused was
convicted.

BCSC EXAMINES PHOTGRAPHIC
LINE-UPS

•

Justice Romilly also examined the enquiry report
authored by retired Supreme Court of Canada
Justice Cory in the wrongful conviction of Thomas
Sophonow. In that 2001 report, Commissioner
Cory recommended the following photo line-up
procedure, which Justice Romilly noted had been
referred to with approval by Justice Arbour of
the Supreme Court of Canada in R. v. Hibbert
(2002) 163 CCC (3d) 129 (SCC):

R. v. Miller, 2003 BCSC 118

•

An undercover officer attended
the residence of the accused,
knocked on the door, and
purchased $40 worth of cocaine
from him. The officer did not know the accused
and the transaction took less than a minute.
About 30 minutes after the buy the officer
picked the accused from a photo line-up
consisting of eight photos on a single sheet. At
his trial in British Columbia Supreme Court the
officer also pointed the accused out as being the
person who sold her the cocaine and based this
identification partly on a small mole on his face.

•

The accused testified he did not sell drugs to the
officer. Further, although he does have a mole on
his face, he claimed he has a more obvious scar on
his forehead, which was not referred to by the
officer. Supreme Court Justice Romilly examined
identification evidence, in particularly the use of
the photo line-up, and identified three
prerequisites for a valid line-up:
•
•

The police must not indicate to the witness
which person in the line-up is the suspect;
The selection of the other photos in the lineup should be fair in terms of physical
appearance (age, build, colour, complexion,
costume, or any other particular) and the

Volume 3 Issue 2
February/March 2003

suspect should not look conspicuously
different from the others; and
The procedure must be fair in testing the
ability of the witness to recognize the
suspect.

•
•

•
•

•

The line-up must contain at least ten
subjects;
The photos should resemble as close as
possible the witness’ description;
An officer not involved in the investigation
should conduct the line-up;
The entire photo line-up procedure should be
recorded on videotape, or at minimum
audiotape, from the time the investigator
meets the witness until the completion of the
interview;
The photos must be presented sequentially,
not as a group;
In addition to the audio or videotape, a form
recording the witness’ and officer’s signature
as well as any verbatim comments should be
used; and
The police should not speak with the witness
after the line-up about their identification or
lack thereof.

Justice Romilly was of the opinion that the 8
picture photo line-up used in this case was “no
longer acceptable”. He recommended that the
police adopt the procedures outlined in the
Sophonow report or risk their photo line-up
evidence being excluded. Since this case
preceded the Sophonow report and its
recommendations, Justice Romilly did not throw
out the line-up. However, the accused was
nevertheless acquitted. Justice Romilly stated:

28

… I have to warn myself on the frailties of the
eyewitness evidence of [the officer]. The accused
was an absolute stranger to her at the time she
made this buy; she had less than a minute to note
his appearance; she was unable to identify a major
scar on the forehead of the accused as being
present when she made the buy; and in-court dock
identification is always considered to be very
unreliable evidence.
Apart from all of that, I have evidence from the
accused that the Constable is mistaken about him
being the person who sold her the drugs...

He concluded there was a reasonable doubt as to
whether the accused was the one who committed
the offence and was left with no option but to
acquit.
Complete case available at www.courts.gov.bc.ca

DISCRETE RIGHT TO
DISCLOSURE PROTECTED
UNDER THE CHARTER
R. v. Henkel, Guertin, & Scott,
2003 ABCA 23

The Alberta Court of Appeal has
held that there is a distinct s.7
Charter right to disclosure and
establishing that a person’s right
to full answer and defence was compromised is
not necessary. The three accused were charged
with impaired driving offences and made early
requests for Crown disclosure, which did not
occur to their satisfaction. As a result, they
brought applications before a provincial court
judge for an order staying the charges.
The original lawyer handling the cases testified to
the problems with disclosure from Crown he was
experiencing. A Chief Crown Counsel testified
that only certain information was disclosed at the
first court appearance, regardless of the
information possessed by the Crown, and the
remainder was only provided if the person plead
not guilty. The provincial court judge concluded

Volume 3 Issue 2
February/March 2003

that the Crown had an obligation to disclose all
information available to it before the accused was
called upon to make a plea. Although he did not
order a stay, the judge found the accused’s
disclosure rights protected under s.7 were
breached and ordered the Crown pay costs.
The Crown appealed to the Alberta Court of
Queen’s Bench arguing there was no Charter
breach and consequently that the provincial court
could not award costs. The appeal was dismissed
and the Crown appealed further to the Alberta
Court of Appeal arguing, among other issues, that
the accused’s s.7 rights were not violated. The
Crown suggested that a breach of the right to
disclosure only amounts to a Charter violation if it
is so serious that it impairs the accused’s ability
to make full answer and defence to the charges.
In the Appeal Court’s opinion, there was a twostep process. The first stage was determining
whether there was a breach of disclosure. If
there was, a second step involved assessing what
remedy, if any, was appropriate. Remedies could
range from nothing at all to include a stay of
proceedings, a court order requiring disclosure, an
adjournment, or an award of costs. If the remedy
sought is a stay of proceedings, it will not be
granted unless the disclosure breach was so
serious as to impair the right to full answer and
defence or resulted from serious Crown
misconduct (which was not in issue).
The appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

THEORETICAL POSSIBILITY
INSUFFICIENT TO RENDER
CHARTER BREACH
R. v. O’Donnell, 2003 NBQB 61

Following his arrest for impaired
driving,
the
accused
was
transported to the police station
where he was placed in a small
room with the door partially open and spoke to his

29

lawyer. The accused testified he could hear police
officers’ voices outside the room, but not their
words. An officer testified he could not hear the
accused’s conversation with his lawyer. The
accused agreed to provide a breath sample and
his readings were over the legal limit. At his trial
he successfully argued that his right to counsel
had been violated. The Provincial Court judge
ruled that since it was theoretically possible that
the police could have heard what was being said,
the accused’s s.10(b) Charter right to counsel was
breached. However, the trial judge admitted the
evidence of the breathalyzer certificate under
s.24(2).
The accused appealed to the New Brunswick
Court of Queen’s Bench arguing that the judge
erred in admitting the evidence. In his view, the
certificate should have been inadmissible under
s.24(2). Although the Crown did not cross appeal
the finding of a s.10 Charter breach, Queens’
Bench Justice Garnett agreed with Crown that
“the theoretical possibility of…being overheard
did not amount to a breach of his right to
counsel”. In any event, the trial judge did not err
in admitting the evidence of the certificate.
Excluding it would more likely discredit the
justice system than its admission.
Complete case available at www.canlii.org

APPEALS TO CONSCIENCE OR
MORALITY ARE NOT
INDUCEMENTS
R. v. Crockett, 2002 BCCA 658
The accused was arrested for
the
sexual
assault
and
confinement of a 16 year old girl
as she was walking at school. At
the police station he spoke to a lawyer and was
advised not to talk to the police nor provide any
samples to them. As his clothing was removed and
seized, a sergeant and a constable had a
conversation with him. This interaction was
recorded, but the accused refused to answer any

Volume 3 Issue 2
February/March 2003

questions. A second conversation subsequently
followed, however it was not recorded. The police
felt that the presence of a tape recorder would
interfere with the rapport building they sought
with the accused.
The sergeant told the accused he understood his
lawyer’s advice in not talking to the police, but
that was something a lot of lawyers say and a
lawyer cannot see into a person’s heart. With
that, the sergeant told the accused to think long
and hard about the truth. When asked what
sentence he would receive, the police said they
could not speculate and it was for the courts to
decide. In an attempt to appeal to the accused’s
conscience and values, an officer told the accused
at the end of the unrecorded conversation, “The
truth is important and goes a long ways”. The
accused agreed to provide a statement during the
unrecorded conversation and he subsequently
confessed during a recorded interview. The
accused was convicted by a Supreme Court judge
of sexual assault causing bodily harm and unlawful
confinement.
The accused appealed to the British Columbia
Court of Appeal arguing that his statement was
not voluntary because it was induced by an offer
of leniency, some of his statements were not
recorded, and that the police attempted to
persuade him to disregard his lawyer’s advice.

Inducement
Although the accused insisted his main motive for
confessing was to obtain a lesser sentence,
Justice Levine, writing for the unanimous British
Columbia Court of Appeal, agreed with the trial
judge’s conclusion that there was no quid pro quo
offer made to the accused by the police to get a
confession. The officers made no suggestion they
could intervene on his behalf or had any control
over sentencing. Furthermore, the accused never
requested them to help, generally or specifically.
The accused felt remorseful, guilty, and
disgusted with himself. In citing Supreme Court

30

of Canada Justice Iacobucci in R. v. Oickle (2000)
147 C.C.C. (3d) 321 (S.C.C.), Justice Levine stated:
[S]uspects confess to crimes for a variety of
motives, one of which might be the hope of a
lesser sentence. Other motives are guilt, which
the [accused] stated to police was the reason for
his confession, and the relief that one feels from
telling the truth. The question is whether the
confession was induced by a promise or threat by a
person in authority. Appeals to conscience and
morality are neither promises nor inducements
that, in the absence of other circumstances, will
result in the inadmissibility of a confession.

Unrecorded Statements
In some cases, the absence of a statement
recording can raise a reasonable doubt about its
voluntariness. Although a recording can assist a
judge is assessing whether a confession is
voluntary, there is no absolute rule requiring that
a statement be recorded. In this case there was
little
dispute
about
the
surrounding
circumstances of the unrecorded interview, the
words used, or their context. Here, the
credibility and reliability of the statement could
be assessed in the traditional way without the
necessity of a recording.

Persuasion to Disregard Lawyer’s Advice
After facilitating consultation with counsel the
police are entitled to question an accused
provided they do not denigrate the integrity of
the lawyer. In this case the police only suggested
to the accused “that the advice he was given was
general advice” while appealing to his conscience
and the stress he was under. The accused
understood he had a choice in speaking or not and
did so because of guilt.
The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Fight the good fight” 1 Timothy 1:18

Volume 3 Issue 2
February/March 2003

DETENTION OF
UNNANOUNCED ARRIVAL NOT
ARBITRARY
R. v. Nguyen, 2003 BCPC 0021
Police obtained a search warrant
for a residence with respect to
theft of electricity. Upon
attendance at the house a police
officer observed a grey minivan parked directly in
front registered to a person wanted on an
outstanding arrest warrant for possession of
marihuana for the purpose of trafficking. The
police entered the home to conduct their search,
but there were no occupants. A four room, 153
plant marihuana grow operation was found in the
basement. Shortly thereafter, the accused
arrived in a vehicle and parked in the garage at
the back of the home. He then walked to the
front door. An officer suspected he was the
person wanted on the warrant, stated “Police”,
and asked for identification. The accused
produced a driver’s licence with information
matching the wanted party and was arrested and
handcuffed. He was searched and a set of keys
found in his pants pocket unlocked the door to
the residence. He was then informed of his
Charter rights.
During a voire dire, the accused argued that he
was arbitrarily detained (s.9 Charter) and
unreasonably searched (s.8 Charter). Justice
Maughan of the British Columbia Provincial Court
disagreed. Not every encounter between a citizen
and a police officer is a detention. In this case
there was no detention when the officer stated
“Police” and asked for the production of
identification. In Justice Maughan’s view the
officer properly arrested the accused on the
outstanding warrant after his identification as
the wanted person was confirmed. Moreover, the
arresting officer “had concerns about an unknown
individual arriving unannounced at the residence
at a time when a search warrant was being
executed”. Together with the knowledge of the

31

outstanding warrant and the van parked in front
of the house, articulable cause existed for the
officer to ask the accused to identify himself. In
finding no Charter infringements, Justice
Maughan stated:
I find once [the officer] determined the identity
and date of birth of Mr. Nguyen from his driver's
license, he then had reasonable grounds to arrest
him on the outstanding warrant. Thereafter, he
was entitled to search him subsequent to that
lawful arrest and upon finding keys in his
possession, it was reasonable for him to pass them
onto his fellow officer for the purpose of
furthering their investigation at the premises
being searched. The evidence found by the
officers, to wit the keys, were found subsequent
to a lawful arrest and consisted of real evidence.
The accused was given his s.10 Charter Rights,
which is his right to contact and instruct a lawyer
and it was intended that he would be allowed to
pursue that a short time later when he was at the
police station. There was no attempt to obtain any
statement from him at any time.
Complete case available at www.provincialcourt.bc.ca

INTERCEPT UNLAWFUL: USE OF
ROOM DIRECTED BY POLICE
R. v. Mojtahedpour, 2003 BCCA 22
Following a fatal shooting at a
movie
theatre
the
police
interviewed the accused who was
an acquaintance of the suspect in
the homicide. The accused lied to police and told
them he was at another location with the suspect
when the shooting occurred. After more
investigation including an undercover operation,
the suspect was subsequently arrested for the
murder. In an effort to establish the truth from
the accused and use him as a witness, the police
re-interviewed him. The police attended his home
to persuade him to come to the police detachment
voluntarily. He agreed and was transported to the
detachment by police. His parents also drove to
the detachment but were advised to return home
by the accused. The accused was then

Volume 3 Issue 2
February/March 2003

interrogated and reiterated that he and the
murder suspect had been elsewhere at the time
of the shooting.
During the homicide investigation the police had
obtained a judicial authorization to intercept
private communications, including those between
the accused and his parents. Both were named
parties in the authorization. These interceptions
were permitted at various locations including the
accused’s home. In the early morning following his
arrest the police contacted the accused’s parents
and suggested they attend the detachment. At
the same time, the accused was told his parents
were attending the detachment and he would be
provided the opportunity to speak to them in a
room. However, unbeknownst to the accused or
his parents the police had wired the room so the
conversation could be intercepted and tape
recorded. While speaking to his parents, the
accused admitted he had been with the murder
suspect at the homicide scene and that he had
lied to the police. He was charged with attempting
to obstruct, pervert, or defeat the course of
justice by making false statements to the police
during the investigation. The trial judge found the
intercepted communication lawful and convicted
the accused.
The accused appealed to the British Columbia
Court of Appeal arguing, among other grounds,
that the conversation with his parents was
unlawfully
intercepted.
Although
the
authorization allowed the police to intercept
communications “at any other premises, either
mobile or stationary…resorted to or used by the
persons [listed]”, the accused submitted he was
“brought to” the room in the detachment. It was
suggested that this was not within the
parameters of “resorted to” or “used by”. Thus
the evidence should be excluded under s.24(2).
On the other hand, the Crown argued the
conversation was lawfully intercepted and even if
it was not it should nonetheless be admissible
under s.24(2).

32

Justice Hall, writing the majority judgment,
concluded that the interception went beyond the
parameters of the authorization. Although the
authorization itself was facially valid and not
overly broad, it could not be interpreted to cover
this circumstance. Justice Hall stated:

YOUTH CRIMINAL JUSTICE
ACT ARRIVING SOON

The [accused], who was acknowledged to be
detained, was placed in the room to talk to the
parents. I think it would be a linguistic stretch to
say that in these circumstances, the site of the
interception was a place being “resorted to” or
“used by” the targets of the authorization.

Criminal
Justice
Act
(YCJA) is scheduled to
become law and replace
the Young Offenders Act
(YOA). This article will
examine the operational impact of the new
legislation on the front line officer and provide
supplemental information of interest to law
enforcement, such as sentencing procedures.

The majority ordered a new trial, leaving it for
the new trial judge to consider admissibility
under s.24(2) of the Charter.
Although agreeing with the majority that the
intercept was unlawful, Justice Newbury did so
for a different reason. In her view, the police
must have reasonable grounds to believe that
the room would be used by a targeted person at
the time they activated the listening device;
the fact the person(s) did resort to or use the
facility in question is not sufficient. The police
only knew the accused and his parents would be
using the room because they directed them to
do so. Except for this suggestion, there were no
reasonable grounds to believe they would use it.
Justice Newbury concluded that if “the police
manoeuvre suspects into places or facilities for
the
express
purpose
of
intercepting
statements, without any evidence justifying an
expectation that the target would otherwise
have used or resorted to the location or
facility”, an “unreasonable delegation of
authority to law enforcement officers and an
unacceptable violation of privacy” results.
Justice Newbury also ordered a new trial.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“If you really enjoy your job you’ll never work a
day in your life”. Author unknown.

Volume 3 Issue 2
February/March 2003

Sgt. Mike Novakowski

April 1, 2003 is the date on
which the new Youth

Definitions
Under the new YCJA the age of a youth remains
unchanged. A young person remains a person
between the ages of twelve (12) and seventeen
(17) inclusive. A child is under twelve (12) while an
adult is a person who is neither a young person nor
a child (eighteen (18) years of age and older).
Child:
Young person:
Adult:

< 12 years
12-17 years
18 + years

RIGHT TO COUNSEL
Further to the right to counsel
afforded all persons arrested or
detained under s.10(b) of the
Charter, young persons continue
to have the additional right to
retain and instruct counsel
without delay and to exercise
that right personally at any stage of proceedings
(s.25(1) YCJA). This includes during any
consideration to use an extrajudicial sanction.
Furthermore, s.25(2) also requires every youth
upon arrest or detention to be advised by the
police without delay of the right to retain and
instruct counsel and to be provided an opportunity
to obtain counsel.

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STATEMENTS
Obtaining admissible statements is a cornerstone
of a good police investigation. Properly gathered
statements, including confessions from youth,
may make the difference between a conviction
and an acquittal. The following is a summary of
the new provisions under the YCJA highlighting
the evidentiary rules when obtaining statements
from a youth.

Admissibility
Many of the rules under the YOA concerning the
taking of statements remain unchanged, although
the wording is slightly different. Under s.56 of
the YOA special rules governed the taking of
statements by a person in authority from a youth.
These conditions were in addition to any rules
relating to the taking of statements from accused
persons in general. In short, the rules concerning
statements from adults plus the added
protections provided youth must be adhered to.
Section 146 of the new YCJA is the s.56 YOA
counterpart. Under s.146, a police officer taking a
statement (oral or written) from an arrested or
detained youth, or from a youth the officer has
reasonable grounds to believe committed an
offence, must:
Clearly
explain
to
the
youth
in
age/understanding appropriate language that:
•
•
•

•

the youth is under no obligation to provide
a statement;
any statement made by the youth may be
used as evidence against them ;
the youth has the right to consult counsel
and a parent, an adult relative, or any
other appropriate adult they choose
(except a co-accused or other person
being investigated for the same offence);
and
any statement made by the youth must be
made in the presence of the person(s)
they consult unless they desire otherwise.

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February/March 2003

If the youth chooses to give a statement,
they must be provided a reasonable
opportunity to make it in the presence of the
person they consult.

Spontaneous Utterances
If a police officer receives a statement made
spontaneously by a youth when the officer did not
have a reasonable opportunity to comply with the
requirements outlined above, failure to fulfill
these requirements does not render the
statement inadmissible (s.146(3) YCJA).

Waiver
If a youth waives their right
to consult a lawyer or other
adult, the waiver must be
recorded on video tape,
audio tape, or in writing
(signed
by
the
youth)
(s.146(4) YCJA). Section 56 of the YOA did not
allow audio taped waivers and is new to the YCJA.
Also new to the YCJA is a provision that allows a
youth court judge to exercise discretion in
admitting a youth’s statement where there is a
technical irregularity in complying with the waiver
requirements and the judge is nonetheless
satisfied the youth voluntarily waived their rights
(after being properly informed of them) and the
admission of the statement would not bring the
principle that a youth is entitled to enhanced
procedural protections into disrepute (ss.146(5) &
(6) YCJA). This allows for voluntary statements
to be ruled admissible as evidence despite a minor
legal technicality, something that was not
available under the rigid technical rules of the
YOA.

Duress
Like the YOA, statements made under duress to
persons who are not persons in authority may be
ruled inadmissible by the court (s.146(7) YCJA).

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FINGERPRINTS AND PHOTOGRAPHS
Section 113 of the YCJA
allows the application of the

Identification of Criminals
Act (ICA) to youth, provided
an
adult
could
be
fingerprinted
and
photographed under the
same circumstances. Operationally this means
that a youth may be treated the same way as an
adult for the purposes of the ICA and the
accompanying fingerprinting and photographing
procedures apply. This remains unchanged from
the YOA.

EXTRAJUDICIAL (non-court) MEASURES
Part 1 of the YCJA outlines
a
framework
for
the
imposition of alternative
approaches in addressing
less serious youth crime by
providing
meaningful
consequences other than
court proceedings. These
alternative approaches are
called
“extrajudicial
measures” and reflect the basic premise that
crimes are different and should be addressed
differently, including responses that do not
engage court proceedings. Extrajudicial measures
are founded on the following principles:
•
•
•

they are often the most appropriate/
effective way to address youth crime;
they allow for effective/timely behavioural
corrective interventions; and
they are presumed to adequately hold the
youth accountable for their non-violent, first
time offending behaviour and may be
adequate in other circumstances.

Extrajudicial measures include alternatives such
as taking no further action, informal warnings,
formal police or Crown cautions, a notice to
parents,
informing
victims,
referrals
to

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February/March 2003

community programs, or referral to extrajudicial
sanctions (formal measures authorized by the
Attorney General or other designated government
official). The objectives of these measures are to
provide an effective/timely response, encourage
the repair of harm to and the involvement of the
victim, the community, and the youth’s family. At
the same time, the rights of the youth must be
respected
and
the
measures
must
be
proportionate to the seriousness of the crime.

Extrajudicial Measures Used by the Police
Police officers are often the first to encounter a
young offender. Bearing in mind the principles of
extrajudicial measures, under s.6(1) of the YCJA
a police officer is obligated to consider whether
it would be appropriate to:
•
•
•
•

take no further action;
informally warn the youth;
administer a formal caution; or
refer the youth to a community program or
agency.

These options must be considered in all cases
where a charge could be laid. The officer must
have reasonable grounds to believe an offence has
been committed. This framework supports the
police in the use of their discretion when imposing
extrajudicial measures.

No Further Action
In the case of minor offences, a simple warning to
the youth may be the most appropriate action to
take and avoid the need to use police or court
resources. Other persons like parents or school
officials may have already taken adequate
measures to hold the youth accountable for their
actions.

Informal Warning
Police have always used informal warnings and the
YCJA supports their continued use in appropriate
instances. Letting the youth know that their
offending behaviour is unacceptable and could
result in further formal action may be a

35

sufficient deterrent and adequately deal with the
offence. “Warning” is not defined in the YCJA;
thus any such warning may be oral or in writing.

Formal Caution
Formal police cautions, in the
form of a letter, bridge the gap
between an informal warning
and a charge. These cautions
make it clear to the youth of
the
seriousness
of
their
behaviour. However, they must
not be used in cases where
taking no further action or an informal warning
would be sufficient. Unlike informal warnings,
police cautions can only be given if the respective
province establishes a police caution program.

Referral
The police may also refer the youth to a
community program or agency that may help them
not commit offences. However, in these
circumstances the consent of the youth is
mandatory.

Extrajudicial Sanctions
Extrajudicial sanctions, a form of extrajudicial
measures, may be used if the youth cannot be
adequately dealt with by taking no further action,
using an informal police warning, a police or Crown
caution, or a referral. However, extrajudicial
sanctions may not be used unless:
•
•

Sample:

•

Form 1
Sections 6 and 7
Youth Criminal Justice Act
Police Caution to a Young Person
To: {name of young person}
When I have reasonable grounds to believe that you have committed a
criminal offence, the Youth Criminal Justice Act requires me, before starting
judicial proceedings, to consider taking measures other than going to court.
Since I have reasonable grounds to believe you have committed a criminal
offence, under section 6 of the Youth Criminal Justice Act I am giving you a
formal caution.
If you break the law in the future there may be more serious consequences,
including charges, going to court, and the possibility of serious penalties.
{date}
{place}
{name of police officer}
{police department}

Contact # for further information___________________

•
•

they are authorized by the Attorney General
or other designated government official;
the sanction would be appropriate under the
circumstances;
the youth consents to it and has been advised
of their right to counsel;
the youth accepts responsibility for the
offence; and
there is sufficient evidence to proceed with a
prosecution which is not in any way barred at
law.

Where a youth denies participation in the crime
or desires the charge be heard in Youth Court, an
extrajudicial sanction may not be used.

Failure of Police to Consider Extrajudicial
Measures
The failure of a police officer to consider the
options of extrajudicial measures does not render
any subsequent charges against the youth invalid
(s.6(2) YCJA).

Admissions in Extrajudicial Measures
Any admission, confession, or statement by a
youth accepting responsibility for an offence as a
condition of being dealt with by extrajudicial
measures is inadmissible as evidence against the
youth in any civil or criminal proceeding (s.10(4)
YCJA).

Volume 3 Issue 2
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36

Volume 3 Issue 2
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37

CONFERENCES
Under s.19 of the YCJA a police officer may
convene or cause to be convened a conference for
the purpose of making a decision required under
the Act, including the need to obtain advice on
appropriate extrajudicial measures. The Attorney
General or other designated government official
is responsible for establishing the rules for
convening and conducting these conferences.

PARENTAL NOTICE OF ARREST
When a youth is arrested and detained in custody
for court, the police must, as soon as possible,
notify the parent orally or in writing of the
arrest, the place of detention, and the reason
thereof (s.26(1) YCJA). If the youth is released
and issued an appearance notice, promise to
appear, undertaking, or recognizance, the police
must give or cause to be given to the parent
notice in writing (s.26(2) YCJA). If the
whereabouts of the parent is unknown or no
parent is available, notice may be given to an adult
relative or other appropriate adult likely to assist
the youth.
“Parent” is defined in the YCJA as any person who
is under a legal duty to provide for the youth, or
who in law or fact has the custody or control of
the youth, but does not include persons who have
custody or control by reason only of proceedings
under the YCJA, such as a police officer or jail
guard. All notices must include the name of the
youth, the charge, the time and place of
appearance, and a statement that the youth has
the right to be represented by counsel.

Warrants
Warrants issued by a Youth Justice continue to
be executable anywhere in Canada (s.145 YCJA).

SENTENCES
Under the YOA an adult court
transfer hearing would occur
before the trial and any
determination of guilt. These
hearings were often complex and once it was
decided that the youth would be “raised” to adult
court, they lost the protections available to
youth. Under the new YCJA, all cases are heard in
Youth Court and it is not until after a conviction
that an adult sentence eligibility hearing will
occur. This allows the Youth Court to make a
decision on an adult sentence after hearing the
case at trial.
Under the YCJA, there are a number of offences
known as presumptive offences where an adult
sentence will be given to a youth 14 years or
older, unless the youth applies for a youth
sentence. These presumptive offences include
murder, attempt murder, manslaughter, or
aggravated sexual assault. In cases of youth who
are repeat, serious, and violent offenders, the
Crown may give notice to the youth that they are
seeking an adult sentence on conviction. Upon a
finding of guilt, the Crown must establish that
there were at least two prior serious, violent
offences. If this is proven, the youth will be
presumed eligible for an adult sentence unless
they apply for a youth sentence. In other nonpresumptive offence cases, the Crown must give
notice to the youth and the court before a plea.
An adult sentencing eligibility hearing will then
occur after a finding of guilt.
If a guilty youth does not receive an adult
sentence, s.42 of the YCJA provides that the
following sanctions may be imposed:
•
•
•
•
•
•

Volume 3 Issue 2
February/March 2003

reprimand;
absolute discharge;
conditional discharge;
fine not exceeding $1000;
monetary compensation for loss, damage,
injury;
restitution;

38

•
•

•

compensation through personal service;
any prohibition, seizure, or forfeiture order
(other than s.161 Criminal Code) under any
federal statute (eg. driving prohibition,
weapons prohibition);
probation not exceeding 2 years;

•

intensive
program order;

•

approved non-residential program not
exceeding 240 hours over 6 months;
custody and supervision not exceeding 2
years; if offence is one with a life sentencecustody and supervision not exceeding 3
years; if offence is a presumptive offencecustody and supervision not exceeding 3
years;

•

•

•
•

•

support

and

supervision

intensive
rehabilitative
custody
order not exceeding 2 years; if offence is one
with a life sentence-intensive rehabilitative
order not exceeding 3 years;
deferred custody and supervision
order not exceeding 6 months;
if offence is first degree murder-10 years
(maximum 6 years custody or intensive
rehabilitative
custody
plus
conditional
supervision); if offence is second degree
murder- 7 years (maximum 4 years custody or
intensive
rehabilitative
custody
plus
conditional supervision);
any other reasonable and ancillary conditions
the court deems advisable and in the best
interests of the youth and the public.

OFFENCES
Section 137 YCJA creates a summary conviction
offence for a youth who willfully fails or refuses
to comply with a sentence or disposition under the
Act (such as probation). Section 136 also creates
hybrid offences with a maximum 2 years
imprisonment for a person who:
•

induces or assists a youth to unlawfully leave a
place of custody;

Volume 3 Issue 2
February/March 2003

•
•
•

•

unlawfully removes a youth from a place of
custody;
knowingly harbours or conceals a youth who
has unlawfully left a place of custody;
willfully induces or assists a youth to breach
or disobey a condition of their sentence or
disposition; or
willfully prevents or interferes with a youth in
the performance of a condition of a
disposition.

RECORDS
Under the YCJA youth records are divided into 3
categories, each with their own retention, access,
and disclosure provisions:
•
•
•

Court records
Police records
Government or other records

Court Records
Courts or review boards may keep a record of any
case coming before it or arising under the Act
(s.114 YCJA). Under s.119(1)(a) a peace officer
shall be given access to these records for law
enforcement purposes or any other purpose
related to the administration of the case to which
the record relates, unless a youth court judge
withholds all or part of a report.

Police Records
The police force participating in the investigation
of an offence alleged to be committed by a youth
may keep any related record, fingerprints, or
photographs (s.115 YCJA). When the youth is
charged with an indictable offence, the police
may provide a record to the RCMP central
repository; if convicted the police must provide a
copy. On request, a police officer may then be
given access to police records for law
enforcement purposes or any other purpose
related to the administration of a case to which
the record relates (s.119(1) YCJA). Records in
respect to extrajudicial measures (except
extrajudicial sanctions) shall only be given to

39

police officers to assist with making a decision on
appropriate extrajudicial measures, to administer
the case, or for the purpose of investigating an
offence (s.119(4) YCJA).

Government or Other Records
Governmental departments or agencies may keep
records obtained from youth investigations or
proceedings under the YCJA, when administering
sentences or court orders, and when considering
extrajudicial measures, or resulting from the
application of extrajudicial measures. Similarly,
other persons or agencies may also keep records
on youth obtained as a result of extrajudicial
measures or in administering a youth sentence
(s.116 YCJA). Peace officers have the same right
of access to these records as they do to police
records.

Disclosure
A police officer may disclose information
contained in a court or police record if disclosure
is necessary while conducting an investigation of
an offence (s.125(1) YCJA). Court and police
records may also be disclosed by the police to a
foreign state for the purposes of extradition
(s.125(3) YCJA).
A police officer may also
disclose court or police record information to an
insurance company for the purpose of
investigating a claim arising from an offence
committed or alleged to have been committed by
the youth (s.125(4) YCJA). Similarly, a police
officer may disclose information to any
professional or other person engaged in the
supervision or care of a youth, including a school
representative, to ensure compliance with an
order of the court, to ensure the safety of staff,
students, or other persons, or to facilitate the
youth’s rehabilitation.

Publication
The YCJA continues to
prohibit the publication of
a young offender’s name or
information
that
may
identify them, save special

Volume 3 Issue 2
February/March 2003

circumstances. In one such circumstance, a police
officer may appear ex parte before a youth court
to get judicial permission for the publication of a
youth’s identity if there is reason to believe they
are a danger to others or it will assist in their
apprehension.

Record Offences
Persons
who
contravene
publication,
access,
or
disclosure provisions commit a
hybrid offence punishable by
up to two years in prison (s.138
YCJA).

Summary
The above information is by no means intended to
be an exhaustive review of the YCJA. For more
information on the Act, go to the Justice
Department
of
Canada’s
website
“YCJA
Explained” at:
http://canada.justice.gc.ca/en/ps/yj/repository/index.html

For comments on or contributions to this newsletter
or to be added to our electronic distribution list
contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail
mnovakowski@jibc.bc.ca

National Library of Canada Cataloguing in Publication Data

Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers across
British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2. Police – Legal
status, laws, etc. – Canada – Cases – Periodicals. I. Justice
Institute of British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten - eight.
HV7642.B74I57

363.2'09711'05

C2003-960041-6

40