POLICE ACADEMY

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

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

IN MEMORIAL
On May 17, 2004, 38year-old Cobourg Police
Service Constable Chris
Garrett was stabbed to
death while investigating
suspicious activity in an
abandoned hospital. Two
other officers had just left the scene when they
heard gunshots from the area. When they
returned to the location they found Constable
Garrett suffering from a stab wound to his neck.
He was taken to a local
hospital where he died from
his wounds. An 18-year-old
suspect was arrested later in
the day. He is survived by his
wife and two children.
On May 23, 2004, 32-year-old Ontario Provincial
Police Constable Tyler Boutilier died from
injuries sustained in an automobile accident while
responding to a call near Seeleys Bay. He was
driving southbound on Highway 15 when his
patrol car was struck by a vehicle driving the
opposite way. He was transported to a local
hospital where he succumbed to his injuries.
Constable
Boutilier
had
served with the Ontario
Provincial Police for 4 years
and was a member of the
Emergency Response Team.
He is survived by his wife.
This information was provided with the
permission of the Officer Down Memorial Page
available at www.odmp.org/Canada.

Volume 4 Issue 2
May/June 2004

HIGH SPEED PURSUIT IS A
YCJA ‘VIOLENT OFFENCE’
R. v. C.D.K., 2004 ABCA 77

A young person pleaded guilty
to dangerous driving and
possession of stolen property
after he stole a vehicle and
became involved in a 30 minute high speed
pursuit. He ran two red lights, a stop sign, drove
at speeds up to 120km/h in posted 60km/h
zones, swerved to avoid traffic, and often drove
on the wrong side of the road. Despite driving
over a spike belt deflating all four tires, the
accused did not stop until he collided with a
fence.
At sentencing, the judge classified dangerous
driving as a “violent offence” under the Youth
Criminal Justice Act (YCJA), thereby permitting
custodial sentencing under s.39(1)(a). In her
view, “the violence of a car, speeding through the
city chased by the police is, by anyone’s
definition, violent.” The judge imposed a six
month term of deferred custody, followed by
one month probation. The accused appealed to
the Alberta Court of Appeal arguing that the
custodial sentence was inappropriate.
Sentencing a youth to a custodial sentence
involves a two-stage process. First, the offence
must be a “violent offence”, or other
classification under s.39(1) of the YCJA. Second,
all sentencing alternatives short of custody must
be considered before custody is imposed. In
holding that the offence in this case fell within
the parameters of a “violent offence” under the
YCJA, Justice Ritter for the Alberta Court of
Appeal stated:

HIGHLIGHTS IN THIS ISSUE
In Memorial

Pg.
1

15 Minute ASD Delay Not Required in All
Cases

4

Contemporaneous Recording Desirable, But
Not Legally Required

7

Warrantless Entry Lawful to Investigate
Alarm

8

Safety Search During Drug Investigation
Reasonable

13

Failure of One Search Power Does Not Taint
Another

14

Number Recorder
Unconstitutional

18

Warrant

Provision

Requested Test After 24-Hour Prohibition
Must Be Given
20
Unless otherwise noted, all articles are authored by
Sgt. Mike Novakowski, MA (Abbotsford Police). The
articles contained herein are provided for information
purposes only and are not to be construed as legal or
other professional advice. The opinions expressed are
not necessarily the opinions of the Justice Institute of
British Columbia. “In Service: 10-8” welcomes your
comments on or contributions to this newsletter. If you
would like to be added to our electronic distribution list
e-mail
Sgt.
Mike
Novakowski
at
mnovakowski@jibc.bc.ca
National Library
Publication Data

of

Canada

Cataloguing

in

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.

2

[I]f it is reasonably foreseeable that
criminal conduct may result in bodily harm
that is more than merely trifling or
transitory, the offence is violent for the
purposes of s. 39(1)(a) of the [YCJA]. In
this instance the potential for harm is
obvious. High speed chases are very
dangerous and can easily result in serious
injury or death. I therefore conclude that
the sentencing judge did not err when she
determined that the offence was violent and
that a custodial sentence was available.
[para. 7]
Complete case available at www.albertacourts.ab.ca

DETENTION DEPENDS ON
CIRCUMSTANCES
R. v. Nicholas,
(2004) Docket:C36906, C36188, C36025
(Ont.C.A.)
The accused was approached as a
person of interest in the
investigation of a series of break
and enters and sexual assaults
committed by a person nicknamed the
“Scarborough Bedroom Rapist”. Acting on a
Crime Stoppers tip, police attended his home and
were directed upstairs to his room. He came out
of the bathroom, wearing only a towel, and was
told by the detectives about the investigation,
that he was a person of interest, and that they
wanted to speak with him. He agreed, but wanted
to get dressed first.
After moving to a different room in the house at
the request of police, a detective read a consent
form and the accused agreed to provide a buccal
swab to be used for DNA analysis relative to
break and enter investigations occurring
between June 23 to August 21, 1999. The
detective again read the consent form—this time
with a tape recorder on. The accused said he
understood, was told he could speak with a
lawyer or anyone else, and was asked if he had
any questions. He signed the form, swabbed his

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Volume 4 Issue 3
May/June 2004

mouth, and turned the samples over. The police
left, the samples were analyzed, and a match
between the accused’s DNA and the DNA left at
two crime scenes was established.
A search warrant was subsequently obtained for
his house and a handgun was found in his
bedroom closet. The accused was arrested and
charged with 13 criminal counts related to three
incidents. Later, the police realized that the
time frame outlined in the consent excluded one
of the break and enter incidents occurring on
September 13, 1999. To rectify this, they
obtained and executed a DNA warrant under
s.486.05 of the Criminal Code. Again his DNA
matched the crime scene profiles.
At his trial in the Ontario Superior Court of
Justice, the accused argued that he was
detained at his home and improperly informed
about his right to counsel contrary to s.10(b) of
the Charter. Further, he submitted that he did
not provide an informed and voluntary consent to
the taking of his DNA sample. Thus, he
contended the seizure was unreasonable under
s.8 of the Charter.
The trial judge rejected both of these
arguments. First, he found the accused had not
been detained—the police never assumed
physical control over him and any directions
given were about where the conversation would
take place. With respect to consent, the judge
concluded it was both voluntary and informed.
However, the court found the accused’s s.8
Charter right was breached by the use of the
DNA sample for the September 13, 1999
offence—because it was outside the time frame
specified in the consent—but the evidence was
admitted under s.24(2) of the Charter anyway.
The accused appealed his conviction to the
Ontario Court of Appeal arguing he was detained,
that his right to counsel under s.10(b) of the
Charter was violated, and that his consent in
providing the DNA sample was not valid.

Volume 4 Issue 3
May/June 2004

The Detention
Even though a person is not physically
restrained, they still may be subject to a
detention within the meaning of the Charter if
they are “psychologically detained”. A detention
of this nature arises when the police give a
person a demand or direction and the person
submits or acquiesces to the deprivation of their
liberty because they reasonably believe they
have no choice but to do so. However, in
determining whether a person feels compelled to
comply with the police their testimony is often a
relevant—but not always necessary—factor. In
this case the accused did not testify about
whether he reasonably felt his freedom had
been restrained, leaving it open to the trial
judge to decide whether a detention occurred.
In finding no basis for disturbing the trial
judge’s conclusion, Justice Abella, authoring the
unanimous judgment, stated:
There is no evidence of any kind in this case
indicating
that
[the
accused]
felt
psychologically compelled to speak to the
police or to provide a sample. [The
detective] testified that the police had not
made any demand of [the accused], nor had
they ordered him to do anything, and [the
accused] did not express any concern or
confusion either before sitting down at the
kitchen table or after having the consent
form read to him.
While it was undoubtedly disconcerting to
[the accused], dressed in a towel, to find
the police waiting for him outside his
bathroom door, this alone is an insufficient
fact to ground a finding of detention given
what happened next. He was permitted to
change, and while it is true that the police
waited for him outside his bedroom while he
got dressed, the only direction they gave
him was that they speak in the kitchen
because the light in his bedroom was not
working.
The trial judge found that the suggestion by
the police that they move to the kitchen was
not a demand or direction, and that the

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3

police were polite and non-threatening to
[the accused]. The consent form, which was
read twice to [the accused], clearly stated
that he could refuse to provide the sample.
[The accused] was not arrested at the end
of the interview and the police continued
their investigation. The police were
conducting the consent DNA sampling
procedure with other residents and had over
one hundred persons of interest. [para. 4244]

The Consent
When the issue of consent arises in the context
of a s.8 Charter argument the onus is on the
Crown to establish, on a balance of probabilities,
that the accused waived his constitutional
protection to be secure against unreasonable
search or seizure. The test for consent has been
previously laid down by the Ontario Court of
Appeal in R. v. Wills (1992) 70 C.C.C. (3d) 529
(Ont.C.A.) and involves the following six factors:
• Consent was given, express or implied;
• The person consenting had the authority to
give consent;
• The consent was voluntary—free from police
oppression, coercion, or other conduct
negating the freedom to choose;
• The person was aware of what the police
wanted to do;
• The person was aware of the right to refuse
the police request—which may require, in
some cases, expressly telling someone they
have the right to refuse; and
• The person was aware of the potential
consequences of giving the consent.
In addressing these aspects, Justice Abella
held:
The application of the factors in Wills to
this case demonstrates that the Crown has
established that [the accused] consented to
the seizure of his DNA, at least in relation

4

to the [two incidents occurring between
June 23 to August 21, 1999]. The police
informed [the accused] twice that they
wanted to speak to him about a series of
break-ins and sexual assaults. [The accused]
was informed that the police were
investigating a series of assaults, that he
was a person of interest, that the sample
would be scientifically analysed, and that it
would be compared with evidence obtained
from the crime scenes. The police explicitly
told [the accused] that this comparison was
to enable the police to identify the person
responsible for the crimes and that the
DNA sample could be used in criminal
proceedings against him. The consent form
stated that the police were seeking
permission, and that [the accused] did not
have to provide the sample. [para. 50]

The trial judge’s ruling respecting the
September 13, 1999 incident was also well
reasoned and it was unnecessary to interfere
with it. The accused’s conviction appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

15 MINUTE ASD DELAY NOT
REQUIRED IN ALL CASES
R. v. Einarson,
(2004) Docket: C40288 (OntCA)
The accused was stopped by
police after she was seen
driving out from a bar parking
lot, go towards a R.I.D.E. spot
check, and then make a u-turn before reaching
the checkpoint. An odour of alcohol was
detected on her breath, her eyes were red and
glassy, and her speech slightly slurred. In
response to questioning, she twice denied
drinking. A demand for a breath sample into an
approved screening device was made under
s.254(2) of the Criminal Code and the accused
failed. She was arrested for over 80mg%, read
the breath demand, and subsequently provided
two breath samples over the legal limit.

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Volume 4 Issue 3
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At trial the officer testified he was aware that
if a person had consumed alcohol within 15
minutes of the roadside sample being taken,
residual mouth alcohol could render a “false” fail
and the test would be inaccurate (unreliable). In
the officer’s view, the reason he asked the
questions about alcohol consumption—even
though the accused could have lied—was because
he believed he was obligated to eliminate the
possibility the accused had consumed alcohol
within the preceding 15 minutes before
immediately administering the test. The trial
judge rejected the accused’s arguments that the
officer could not rely on the fail reading because
he should have waited 15 minutes to exclude the
possibility alcohol was recently consumed. The
accused was convicted.
On appeal to the Ontario Superior Court of
Justice, the accused’s conviction was set aside
and a new trial was ordered. Superior Court
Justice Spiegel ruled that because the officer
did not know the accused had not consumed
alcohol within the 15 minutes prior to the sample
being taken, he should have waited 15 minutes to
avoid the possibility of a false fail. Thus, the
officer could not rely upon the potentially
unreliable test result as forming part of his
reasonable and probable grounds for the arrest
and breathalyzer demand. However, a new trial
was ordered to determine if there was still
enough reasonable and probable grounds absent
the ASD fail reading.
The Crown appealed the Superior Court order to
the Ontario Court of Appeal. The question on
appeal became whether the officer was entitled
to rely on ASD results in forming reasonable and
probable grounds when he knew there was a
possibility that the accused had consumed
alcohol within the 15 minutes prior to the
administration of the test which, if she had,
would result in an inaccurate test.
Justice Doherty, authoring the unanimous
judgment of the Ontario Court of Appeal, first

Volume 4 Issue 3
May/June 2004

summarized the impaired driving investigative
regime under the Criminal Code. He wrote:
Section 254(2) is stage one of the two-stage
investigatory process set out in s. 254
intended to facilitate the detection, arrest
and conviction of those committing drinking
and driving offences. Section 254(2) allows a
police officer, on mere suspicion that a driver
has alcohol in his body, to demand that the
driver provide a sample of breath into an
approved screening device. If the driver
refuses to provide that sample, he or she may
be charged with an offence under s. 254(5) of
the Criminal Code. If the driver provides the
sample and registers a "fail" on the screening
device, there are no immediate criminal
consequences. It is not a crime to fail the
screening device, nor can the results be used
to prove that a driver was impaired or that his
or her blood/alcohol level was over the legal
limit. However, if the driver registers a "fail"
on the screening device, that result either
alone or in combination with other observations
made by the officer may provide the officer
with reasonable and probable grounds to
conclude that the driver had committed a
drinking and driving offence. If the officer
comes to that conclusion, he or she may arrest
the driver and make a breathalyzer demand
under s. 254(3). Refusal to comply with that
demand absent reasonable excuse is a criminal
offence under s. 254(5). If the driver complies
with the breathalyzer demand, the results may
be admissible against the driver on a charge of
impaired driving or driving while having a
blood/alcohol level over the legal limit.
Section 254(2) provides a ready, quick and
reliable means by which an officer can
determine whether there are reasonable and
probable grounds to arrest a driver for a
drinking and driving offence and make a
breathalyzer demand. The ready availability of
the roadside screening device also has a
valuable deterrent effect. Clearly, the
roadside screening device serves these
salutary purposes only if it yields accurate
information.
Although a driver who is subject to a demand
under s. 254(2) is detained by the police, that

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5

section has been held to be a justifiable limit
on the driver's right to retain and instruct
counsel under s. 10(b) of the Charter…Section
254(2) is justified under s. 1 of the Charter as
a necessary response to the pervasive problem
of drinking and driving. In holding that s.
254(2) is a justified limitation on individual
constitutional rights, the courts have stressed
the requirement in the section that the sample
be taken "forthwith" thereby significantly
limiting the duration of the individual's
detention. An unwarranted delay, even if
relatively brief, will take the demand outside
of the ambit of s. 254(2) and render the
detention unconstitutional…
A police officer who has cause to make a
demand under s. 254(2) must administer the
test "forthwith" if the detention is to remain
within constitutionally permissible limits. At
the same time, it is well-known by police
officers that where a driver has consumed
alcohol in the 15 to 20 minutes before the test
is administered, the result of the test may be
unreliable because of the presence of residual
mouth alcohol. The whole purpose of
administering the test under s. 254(2) is to
assist the officer in determining whether
there are reasonable and probable grounds to
arrest the driver for a drinking and driving
offence. If the officer does not, or reasonably
should not, rely on the accuracy of the test
results, it cannot assist in determining
whether there are reasonable and probable
grounds to arrest. Administering the test
without delay in those circumstances would be
pointless and would defeat the purpose for
which the test is administered. [paras. 11-14,
references omitted]

Justice Doherty concluded that any assessment
of the timing of the breath samples requires a
flexible approach on a case-by-case basis.
Rather than demanding the officer wait 15
minutes before administering a test when there
is a mere possibility a driver had consumed
alcohol recently, the court must focus on the
reasonableness of the officer’s belief as to the
accuracy of the test when it was administered.
In this case, the unreliability of the test was

6

speculative at best, considering what information
the officer had. In summary, the court held:
If an officer honestly believes that some delay
is necessary to obtain an accurate sample and
if that belief is reasonable in the
circumstances, a test administered after an
appropriately brief delay remains within the
scope of s. 254(2). The fact that an officer
had observed the driver leaving a bar moments
earlier is a circumstance that has relevance to
the question of whether it was reasonable for
the officer to delay the taking of the test in
order to obtain an accurate sample.
The flexible approach to s. 254(2) accepts
that different officers may assess similar
circumstances differently in deciding whether
some brief delay in the administration of the
s. 254(2) test is necessary. Indeed, the
reasonable and probable standard must reflect
the particular officer's assessment tested
against the litmus of reasonableness. In
considering whether to rely on test results
absent some brief delay, one officer may give
more significance to the fact that the driver
was seen leaving a bar just before he or she
was stopped (particularly where the driver
admits drinking in that bar) than another
officer might give to that fact. The first
officer might delay the taking of the test for
an appropriately short time while a second
officer may proceed without delay. Neither
officer has necessarily acted improperly. If
the officer decides to delay taking the test
and that delay is challenged at trial, the court
must decide whether the officer honestly and
reasonably believed that an appropriately
short delay was necessary to obtain a reliable
reading. If the officer decides not to delay
the administration of the test and that
decision is challenged at trial, the court must
decide whether the officer honestly and
reasonably believed that he could rely on the
test result if the test was administered
without any delay.
[T]he mere possibility that a driver has
consumed alcohol within 15 minutes before
taking the test does not preclude an officer
from relying on the accuracy of the statutorily
approved screening device. Where an officer

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May/June 2004

honestly and reasonably concludes on the basis
of available information that he can form no
opinion as to whether the driver consumed
alcohol within the prior 15 to 20 minutes, the
officer is entitled to rely on the accuracy of
the statutorily approved screening device and
administer the test without delay. That is not
to say that another officer might not assess
the same situation differently and have
legitimate concerns about the reliability of a
test administered without a brief delay and
act accordingly. In each case, the officer's
task is to form an honest belief based on
reasonable grounds about whether a short
delay is necessary to obtain a reliable reading
and to act on that belief. [paras. 33-35,
references omitted]

The appeal was allowed and the conviction and
sentence imposed at trial were restored.
Complete case available at www.ontariocourts.on.ca

CONTEMPORANEOUS
RECORDING DESIRABLE, BUT
NOT LEGALLY REQUIRED
R. v. Ducharme, 2004 MBCA 29
The accused was arrested as
the “get-away driver” of a car
used in a shotgun robbery of a
Winnipeg hotel lounge. He was
the last of five suspects
apprehended in the robbery. He was arrested,
handcuffed, cautioned, and transported to the
police station by two police officers. One of the
officers made notes of any conversations during
this interval. The accused was paraded before
the station duty sergeant and then placed in an
interview room for an hour before being turned
over to two Major Crimes Unit detectives. He
was interviewed for 35 minutes by the
detectives, which was recorded in five pages of
writing. Following this question and answer
interview, the accused said he was willing to give
a more complete statement on videotape. He
subsequently provided a 26 minute statement
that was contemporaneously recorded on video.

Volume 4 Issue 3
May/June 2004

At trial, all three statements—the notes made
during the arrest and transport, the written
preliminary interview, and the videotaped
statement—were relevant to the charges against
the accused. However, the accused argued that
the Crown had failed to satisfy the confessions
rule in establishing the statements made to
police were voluntary beyond a reasonable doubt.
The accused testified the police extracted his
statements by using physical force and
intimidation—thus creating an atmosphere of
oppression—by threatening to charge his
common law wife, which would cause Child and
Family Services to take his children. After
weighing credibility, the trial judge ruled the
statements admissible and a conviction was
entered. However, the judge was troubled with
the fact that the first interview was not
recorded on audio or video tape, even though the
equipment and facilities were readily available.
The accused appealed to the Manitoba Court of
Appeal arguing, in part, that the trial judge
erred in admitting the statements because no
contemporaneous recordings were made—other
than the final interview—to assess the
voluntariness of the statements. In short, the
accused was suggesting that without an
electronic recording it must automatically be
concluded the confession was improperly
obtained.
Justice Kroft, delivering the judgment of the
Manitoba Court of Appeal, dismissed the
accused’s appeal. In summarizing the current
state of recording interviews, he noted:
It is only recently that we reached a stage in
criminal investigation where it can be said that
when an accused person is in police custody,
there will usually be no reason why interviews
and interrogations cannot be recorded
electronically
and,
more
specifically,
videotaped. Such a requirement is economically
and
technically
feasible.
A
statutory
requirement that videotaping, perhaps subject
to exceptions, becomes a prerequisite of
admissibility and would be capable of

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7

enforcement.
Indeed,
the
Homicide
Department of the Winnipeg Police Service
already follows a self-imposed protocol for
videotaping the statements that go on in its
interview rooms.
If such a policy were enshrined in law, it would
protect accused persons from actual or
threatened force or intimidation. At the same
time, it would limit the possibility of police
misconduct and protect them from false
accusations of abuse or oppression. The
trouble for all of us, including trial and
appellate courts, is that there are no statutory
provisions or Supreme Court dicta imposing the
policy which we are now addressing. [paras. 2223]

Although concurrent videotaping of a confession
is usually desirable, the court rejected the
contention
that
the
contemporaneous
videotaping of an interview was a legal
requirement before it could be declared
voluntary. In other words, “non-recorded
interviews need not be automatically treated as
suspect”.
However, there are definite
advantages to videotaping statements. Verbal
and physical interactions are recorded allowing a
judge to know exactly what has transpired,
greatly assisting them in assessing voluntariness.
Any air of suspicion can be alleviated by
providing a neutral, reliable, and accurate
recording. After reviewing case law and other
materials, Justice Kroft held:
[T]he case before us has never been about the
desirability of videotaping. The trial judge
forcefully expressed his views and lest there
be any doubt, it seems inconceivable to me
that one could argue against the practice. The
difficulty is that until either the Supreme
Court articulates or Parliament legislates the
duties of the police and lays out a protocol to
be followed, the common law definition of
voluntariness will remain in effect. That being
the case, it cannot be said that the failure to
videotape or electronically record will
automatically mean the exclusion of the
evidence on a voir dire.
………

8

All of the foregoing leads me to the inevitable
conclusion that the trial judge dealt with his
dilemma in the only way he could. The
concurrent video transcription of confessions
is definitely to be preferred. It is, however,
not an absolute legal requirement.
The
admissibility of confessions and inculpatory
statements must be determined by a trial
judge on the conclusion of a voir dire. If his or
her findings of fact are not patently
unreasonable and, if no error in law can be
found, then an appellate court ought not to
intervene by reason only of its preference for
a recorded statement and the conviction
appeal should fail. [para. 46, 48]
Complete case available at www.canlii.org.

WARRANTLESS ENTRY
LAWFUL TO INVESTIGATE
ALARM
R. v. Johnston, 2004 BCCA 148
At about 8pm a police officer
responded to an alarm at a multiunit commercial building. He
arrived about three minutes
after the dispatch, although unknown to the
officer 45 minutes had elapsed from the time
police received the alarm. He walked around the
building to determine if the doors were locked,
knocked on a door, and was admitted by a tenant,
Mr. Ghannadzadeh, who told the officer that he
believed the alarm was triggered by people
upstairs doing tests. Mr. Ghannadzadeh asked
the officer to check other parts of the building.
The officer checked other doors and found a
suite (#1401-B) with an unlocked door. He
identified himself as the police, entered, and
tripped the alarm. He opened a door at the rear
of the suite and found a 100 plant marihuana
grow operation.
Mr. Ghannadzadeh informed the officer of the
accused’s tenancy in suite #1401-B. The officer
left the suite and saw a vehicle drive to the rear
of the building. He was told by Mr.

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Volume 4 Issue 3
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Ghannadzadeh that the vehicle belonged to the
tenant of suite 1401-B. However, by the time the
officer approached the vehicle, the driver was
gone. The officer went back to the suite and
knocked on the door to determine if there was
any connection between the accused and the
initial alarm call. The accused answered,
identified himself on request, and admitted he
was part owner of the business operating out of
the suite which housed the grow operation. The
accused was arrested, provided his s.10(b)
Charter right to counsel, and asked if he wished
to contact a lawyer. He replied, “No, I’d like to
call my wife”, but was denied the opportunity.
The officer then attended the police station and
obtained a search warrant. The accused was
subsequently charged with producing marihuana
and marihuana possession for the purpose of
trafficking.
At trial, the officer testified he detained the
accused to determine why he had gone into the
building and turned off the alarm. As for not
advising the accused of his Charter rights
before engaging in conversation, the officer said
he was trying to confirm information. With
respect to denying a phone call to his wife, the
officer said the accused did not tell him he
wanted to call his wife in order to retain counsel.
The officer testified the accused had the right
to call a lawyer, not his wife.
The trial judge ruled that the officer’s
warrantless entry was lawful—to ensure the
security of the building for the safety of
persons who might be present. As well, the
officer acted in good faith. He acted
appropriately and went no further than was
reasonable. Also, the officer attended as
promptly as reasonable and did not have to
inquire into the immediacy of the alarm or the
resources available. The trial judge also said:
The peace officer was granted entry into the
building by another tenant of the building.
That tenant suggested a possible area of
interest to search, and the peace officer
gained access to premises of the accused

Volume 4 Issue 3
May/June 2004

through an unlocked door, which activated the
alarm for a second time.

The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the
officer’s initial entry into the suite was unlawful
and that his s.10(b) Charter right was breached.

The Entry
The accused suggested that since there was no
criminal activity taking place when the officer
arrived, his warrantless entry into the premises
was a violation of s.8 of the Charter. In
rejecting this view, Justice Oppal for the
unanimous appeal court held:
In this case, the officer was not acting
unlawfully when he entered the premises
without a warrant. Although the initial alarm
had sounded some 45 minutes prior to his
arrival, he was apparently under the impression
that the alarm had sounded 10 minutes prior to
his arrival. In any event, he was lawfully
entitled to investigate what he reasonably
believed to be a break and enter. Mr.
Ghannadzadeh had told him that there were
other persons in the building and asked him to
check other parts of the building. The officer
might have been subject to criticism had he
left after his initial conversation with Mr.
Ghannadzadeh during which the latter advised
him that the alarm had sounded some 45
minutes earlier. It should be noted as well
that at that stage the officer had no reason to
believe that there was a marihuana grow
operation on the premises. [para. 11]

The Right to Counsel
The appeal court also dismissed the accused’s
submission that the judge erred in failing to find
a s.10(b) Charter breach because he was not
allowed to call his wife. The court concluded:
There is no doubt that immediately after the
[accused] was detained the officer apprised
him of his right to retain and instruct counsel
without delay under s. 10(b). The [accused]
advised the officer that he did not wish to
contact a lawyer, but rather, that he wished to

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9

contact his wife. There would be some validity
to the [accused’s] argument on this issue had
he told the officer that he wished to contact
his wife so that she might be able to arrange
counsel for him. However, he did not do that.
The law is that a person who is arrested or
detained and has been advised of his right to
counsel under s. 10(b) must assert that
right. [The Supreme Court of Canada has]
held that s. 10(b) imposes two duties on the
police in addition to the duty to inform an
arrested or detained person of his or her
rights. The first duty is to give the person a
reasonable opportunity to exercise the right
to retain and instruct counsel without delay.
The second duty is to refrain from attempting
to elicit further evidence from the detainee
until he or she has had a reasonable
opportunity to retain and instruct counsel.
However, there is a caveat attached to the
police obligations: the detained person must be
reasonably diligent in attempting to obtain
counsel. If the detained person is not
reasonably diligent, then the correlative duties
imposed upon the police to refrain from
questioning him or her are suspended.
In this case the [accused] did not tell the
police that he wished to speak to a lawyer.
[para. 25-26, references omitted]
Complete case available at www.courts.gov.bc.ca.

LAUNDERING DOES NOT
INCLUDE RECEIVING GOODS
R. v. Daoust & Bois, 2004 SCC 6
In an effort to establish
whether the two accused were
laundering merchandise at a
pawn shop, an undercover police
officer approached them on four occasions to
sell “criminally obtained goods”—two new video
recorders, a used video recorder, two new
telephones, and a new alarm clock borrowed from
a merchant assisting in the investigation.
Although the goods were not actually stolen, the
officer hinted they were “hot” or otherwise

10

illegally obtained. In total, the officer received
$60 for the goods.
At their trial in the Court of Quebec, they were
convicted of laundering proceeds of crime under
s.462.31 of the Criminal Code. In the judge’s
view, the transfer of possession of the property
constituted the actus reus of the offence. The
mens rea, in the judge’s opinion, included the
intent to conceal or convert the property along
with the knowledge or belief the property was
obtained illegally.
The accused appealed to the Quebec Court of
Appeal, which overturned the convictions and
substituted acquittals. The appeal court ruled
the actus reus had not been satisfied. Justice
Fish held that the possession of the property
had not been transferred nor did the accused
intend to “convert”—change, transform, or
alter—the purchased merchandise. Rather, he
concluded the accused were going to sell the
property rather than cover up a supposed crime.
The Crown appealed to the Supreme Court of
Canada. In a unanimous judgment, the seven
members of the Supreme Court dismissed the
appeal.

The Actus Reus
In the indictment, the accused were charged
with transferring the possession of property
with the intent to conceal or convert it under
s.462.31(1)(a) of the Criminal Code. However, the
French Criminal Code version of this offence is
narrower that the English version. The French
version limits the transfer of property to an
exhaustive list of enumerated acts, while the
English version adds the expression “or
otherwise deals with” which would open up other
acts of laundering beyond those listed.
These inconsistencies in the actus reus between
the French and English version required the
court to apply the principles of bilingual
statutory interpretation as follows:

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Volume 4 Issue 3
May/June 2004

• determine whether there is discordance
between the two versions;
• if the two versions are irreconcilable,
determine whether one or both versions are
ambiguous—reasonably capable of more than
one meaning. If there is ambiguity in only one
version, they must be reconciled to a common
meaning—the version that is plain and not
ambiguous;
• if neither version is ambiguous, the common
meaning is usually the narrower meaning of
the two; and
• determine whether the common meaning is
consistent with Parliament’s intent.
In applying these rules to this case, the Supreme
Court of Canada held that the two versions were
identical except for the English addition of “or
otherwise deals with”. Therefore, the more
restrictive French version prevailed.
The next question the court examined was
whether the “transfer of possession” of
property in the laundering proceeds of crime
context includes buying property with the
intention of converting it. In other words, does
s.462.31 apply to the receiver of property? The
court answered no.
In the court’s view, “[t]he activities criminalized
by this provision all concern the same person,
that is, the person who originally has the object
in his or her possession and seeks to dispose of
it.” Section 354(1) of the Criminal Code, on the
other hand, “is aimed specifically at persons who
receive or accept property despite knowing it to
be of illicit origin.” Thus, as Justice Basterache
authoring the unanimous judgment noted, “buying
or receiving property or similar acts involving the
person who accepts or acquires the property do
not constitute elements of the offence of
laundering proceeds of crime.” The Court ruled:
In the present case, the evidence shows
that the [accused] bought the merchandise
believing it to be stolen. However, in light
of the foregoing, the act of purchasing this

Volume 4 Issue 3
May/June 2004

merchandise is not the equivalent of
"transfers the possession of", which is the
element of the offence specified in the
indictment and which the Crown must prove.
For this reason, it is my opinion that the
[accused] did not transfer the possession of
the property within the meaning of s.
462.31. [para. 53]

The Mens Rea
The mens rea of laundering proceeds of crime
includes the intent to conceal or convert
property or proceeds and the knowledge or
belief that the property or proceeds were
derived from a designated offence. The Quebec
Court of Appeal erred in holding that an intent
to disguise must be proven to establish mens rea
under s.462.31. Justice Bastarache wrote:
The verb "to convert", in my view, cannot be
given the meaning of "disguise" or "conceal"
unless there is an express indication to that
effect in the enactment. Absent this, the
term "convert" must be given its ordinary,
literal meaning. While Parliament might have,
in enacting s. 462.31, intended to prohibit
acts to disguise or conceal the illicit origins
of property or its proceeds, this was only a
secondary purpose that was part of a much
broader one, that is, to ensure that crime
does not pay…Section 462.31 has a broad
deterrent effect, in that it is designed to
prevent offenders from profiting from their
crimes or from engaging in illegal activities,
an objective that has nothing to do with
disguising the origins of property or its
proceeds.
Moreover, to read an intent to disguise into
"convert" would mean that the offence of
laundering proceeds of crime would apply
only to clandestine transactions, while
leaving the same acts, if committed openly,
unpunished…
In short, I believe Parliament's choice of
words is indicative of its intention to forbid
"conversion" pure and simple, thereby
ensuring that those who convert property
they know or believe to have illicit origins,
regardless of whether they try to conceal it

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11

or not, do not profit from it.
I am
therefore of the opinion that Parliament's
intent and purpose in enacting s. 462.31
favours an interpretation of the word
"convert" that does not include an intent to
disguise. The interpretation given by the
Quebec Court of Appeal to the term
"convert" is too narrow and excludes from
the scope of s. 462.31 activities that
Parliament intended to prohibit.[paras. 6365, references omitted]

The appeal was dismissed.
Complete case available at www.scc-csc.gc.ca.

DID YOU KNOW
…that as of January 1, 2004
the RCMP was 22,239 strong.
Personnel breakdown, including
all ranks and civilians, was as
follows1:
Position
Commissioner
Deputy Commissioner
Assistant Commissioner
Chief Superintendent
Superintendents
Inspectors
Corps Sergeant Major
Sergeant Major
Staff Sergeant Major
Staff Sergeants
Sergeants
Corporals
Constables
Other regular members
Civilian Members
Public Servants

Strength
1
5
24
56
135
331
1
7
1
704
1,568
2,777
10,039
4
2,585
4,001

Note-able Quote
The best way to succeed in life is to act on the
advice you give to others—Unknown

1

Source: http://www.rcmp-grc.gc.ca/html/organi_e.htm [May 17, 2004]

12

DESIGN, NOT POTENTIAL
USE, DETERMINES LEGALITY
R. v. Jordan, 2004 BCCA 139
The accused was charged with
possession of a prohibited
weapon—pepper
spray—under
s.91(2) of the Criminal Code
after police detained him while investigating an
attempted break-in of a house in a nearby
residential area. When requested by the police to
empty his pant pockets, the accused produced a
can of pepper spray labelled “First Defence
Aerosol Pepper Protector MK-3” with the
following warning, “The use of this substance or
device for any purpose other than self-defence is
a felony under law. The contents are dangerous.
Use with care.” Also, the back of the can
indicated the contents contained a 10% solution
of Oleoresin Capsicum—the active ingredient.
A prohibited weapon is defined under s.84(1) as
including a weapon prescribed by Regulations to
be prohibited. One such weapon is described in
the Regulations as follows:
Any device designed to be used for the purpose of
injuring, immobilizing or otherwise incapacitating any
person by the discharge therefrom of
(a) tear gas, Mace or other gas; or
(b) any liquid, spray, powder or other substance that
is capable of injuring, immobilizing or otherwise
incapacitating any person.

At the accused’s trial in British Columbia
Provincial Court an expert testified he examined
the can and its contents, concluding it was a
prohibited weapon because it was designed to
be used for and was capable of immobilizing or
otherwise incapacitating any person. The expert
also testified, however, that had the can been
“bear spray”, it would have been legal since the
manufacturer designs them for use against
bears, not people.
The trial judge was not satisfied the Crown had
proven the actus reus of the offence. He could
not reconcile the difference between a person

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Volume 4 Issue 3
May/June 2004

having lawful possession of a larger can of bear
spray and the accused unlawfully possessing a
smaller can containing the same substance. In
his view, the size and shape of the canister was
insufficient to differentiate between the
criminal possession of the pepper spray by the
accused and the lawful possession of bear spray,
for example, by a prospector. The accused was
acquitted.
The accused’s acquittal was successfully
appealed by the Crown to the British Columbia
Supreme Court. The Supreme Court justice
substituted a conviction, opining that the
evidence clearly showed that the canister found
in possession of the accused was unequivocally a
prohibited weapon. As for the mens rea
component of the offence, the Supreme Court
held that knowledge of the prohibited
characteristics could be inferred. The accused
further appealed to the British Columbia’s top
court. He argued that the Supreme Court
decision found an error on a question of fact,
which it was not entitled to do.
In allowing the appeal, the British Columbia
Court of Appeal concluded the uncontradicted
evidence of the expert accepted by the trial
judge was that the canister in possession of the
accused satisfied the definition of a prohibited
weapon under the Regulations. However, the
trial judge was not satisfied it was a prohibited
weapon because the same substance sold as
"bear spray" was not. This was an error Justice
Ryan ruled, stating:
In my view the trial judge erred in basing his
decision
on
two
legally
irrelevant
considerations: first, that the substance in
both containers could be used to incapacitate
humans; and second, that possession of the
larger canisters of "bear spray" was not
illegal. What is prohibited is an item designed
to be used to incapacitate humans; that the
substance in both types of canister may be
used to incapacitate humans is immaterial.
It was also wrong for the trial judge to ask
whether the smaller can of spray should be

Volume 4 Issue 3
May/June 2004

illegal to possess when a larger canister of
the same substance is not. What should or
should not be criminalized is a question for
Parliament. [paras. 20-21]

However, since the trial judge only addressed
the actus reus of the offence and not the mens
rea it was wrong for the Supreme Court justice
to enter a conviction. As a result, the conviction
was set aside and a new trial was ordered.
Complete case available at www.courts.gov.bc.ca.

SAFETY SEARCH DURING DRUG
INVESTIGATION REASONABLE
R. v. Bercier, 2004 MBCA 51
A
police
officer
received
information from a reliable and
confidential informant that two
unknown white males in their late
teens operating a white Honda Accord would be
buying “Crystal Meth” between 4:00 pm and 5:00
pm from another male. This drug transaction
would reportedly occur that day outside the Club
Regent Hotel and Casino. Police attended the
hotel after 5:00 pm and saw a white Honda
Accord parked in front of the hotel entrance.
One young male was in the driver’s seat of the
Honda while a second young male stood along side
the car speaking on a cellular telephone. The
officer concluded that what he saw was what the
informant described.
The officer approached and began to inform the
accused, the male standing outside the car, that
they had information he was involved in a drug
transaction. The accused started to back away.
The officer, thinking the accused may flee or
engage in a confrontation, took hold of him by
the forearm. He tried to further pull away, but
was subsequently handcuffed for safety
reasons—he was then pat frisked for weapons.
Feeling something in the front pouch of the
‘kangaroo’ pullover sweatshirt, the officer looked
inside the pouch and saw a clear plastic baggie
containing marihuana. After he was arrested and

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13

searched further, police found a variety of drugs
and cash.
The accused was charged with possession of
marihuana, cocaine, ectasy, and proceeds of
crime. The trial judge found the officer acted
properly in detaining and searching him. The
police were not acting on a hunch, but had real
information to act upon. The search, as well, was
reasonable and the evidence discovered was
admissible. Not satisfied with the outcome, the
accused appealed his conviction to the Manitoba
Court of Appeal arguing the officer lacked an
articulable cause for the detention, thereby
rendering it arbitrary, and also that the safety
search exceeded its permissible scope.
In dismissing the accused’s conviction appeal,
Justice Monin of the Manitoba Court of Appeal
found the detention and search lawful, writing:
By acting on the information made available
to them by the informant, there is no
question that [the police] were acting within
the general scope of the duties of a police
officer to prevent crime and to protect life
and property when [the officer] temporarily
detained the accused to further the
investigation. Further, the interference of
the liberty of the accused was necessary for
the carrying out of the police duty and, in my
view, was reasonable having regard to the
nature of the liberty interfered with and the
importance of the public purpose served by
the interference. When analyzing the words
spoken by [the officer] and his judgment call
to handcuff the accused, it is important to
keep in mind the brief time frame and the
circumstances of the encounter. The police
were investigating a drug transaction. It is
therefore not surprising that [the officer]
was concerned about the possibility of
weapons and was uncertain about what the
accused was going to do. The reasonableness
of [the officer’s] actions must be assessed in
that context. And it is for these reasons
that the patdown search for safety reasons
met the two branches of the Waterfield test
as well.
………

14

Furthermore, I am satisfied on the facts of
this case that there existed the basis to
have an "articulable cause" if one is in fact
required. The conduct of the police was not
an indiscriminate and discretionary exercise
of the police power. The actions of the police
were not as a result of a hunch. This was not
a subjectively based assessment made by
police based on irrelevant factors such as
the accused's sex, colour, age or ethnic
origin. The tip received was not from an
unknown source, and the details provided
were sufficient for one to conclude that
there existed compelling current information
that could reasonably lead the officers to
suspect that the accused was or was about to
be involved in criminal activity.
Complete case available at www.canlii.org

FAILURE OF ONE SEARCH
POWER DOES NOT TAINT
ANOTHER
R. v. Andrews, 2004 MBCA 60
Police received information from
a
registered
confidential
informant that the accused was
bringing cocaine from Mexico to
British Columbia and would be
distributing it in Winnipeg. Other information
provided by the informant to the police was
confirmed as accurate through a number of
independent sources. About a month later, the
police received further information the accused
was enroute to Winnipeg with cocaine. A
previously obtained dial number recorder
warrant tracked the accused’s cell phone across
western Canada. The next day the police stopped
and arrested the accused as he was entering
Winnipeg. After being informed of his Charter
rights and told he could call a lawyer at the
police office, he was asked how many kilograms
of cocaine he had. The accused replied, “Just
the two in the cooler.”
The police prepared an information to obtain a
search warrant under s.11 of the Controlled

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Volume 4 Issue 3
May/June 2004

Drugs and Substances Act (CDSA), which

included the informant information, the
confirmation of that information, and the
questioning and answer of the accused. The
warrant was granted and police found two
kilograms of cocaine in a cooler in the accused’s
van.

At his trial, the accused argued his rights were
breached under s.10(b) of the Charter when the
officer asked him about the cocaine before he
had an opportunity to call a lawyer. He submitted
that using the conversation in the information to
obtain rendered the warrant unlawful and
therefore the evidence should be excluded
under s.24(2). Although the trial judge agreed
the accused’s s.10(b) right was violated, he
concluded that even without reference to the
accused’s comment about the location and
quantity of cocaine there still existed a
sufficient basis for the search warrant.
The accused appealed to the Manitoba Court of
Appeal contending that a sworn information
under s.11 of the CDSA requires the informant
information support the commission of offences
current in time, rather than offences to be
committed in the future—such as being in
possession of a controlled substance at a later
point in time.
Without addressing this s.11 argument, the
Manitoba Court of Appeal examined whether the
common law authority of search incidental to
arrest allowed for the search. The accused
submitted that it did not, since the police opted
to obtain a search warrant and could not now
rely on the incidental search power to justify
the search. In the accused’s view, if the warrant
was unlawful, as he submitted, the search could
not be made valid under a different search
power. The Manitoba Court of Appeal disagreed
and held the search lawful as an incident to
arrest. The court stated:
In the present case…the fact that the search
took place subsequent to the arrest, when the
vehicle was brought to police headquarters,

Volume 4 Issue 3
May/June 2004

does not negate the common law right of
search for the purpose of discovering
incriminating evidence…
Where there are two parallel and concurrent
means of effecting a lawful search, and one
fails for some procedural reason, that failure
does not taint the other process which is not
found to be defective. [para. 17-18]
Complete case available at www.canlii.org

IMPROPELY DEMANDED ASD
SAMPLE CANNOT BE USED FOR
GROUNDS
R. v. Woods, 2004 MBCA 46
After stopping the accused
driving at 10:30 pm, police noted
a strong odour of liquor and
demanded a roadside breath
sample into an approved screening device under
s.254(2) of the Criminal Code. The accused
refused, was arrested for failing to comply with
the demand, and was informed of his right to
counsel and given the police warning. The
accused said he wanted to speak with a lawyer
but was told he would have to wait until at the
office, since there was no cell phone available in
the police car.
The officer waited for a tow truck which caused
a delay in arriving at the police station. After
speaking with a lawyer at 11:24 pm, the accused
now told the officer he wished to provide a
sample. The ASD demand was read again and the
accused failed. He was then arrested for
impaired driving and given a breathalyser
demand, his right to counsel, and police warning.
He again spoke with a lawyer, subsequently
provided two breath samples—both 120mg%—
and was charged with driving over 80mg% and
impaired driving.
At his trial in Manitoba Provincial Court the
accused was convicted of driving over 80 mg%
and a stay of proceedings was entered on the
impaired driving charge. The trial judge found

www.jibc.bc.ca

15

that the ASD sample had been taken
“forthwith”—as s.254(2) of the Criminal Code
requires—because the refusal was continuous
from the time he was stopped until one hour and
10 minutes later when he changed his mind at the
Public Safety Building. Thus, in her opinion the
sample provided was in response to the demand
made at the roadside.
On appeal to the Manitoba Court of Queen’s
Bench, the appeal justice concluded the
accused’s rights under s.8 of the Charter had
been breached. In the appeal justice’s view, the
breath sample ultimately provided was in
response to the demand made at the Public
Safety Building—not the one made at the
roadside—and
went
well
beyond
that
contemplated by the meaning of “forthwith”.
Consequently, a verdict of acquittal was entered.
The Crown appealed, this time to the Manitoba
Court of Appeal.
Section 254(2) of the Criminal Code provides for
the testing of the presence of alcohol in a
vehicle operator’s breath provided a peace
officer reasonably suspects they have alcohol in
their body. Under this section, a peace officer
may make a demand requiring the person
forthwith provide a sample of their breath into
an approved screening device. As Manitoba’s top
court noted, this section provides “a convenient
tool for confirming or rejecting a suspicion
regarding the commission of an alcohol-related
driving offence. It is a screening test to be
administered immediately and with minimal
inconvenience to drivers who are being
arbitrarily detained.” Justice Philp, authoring
the unanimous judgment continued:
When a demand is made by a peace officer to
a person pursuant to s. 254(2), it is the
providing of the breath sample by the person
that must be done "forthwith." That is the
plain meaning of the words of the section.
However, the courts have construed the
provision to require the peace officer, as well,
to act with promptitude and to make the
demand immediately after the person is
stopped. [para. 19]

16

Since the accused provided the sample one hour
and 10 minutes after the stop, it could not be
said the sample was taken forthwith. Rather, the
ASD sample provided at the Public Safety
Building was a consequence of the invalid second
demand. Justice Philp wrote:
In my view, the accused's "agreement" (that is
the finding the trial judge made) to provide a
breath sample for an ASD test at the Public
Safety Building, when he was under arrest and
no longer had care or control of his vehicle,
was not in response to the demand that had
been made at the roadside over an hour
earlier. That earlier demand was exhausted
when the accused had refused to comply and
was placed under arrest for so doing. The ASD
sample was not provided "forthwith" even
under the broadest interpretation of the
word. The fact that the accused's refusal was
the reason why the sample had not been
provided earlier does not bring the test within
the ambit of the section.
I am further of the view that the demand for
an ASD sample that [the police] made at the
Public Safety Building fell outside the ambit of
s. 254(2), both temporally and spatially, and
was not authorized by it. The accused had no
obligation to comply with that demand and
would not have committed an offence if he had
refused to do so. [para. 23-24]

This fail reading therefore could not be relied
upon as part of the reasonable and probable
grounds required for a breathalyser demand.
The breathalyser analysis evidencing the
concentration of alcohol in the accused’s blood
was inadmissible and the Crown’s appeal was
dismissed. The Court also noted, however, that
there was no apparent reason why the accused
could not have been prosecuted for the initial
roadside refusal.
Complete case available at www.canlii.org.

Note-able Quote
It is better to know less and apply what you
know, than to know more and do nothing—
Unknown

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Volume 4 Issue 3
May/June 2004

BAD JOKE NOT INTENDED TO
OBSTRUCT OFFICER
R. v. Rutherford, 2004 ABPC 64
The accused was released from
prison on statutory release. His
conditions included abstaining
from all intoxicants and a no
contact order with his wife. The police
responded to a tip that he and his wife were
about to check into a hotel. They located the
accused at a bus shelter about 12 blocks from
the hotel and asked him his name. He gave a
false name, but the officer recognized him. He
was arrested and police found crack cocaine in
his possession. The accused was charged with
being unlawfully at large, obstructing a peace
officer, and possession of a controlled
substance.
At trial the accused invited a conviction for
possessing the cocaine, but argued there was
insufficient evidence for being unlawfully at
large or for the obstruct charge. He submitted
that he was joking when he gave the false name
and it was obvious the police knew who he was
when they approached him at the bus shelter.
The accused testified he had contact with his
wife contrary to the statutory release
conditions, but argued that a breach of that
condition did not render him at large, in the
sense of removing himself from the custody of
the correctional authorities.

Unlawfully at Large
Section 145(1)(b) of the Criminal Code creates a
hybrid offence for a person to be at large
without lawful excuse. Alberta Provincial Court
Justice Meagher concluded that a breach of a
condition designed to control inmate behaviour
on release, such as the no contact order, does
not necessarily amount to an intention to
abscond or withdraw oneself from the custody
of correctional authorities which would render
the person unlawfully at large. In other words,
merely breaching a behavioural condition is

Volume 4 Issue 3
May/June 2004

insufficient to sustain a conviction for being at
large without lawful excuse. However, failing to
return to a designated institution as required or
failing to remain within a designated area may
bring liability under this section. Justice
Meagher stated:
In order for the accused to be convicted [for
being unlawfully at large] the Crown must
prove beyond a reasonable doubt that this
accused intended to withdraw himself from
the control, in the sense of custody, of the
correctional authorities. In this case, merely
because the accused breached the no contact
provision in his Statutory Release Certificate,
I am not prepared to find beyond a reasonable
doubt that he intended to withdraw himself
from the custody of the correctional
authorities so as to make himself “ at large”,
within the meaning of section 145( 1)( b) of the
Criminal Code of Canada. While this breach of
condition may have affected the control
exercised over this accused by the
correctional authorities, thereby subjecting
him to other remedies including the suspension
of his parole, this particular loss of some
degree of control does not amount to a
withdrawal from the custody of the
correctional authorities. … [para. 24]

Obstruction
A conviction for obstruction requires the Crown
prove that the purpose of the accused’s action
was to obstruct the peace officer. In this case,
the court accepted “the accused’s evidence that
his intention in giving a false name was a joke,
albeit a bad joke, and not for the purpose of
wilfully obstructing the peace officer.”
In
finding the accused not guilty, Justice Meagher
held:
The onus is on the Crown to prove beyond a
reasonable doubt, that at the time the
accused gave the false name to the police, the
purpose of the accused’s action was to
obstruct the peace officer. It does not matter
that the result was that the peace officer was
not obstructed in the execution of his duties.
However, the explanation given by the accused,
that he was only joking and that it was obvious

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17

that the police officers knew who he was,
creates a reasonable doubt that he intended
to obstruct the peace officer by giving a false
name. [para. 25]

However, the accused was convicted of the drug
offence.
Complete case available at www.albertacourts.ab.ca

NUMBER RECORDER WARRANT
PROVISION
UNCONSTITUTIONAL
R. v. Nguyen et al, 2004 BCSC 76
The police obtained a warrant
under s.492.2(1) of the Criminal
Code to record telephone
numbers called from and made
to three identified target
telephones. These recorded phone numbers then
provided a basis on which to obtain numerous
telephone records. The four accused were
subsequently charged jointly with conspiracy to
traffic in cocaine and heroin.
The provision of s.492.2(1) allows the police to
seek a warrant for the installation, maintenance,
monitoring, and removal of a number recorder
provided a justice is satisfied there are
reasonable grounds to suspect an offence
against a federal act has been or will be
committed and that the use of the number
recorder would assist the investigation.
However, the standard of reasonable grounds to
suspect—or reasonable suspicion—did not meet
the minimum standard of reasonable belief, the
constitutional threshold for searches and
seizures under the Charter in connection with
criminal investigations. As a result of this
inconsistency, Justice Halfyard held the number
recorder warrant provisions of no force or
effect.
Complete case available at www.courts.gov.bc.ca.

18

ABSENT FACTS SUGGESTING
OTHERWISE, NO NEED TO
ASK IF ALCOHOL RECENTLY
CONSUMED
R. v. Szybunka, 2004 ABPC 52
A police officer working a StopCheck
program
pulled
the
accused and his two passengers
over after observing the vehicle
drive from a nightclub parking
lot. His eyes were red and an odour of liquor
emanated from him. The officer suspected the
accused was impaired and gave a demand for a
roadside sample. As a result of the fail reading,
the officer formed the opinion he had
reasonable grounds to believe the accused was
impaired. He was arrested and taken to a breath
technician where he advised the police he had his
last drink five minutes before the stop.
At his trial in Alberta Provincial Court, the
accused maintained that police could not rely on
the roadside screening fail because the officer
did not satisfy himself that no alcoholic
beverage had been consumed within 15 minutes
of the breath sample. Since the fail reading was
tainted and could not be used as grounds, the
accused argued the officer lacked sufficient
cause to process the accused for impaired
driving. In rejecting the accused’s submission,
Justice LeReverend stated:
Unless there are facts which are brought to
the attention of the investigating officer that
an accused has either consumed alcohol in the
preceding 15 minutes an officer is not required
by law to either ask the question or wait the
15 minutes,” stated the judge. “The
investigating officer did not have any evidence
before him that this accused had consumed
alcohol within 15 minutes of the A.L.E.R.T.
test. The mere fact that the accused was
exiting a parking lot of a pub is not sufficient
to require the officer to ask the question or
wait the 15 minutes. It is only where the
officer knows that a suspect has just recently

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Volume 4 Issue 3
May/June 2004

consumed alcohol and that a proper sample can
only be obtained by waiting at least 15 minutes
that the waiting requirement is necessary.
Pursuant to s. 254(2) the peace officer had
grounds to reasonably suspect that the
accused had alcohol in his body. Those grounds
were an odour of alcohol emanating from the
accused and his red eyes. He made a proper
demand for a breath sample and was entitled
to rely on the results of the analysis of the
breath sample.
The police officer's suspicion that the accused
might be impaired was raised to a belief that
he had reasonable and probable grounds to
make a s. 254(3) demand because of the
failure of the Alco Sensor sample. [para. 1315]
Complete case available at www.albertacourts.ab.ca.

MERE CONVERSATION DOES
NOT NECESSARILY RENDER A
DETENTION
R. v. Macdonald, 2004 SKPC 55
A curious police officer pulled
up beside two young men walking
on the road early one morning.
With his driver’s window down,
the officer asked the men what
they were doing, who they were, and where they
were heading. After getting the information and
letting them go, the officer learned the accused
lied about his name and also had a curfew. He
was later arrested and found to be carrying car
break-in tools.
In Saskatchewan Provincial Court the accused
argued he was psychologically detained by police
when the conversation occurred and therefore
his s.9, s.10(a) and s.10(b) Charter rights were
breached. Thus, he submitted the evidence of
the conversation and the results of the search
following the arrest should be excluded under
s.24(2). Justice Singer however, disagreed. In
his view there was no detention. He said:

Volume 4 Issue 3
May/June 2004

The question [of whether an accused was]
psychologically detained, depends upon each
set of circumstances. It becomes easier to
answer if certain elements are present. For
instance, if there was a demand or direction as
opposed [to] just ordinary questioning or
conversation, if the language used and the tone
of voice expressed compulsion and not mere
conversation. Even the place where the
conversation took place must be taken into
account. Though the basis of a psychological
restraint is a subjective one based upon the
personal circumstances of the accused, that
test has an objective criteria as well, as the
subjective belief has to be a reasonable belief.
In order then to be detained by the police
there must be some direction or words on the
part of the police that results in the
deprivation of liberty. In other words the
police must by either physical or psychological
means attempt to control the movements of
the citizen. Merely asking questions as took
place in this case, does not have this element
of direction or compulsion.
In this case there was no direction from the
police officer of any kind that could be
interpreted objectively as compulsion or
direction to talk. While the accused may have
believed he must talk to the police in this
situation, there was no physical restraint on
the accused nor were there any words used by
the police officer that would indicate that the
accused was restrained in his movements or
that he had to answer the questions put to
him. He was not even asked to come over to
the police car, he was just asked his name.
I find that on the particular circumstances of
this case that the accused was not detained
and therefore that there was no breach of his
charter rights. [para. 22-25]

The accused was convicted of obstructing a
police officer, breach of recognizance and
possession of break-in instruments.
Complete case available online at www.canlii.org.

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19

REQUESTED TEST AFTER
24-HOUR PROHIBITION
MUST BE GIVEN
Green v. McLean, 2004 BCSC 536
A police officer stopped the
petitioner after observing him
not wearing his seatbelt and his
vehicle without tail lights and
weaving. The officer noticed the petitioner had
an odour of alcohol on his breath and that his
eyes were glassy and bloodshot. The petitioner,
on the other hand, denied consuming alcohol and
said that beer had been spilled on him. An
Approved Screening Device (ASD) test was
conducted and the accused failed. Although the
officer felt he could proceed with a full impaired
driving investigation, he decided to only issue the
petitioner with a 24-hour driving prohibition
under s.215 of the Motor Vehicle Act (MVA)—a
provision that empowers a police officer to
automatically suspend a driver’s licence for 24
hours where the officer has reasonable and
probable grounds to believe the driver’s ability is
affected by alcohol.
Section 215(6) of the MVA states:
If a driver, who is served with a notice of driving
prohibition under section (2), forthwith requests a
peace officer to administer and does undergo as soon
as practicable a test that indicates that his or her
blood alcohol level does not exceed 50mg of alcohol in
100 mL of blood, the prohibition from driving is
terminated.

Section 215(7) also recognizes the right of the
driver to have the prohibition terminated if they
can produce a medical certificate showing blood
alcohol content not in excess of 50mg%.
The petitioner was served with a notice of
prohibition which stated, on the reverse, that he
had the right to either request a breathalyser
test or obtain a certificate from a medical
practitioner if he did not accept the prohibition.
As a result, the petitioner demanded a test. But
the officer refused on the grounds he had

20

already administered a test—he felt a second
test would be redundant.
The petitioner sought a judicial review of the
officer’s decision in the Supreme Court of
British Columbia. He submitted that his right to
demand a test arose after the notice of
prohibition was served and, in any event, the
ASD test performed was not a “test” within the
meaning of s.215 or the notice he was served.
Justice McEwan agreed on both these points.
First, once the notice of prohibition was served,
the petitioner had the right to request a test to
establish the concentration of alcohol in his
body. It is the receipt of the notice that
triggers the right to be tested, regardless of
whether a test preceded the issuance of the
prohibition. Secondly, although the notice uses
the term “breathalyser” in a generic sense, the
“test” referred to in s.215 requires the use of an
approved instrument that measures the
concentration of alcohol in a person’s blood, not
an approved screening device that merely
measures the presence of alcohol.
Section 215(6) provides a driver who does not
accept a prohibition with the right to request a
test, which in Justice McEwan’s view left no
room for the exercise of police discretion. The
officer’s refusal to test the petitioner after the
prohibition was served on the basis of the ASD
results rendered the 24-hour prohibition invalid.
The prohibition was set aside.
Complete copy available at www.courts.gov.bc.ca.

Note-able Quote
The defence also cites a 1951 notion that
identification must be based upon a verbal
inventory of the perpetrator's face and build,
and not on recognition. …It strikes me as dubious
psychology. I recognize Clark Gable or Helen
Mirren when I see them in movies, but I cannot
usefully describe them, even their height or
weight.2—Alberta Court of Appeal Justice Cote
2

R. v. Zurowski, 2003 ABCA 315

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Volume 4 Issue 3
May/June 2004