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.

‘CHARTER’ NOT REQUIRED
PRIOR TO SAFETY SEARCH
R. v. T.A.V., 2001 ABCA 316
As a result of a wiretap, police
received information that two girls
traveling together would be going
from Vancouver to Edmonton on a bus
carrying
firearms
and
perhaps
narcotics. Police attended the bus depot and followed
two girls, one of whom was the accused, as they left
the depot; each carrying a bag. Police approached the
girls and identified themselves. When asked, the girls
stated they were coming from Vancouver. The accused
also produced a paper with an address and the girls
were described as being “quite agitated”. One girl was
arrested and Chartered for possession of a firearm
after an officer opened her bag and found a gun. A
second officer arrested and Chartered the accused for
possession of a concealed weapon after he felt and saw
the butt of a gun in the accused’s bag. At headquarters
however, the girls gave their dates of birth and at this
time it was recognized they were young offenders.
They were then given the warnings pursuant to s.56 of
the Young Offenders Act (YOA) and their bags were
searched and the contents photographed. As a result, a
revolver, pistol, and ammunition were found in the
accused’s bag while a gun with a silencer, a second
silencer, and ammunition were found in the other girl’s
bag. At trial, the accused was convicted of five counts
of illegally possessing weapons.
The accused appealed her convictions to the Alberta
Court of Appeal arguing, among other grounds, that the
evidence should have been excluded because the police
violated her rights at the time of the initial detention
under s.8 (search and seizure) and s.10 (right to
counsel) of the Charter as well as the special rights
afforded young persons under s.56 of the YOA. Since
the search of the accused’s bag was warrantless, the
Crown had the burden of proving that the search was
nonetheless reasonable. Two reasons were offered to
demonstrate that the search was authorized:

Volume 2 Issue 3
March 2002

•
•

Criminal Code: s.117.02
common law: investigatory safety search

Criminal Code
Section 117.02 of the Criminal Code permits the
warrantless search of a person in exigent
circumstances if the officer has reasonable grounds to
believe a weapon offence has been or is being
committed and evidence is likely to be found on the
person. In upholding the trial judge’s finding that
exigent circumstances existed and it was not
practicable to obtain a warrant, McClung J.A. for the
unanimous court stated:
"Exigent" indicates in dictionary usage, the "requiring of
immediate action or aid; pressing, urgent" or "[a] state of
pressing need; a time of extreme necessity; a critical
occasion, or one that requires immediate action or
remedy; an emergency, extremity, strait" … Practically
speaking, this involves the presence of "emergency-like
circumstances as for example the presence of weapons in
a motor vehicle stopped on a highway" or where " police
action literally must be `now or never' to preserve the
evidence of the crime" … Therefore, in the case of a
warrantless search of a home, exigent circumstances may
permit the search where it is necessary to prevent
imminent bodily harm or death, or where it is necessary
to prevent imminent loss or destruction of evidence…
…here the officers did not know the identities of the two
suspects on the bus, nor did they confirm that they had
indeed arrived in Edmonton until mere minutes before
they were detained as they left the bus station. In
making the finding that there were exigent
circumstances, the trial judge assessed the relevant time
period to be that arising after 11:00 at the bus depot.
This is a reasonable finding given the evidence led before
him. (references omitted)

Common Law
Alberta’s top court also held the search to be justified
under the common law power of search incidental to a
lawful detention based on an articulable cause a
detainee is involved in criminal behaviour. Articulable
cause is a lower standard than reasonable grounds and
is defined as "a constellation of objectively discernible
facts which give the detaining officer reasonable cause

to suspect that the detainee is criminally implicated in
the activity under investigation". Even if the officers
did not have reasonable grounds, the wiretap
information and their observations at the bus depot
provided at least an articulable cause to suspect the
girls were involved in criminal behaviour. Since the
officers were legitimately concerned with their
personal safety, the search was justified as an incident
to the detention. The Court, at para. 30-31:

Section 56 YOA
Section 56 of the YOA, “intended to ensure there is no
improper questioning of young persons”, provides a
statutory mechanism to exclude statements improperly
obtained for non-compliance. However, s.56 applies only
to oral or written statements and does not include the
suppression of physical evidence: The Court, at para.
34.
Section 56 is merely a rule of evidence about
incriminating statements, and it does not hamper
investigation… [I]f another Charter violation is proven, s.
24(2) still applies to youths. This same difficulty lies with
[the accused’s] s. 10(b) argument: if the police had the
right to perform a search for weapons without having to
first give a warning or opportunity to contact parents or
counsel, the weapons would have been discovered before
any duty arose under s. 10(b) or any sections of the YOA
. (references omitted)

The power to search upon detention is coupled to the
need to assure the safety of police officers, as well as
other citizens. Therefore officers are given the right to
search and are given latitude in order to protect
themselves…. It is a power which extends to a search for
weapons where the circumstances indicate that such a
concern is real… In a brief detention, such as here, the
focus expands from investigation to the protection of
involved officers…
The seriousness of the circumstances leading to the
detention dictate whether there will be a search as well
as its scope… The common-law power to search pursuant
to detention or arrest is not an unlimited power, but a
frisk search has gained acceptance as a minimal
intrusion… Here a search for weapons in the bags of the
suspects was justified due to the probability of criminal
activity attending the possession of handguns.
(references omitted)

Right to Counsel
Having found the accused detained, the court
addressed whether a failure to give a warning of the
right to counsel was a breach of the Charter, thus
affecting the reasonableness of the search. In the
circumstances, the Court found that if the search was
conducted to protect the officers no s.10(b) violation
could “logically” be made out:
A failure to give a warning of the right to counsel was
held to be relevant to the reasonableness of a search.
However, it has been questioned whether this 10(b)
warning must always be given immediately upon detention
or upon every detention… When a brief search is
conducted to ensure the safety of the officers involved,
it seems implausible that this must be preceded by a
10(b) warning.

Since there were no Charter infringements, there was
no basis to exclude the evidence. Furthermore the
Court ruled, even if there had been a Charter breach
there was no reason to exclude the non-conscriptive
real evidence under s.24(2) because the admission of
the firearms was not likely to bring the administration
of justice into disrepute.
Editor’s note: It must be noted that the failure to
provide the s.10(b) warning in this case was assessed in
relation to whether the protective search was
unreasonable and not as a consequence of an
incriminatory statement being obtained. It appears the
law is unsettled on the admissibility of a statement
obtained from an accused following an investigative
detention but prior to a Charter warning. Although the
s.10(b) right to counsel imports temporal immediacy1
and is not engaged by the length of the detention2,
some courts suggest that the right to counsel need not
be provided during the early stages of an investigative
detention. For example, in R. v. Clough and Watts 2000
BCPC 0160, Gordon J. stated, at para 24:
[I]t seems ridiculous to suggest that a citizen who is
detained briefly at the roadside such that a speeding
ticket can be issued has a right to counsel. Neither does
a citizen who is to be briefly detained for articulable
cause such that the police can investigate an offence
that is being or has been recently committed entitled to
counsel. To hold otherwise would totally frustrate the
day-to-day work of police officers. (emphasis added)

And further:
Here, if the right to search pursuant to a lawful
detention is in place to protect the safety of the
officers, it is not likely to be undone by a failure to first
warn of a right to counsel…
1
2

Volume 2 Issue 3
March 2002

R. v. Feeney[1997] 2 S.C.R. 13, R. v. Poloshek ( ) 134 C.C.C. (3d) 187 (Ont.C.A.)
R. v Elshaw (1991) 67 C.C.C. (3d) 97 (S.C.C.) at p.125

2

In R. v. Reid [2000] O.J. No. 2969 (Ont.Crt.Jus.),
Sparrow J. suggests the immediacy of s.10(b) rights
does not "necessitate unreasonable conduct on the part
of the police" and the police "must be permitted to
react sensibly on the spur of the moment", perhaps to
ask a question or two. In R. v. Dupuis (1995) 162 A.R.
197 (Alta.C.A.), police entered a residence in pursuit of
a suspect and at gunpoint required the occupants to lie
down. The Court "concluded the police could detain
while they pursued their enquiries without violating
s.10(b) of the Charter"3. However, the police are not
required to advise the detainee of the right to counsel
before they are searched. The police are entitled to
pursue their investigation to a point where any risk of
violence is removed before providing s.10(b) rights4. In
order to avoid the issue altogether, it may be prudent
for the officer to provide the Charter warning in a
pre-emptive fashion prior to questioning. However,
whether such an obligation arises in law remains
unclear.
Complete case at www.albertacourts.ca

WARRANT VALID DESPITE
IRRELEVANT INFORMATION
R. v. Lam, 2002 BCCA 99
The
accused
appealed
his
convictions for production of a
controlled
substance
and
possession for the purpose of
trafficking
arguing
the
information to obtain (ITO) was not capable of
supporting the warrant when all the irrelevant
information was removed from it. Furthermore, even if
what remained was sufficient to support the warrant,
the irrelevant information “made the judicial task of
deciding whether the information was capable of
supporting” the warrant too difficult and it should be
set aside.

It is important that the Information be examined as a
whole and not one piece of evidence at a time, because
each piece of evidence colours other pieces of evidence
and a fuller picture emerges by considering all the
evidence together. That does not justify including
material that is irrelevant but relevance can only be
tested in relation to the total picture painted in the
Information.

In this case, the power consumption, drawn curtains,
neglected house, burnt out lawn, and registration of a
vehicle to a house where a previous grow operation had
been found, when taken together, were sufficient to
support the warrant. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

SEARCH INCIDENT TO ARREST:
TAKING A LOOK!
Sgt. Mike Novakowski

A police officer has the
authority, deeply rooted in
common law, to search a
person incidental to arrest.
This search authority is
discretionary, does not impose
a duty to search, and if the
police officer is satisfied that
the law may be effectively and safely applied without a
search, the officer may choose not to search5.

Requirements
The are three requirements necessary for a search to
be reasonable as an incident to a lawful arrest6:
a
lawful
arrest.
The
lawfulness of the search
derives from the legality of
the arrest7. If the arrest is
not lawful, the resulting search will not be lawful
either. In many cases, the belief that reasonable
grounds for arrest exist is a condition precedent
to a valid arrest8. In the absence of reasonable
grounds upon which to base the arrest, any search
conducted will also be invalid9.

Although the Court agreed that there was a significant
amount of irrelevant material in the ITO, it disagreed
with what was truly irrelevant, marginally relevant, or
slimly relevant. Lambert J. for the unanimous appeal
Court wrote:

5
3

See comments of William J. in Swansburg v. Smith (1996) Docket:CA019235
(B.C.C.A.)
4
R. v. Lal (1996) Docket:CC940845 (B.C.S.C.) affirmed [1998] B.C.J. No. 2446
(B.C.C.A.) leave to appeal to dismissed [1999] S.C.C.A. No. 28 (S.C.C.),

Volume 2 Issue 3
March 2002

Cloutier v. Langlois & Bedard (1990) 53 C.C.C. (3d) 257 (S.C.C.)
Stillman v. the Queen [1997] 1 S.C.R. 607 (S.C.C.)
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
8
R. v. Belnavis (1996) 107 C.C.C. (3d) 195 (Ont.C.A.) at p.213.
9
See R. v. Young (1993) 79 C.C.C. (3d) 559 (Ont.C.A.) at p.565.
6
7

3

the search must be conducted as an “incident”
to the arrest. The purpose or objective of the
search must in some way be "connected" or
"related10" to the arrest and the manner and scope
of the search must bear some reasonable
relationship to the offence suspected and the
evidence sought11. Searching does not envelop
purposes that have no connection to the reason for
the arrest12. For example, a vehicle inventory
search based solely on departmental policy cannot
be justified as an incident to arrest13. Nor would a
search for improper police motives such as suspect
intimidation or public ridicule. Valid objectives of
a search incidental to a lawful arrest include14:
•

•

ensuring the safety of the
police and public. The police
have a right to protect
themselves and a duty to
protect the public, including the arrestee, from
threats to their physical well being. Not only must
the arresting officer be concerned with their own
safety, they must ensure the safety of other
personnel within the criminal justice system who
may be in contact with the arrestee such as jail
guards, Sheriffs, or court staff. Instruments that
may aid the arrestee in escape are also of concern
during a search of this nature.
protecting
or
discovering
evidence. The police are entitled
to secure or discover evidence
related to the arrest. For example,
a search following a drug arrest
warrants a search for drug related
evidence, but not pornography. In
this way, what the police are looking for must be
associated to the reason for the arrest. If the
police "contrive" an arrest at a particular location
as a camouflage or subterfuge to justify the
subsequent search, the search would fall outside
the scope15.
the search must be conducted in a reasonable
manner. The physical manner or method of the
search must be carried out in a just and proper

10

Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
R. v. I.D.D. (1987) 38 C.C.C. (3d) 289 (Sask.C.A.)
R. v. Belnavis (1996) 107 C.C.C. (3d) 195 (Ont.C.A.) at p.213.
13
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
14
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
15
R. v. Lim (No. 2) (1990), 1 C.R.R. (2d) 136 (Ont.H.C.J.), R. v. Concepcion (1994), 48
B.C.A.C. 44 (B.C.C.A.) at para. 27
11

12

Volume 2 Issue 3
March 2002

fashion. The search must not be conducted by
abusive means and the nature of the search must
be proportionate to the objectives of the search
and other circumstances of the situation. Although
a search may be uncomfortable, such as a search
that requires the removal and seizure of clothing,
it is not necessarily unreasonable.

Exigent Circumstances
Search incidental to arrest is an exception to the
unreasonable presumption of a warrantless search16. It
is not necessary for the officer to believe that exigent
circumstances exist or that it would be impracticable
to obtain a warrant before conducting the search17.
The presumption of unreasonableness is rebutted by a
lawful arrest18.

Reasonable Grounds
Although the arresting officer must possess
reasonable grounds to effect the arrest, the existence
of an independent belief that the person arrested has
weapons or evidence on their person or in their
immediate surrounding area is not required19.
Reasonable grounds to justify arrest must pre-exist
the search. If however, the search provides the
reasonable grounds for the arrest, the search cannot
be justified as an incident to the arrest20.

Timing of the Search
If a search is carried out after an arrest, there is no
requirement that the search be conducted immediately
following the arrest. Postponing a search to a later
time or place does not defeat the reasonableness of a
search. However, this does not provide an unqualified
right to search anytime after an arrest. The delay
from the time of arrest to the time of search must be
reasonable and the police will be required to give some
explanation as to why the search was delayed21. A
search may also be conducted prior to an arrest
provided the officer has reasonable grounds to arrest
16

R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont.C.A.), Stillman v. the Queen [1997] 1
S.C.R. 607 (S.C.C.)., R. v. Golden 2001 SCC 83
17
R. v. Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.), R. v. Drapeua (1993) 39 B.C.A.C.
237 (B.C.C.A.), R. v. Shynuk [1997] B.C.J. No.265 (B.C.C.A.) appeal to S.C.C.
dismissed [1997] S.C.C.A. No.151.
18
R. v. Klimchuk (1991) 67 C.C.C. (3d) 385 (B.C.C.A.),
19
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.), Cloutier & Langlois v. Bedard
(1990) 53 C.C.C. (3d) 257 (S.C.C.), R. v. M. (M.R.) [1998] 3 S.C.R. 393 (S.C.C.), R. v.
Morrison (1987) 35 C.C.C. (3d) 437 (Ont.C.A.), R. v. Polashek (199) 134 C.C.C. (3d)
187 (Ont.C.A.), R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont.C.A.)
20
R. v. Belnavis (1996) 107 C.C.C. (3d) 195 (Ont.C.A.) at p.213.
21
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.), R. v. Copan (1994) 39 B.C.A.C.
307 (B.C.C.A.), R. v. Miller (1987), 38 C.C.C. (3d) 252 (Ont.C.A.)

4

the person before the search22; the arrest may not be
incidental to the search and independent reasonable
grounds to arrest must exist irrespective of the
outcome of the search23. Thus, an otherwise "unlawful"
arrest would not become lawful merely because the
officer discovered evidence.

SCOPE
A search incidental to arrest includes a search of the
arrestee and is extended to encompass a search of the
immediate surroundings of the arrest location24.
Although the courts have not attempted a
comprehensive definition of the words “immediate
surroundings”25, immediate surroundings is a broader
and a less restrictive standard than the area within the
"immediate control" of the arrestee26.

Personal Searches
Canadian jurisprudence has divided the search of a
person into essentially four distinct categories27:
•
•
•
•

"pat down" or "frisk" search
"strip" or "skin" search
"body cavity" search
"bodily substance" search

It is without dispute that the police have the power to
frisk, or “pat down” an arrestee. A frisk search is a
"relatively
non-intrusive
procedure: outside clothing
is patted down to determine
whether there is anything on
the person of the arrested
individual. Pockets may be
examined but the clothing is
not removed "28.

Strip or skin searches (disrobing), requiring the
removal of an arrestee's clothing, is greater an affront
to human dignity than a frisk or pat-down search.
Although a search incidental to arrest does not
generally require reasonable grounds beyond the
grounds necessary to support the arrest, an exemption
to this common rule exists in cases of strip searches29.
Strip searches represent a significant invasion of
privacy, and are often humiliating, degrading, and
traumatic experiences. To undertake this type of
intrusive search, the officer must possess reasonable
grounds justifying the strip search in addition to
justifying the arrest. Strip searches carried out as a
matter of routine or policy, or abusively or for the
purpose of humiliating or punishing the arrestee will be
unreasonable. Furthermore, the strip searches should
be conducted at the police station unless there are
exigencies requiring the search be conducted in the
field. For practical purposes, the following points are
noteworthy30:
•

•

•
•

22

R. v. Debot (1987) 30 C.C.C. (3d) 207 (Ont.C.A.), R. v. Lee [1993] B.C.J. No.1220
(B.C.S.C.)
23
R. v. Debot (1986) 30 C.C.C. (3d) 207 (Ont.C.A.) affirmed on other grounds
(1989) 52 C.C.C. (3d) 193 (S.C.C.), R. v. Tomaso (1988), 70 C.R. (3d) 152 (Ont.C.A..),
R. v. Charlton (1992) 15 B.C.A.C. 272 (B.C.C.A.), R. v. Belnavis (1996) 107 C.C.C. (3d)
195 (Ont.C.A.)
24
Cloutier & Langlois v. Bedard (1990) 53 C.C.C. (3d) 257 (S.C.C.), R. v. Wong (1987)
34 C.C.C. (3d) 51 (Ont.C.A.) affirmed (1990) 60 C.C.C. (3d) 460 (S.C.C.)., R. v.
Charlton (1992) 15 B.C.A.C. 272 (B.C.C.A.), R. v. Smellie (1994) 95 C.C.C. (3d) 9
(B.C.C.A.),
25
R. v. Concepcion (1994) 48 B.C.A.C. 44 (B.C.C.A.)
26
R. v. Lim (No.2) (1990) 1 C.R.R. (2d) 136 (Ont.H.C.J.)
27
See R. v. Simmons [1988] 2 S.C.R. 495 (S.C.C.) and R. v. Stillman [1997] 1 S.C.R.
607 (S.C.C.).
28
Cloutier & Langlois v. Bedard (1990) 53 C.C.C. (3d) 257 (S.C.C.)

Volume 2 Issue 3
March 2002

•

29
30

Although permissible as an incident to arrest, strip
searches are presumptively unreasonable and the
onus lies with the police in justifying the search.
In conducting a strip search the police must
possess reasonable grounds that the search is
necessary for safety or evidentiary concerns.
These reasonable grounds are independent from
the grounds justifying the arrest. Mere possibility
that a person has weapons or evidence upon their
person is insufficient.
Searches conducted as a matter of routine or
policy, or to humiliate or punish are unreasonable.
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 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
R. v. Golden 2001 SCC 83
R. v. Golden 2001 SCC 83

5

•

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.

Whether the search was conducted out of public view
or whether the officer conducting the search was the
same gender as the arrestee will also be important
factors in assessing the reasonableness of the search.
It is clear from jurisprudence that a high level of
justification will be required if a search of body
cavities is conducted31. Assistance of trained medical
personnel aiding in the search will also be assessed in
the overall reasonableness.
Taking biological samples of an arrestee as an incident
to arrest is an exemption to the common law power. In
Stillman v. the Queen [1997] 1 S.C.R. 607 (S.C.C.) the
police took hair and saliva samples, as well as dental
impressions from the accused who had refused to
provide them. In addressing whether the samples were
lawfully obtained incidental to arrest, Cory J. for the
majority, at para. 49 held:
The common law power of search incidental to arrest
cannot be so broad as to encompass the seizure without
valid statutory authority of bodily samples in the face of
a refusal to provide them. (emphasis added)

searched"34. This may include trunks of motor vehicles,
which are not necessarily taboo35.
In R. v. Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.) leave
to appeal to S.C.C. refused (1997) C.C.C. (3d) vi (S.C.C.)
the accused argued that the search, which included the
removal of a door panel, was not within the scope of
search incidental to arrest. The Court held that
previous judgements "make it clear that in searching a
vehicle as an incident of arrest the police are entitled
to at least search the interior of a vehicle as well as
the trunk".
In R. v. Speid (1991) 8 C.R.R. (2d) 383 (Ont.C.A.), leave
to appeal to S.C.C. denied [1992], 1 S.C.R. ix, police
were refused the issuance of a search warrant by a
justice of the peace. Police nevertheless proceeded
with a search of the accused's vehicle, which was in
the immediate surroundings, following his arrest. A
unanimous Court in dismissing the appeal stated:
In our opinion the police officers were entitled to search
the appellant and the car driven by him which was still in
the immediate surroundings as an incident of the
appellant's lawful arrest, in order to discover and
preserve relevant evidence….The fact that the search
and seizure were not conducted immediately upon arrest,
but only after the refusal of an unnecessary search
warrant did not interfere with this entitlement.
(emphasis added)

Residential Searches
It is "well recognized that the
home is granted the highest
degree
of
protection
from
unwanted state intrusions36". In
proper circumstances, a search
may be conducted of a residence,
or parts thereof, as an incident
to arrest37.

Vehicle Searches
Vehicles are "legitimately
the objects of search
incident to lawful arrest as
they attract no heightened
expectation of privacy that
would justify an exemption from the usual common law
principles"32. The power to search may even extend to
include a motor vehicle from which the person had
emerged at or shortly before the time of their
arrest33. Provided the search is rationally connected to
the arrest (safety, evidence), “there is no logical
reason that the entirety of what may be reasonably
said to be the surroundings ought not to be

31

R. v. Greffe [1990] 1 S.C.R. 755 (S.C.C.)
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.), see also R. v. Smellie (1994) 95
C.C.C. (3d) 9 (B.C.C.A.), R. v. Poleshek (199) 134 C.C.C. (3d) 187 (Ont.C.A.), R. v.
Drapeau [1993] B.C.J. No.2528 (B.C.C.A.)
33
R. v. Klimchuk (1991) 67 C.C.C. (3d) 385 (B.C.C.A.), see also R. v. Brezak [1950] 2
D.L.R. 265 (Ont.C.A.), R. v. Vu (1998) 118 B.C.A.C. 162 (B.C.C.A.)
32

Volume 2 Issue 3
March 2002

For example, in R. v. Golub (1997) 117 C.C.C. (3d) 193
(Ont.C.A.) police searched the residence of the
accused following his arrest outside his door after he
exited his apartment. The nature of the call involved a
firearm and the use of the police Emergency Task
34

R. v. Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.) leave to appeal to S.C.C. refused
(1997) C.C.C. (3d) vi (S.C.C.)
35
R. v. Charlton (1992) 15 B.C.A.C. 272 (B.C.C.A.), R. v. Polashek (1999) 134 C.C.C.
(3d) 187 (Ont.C.A.), R. v. Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.) leave to appeal to
S.C.C. refused (1997) C.C.C. (3d) vi (S.C.C.)
36
R. v. Evans (1996), 104 C.C.C (3d) 23 (S.C.C.)
37
R. v. Concepcion (1994) 48 B.C.A.C. 44 (B.C.C.A.), R. v. Joly (1999) 118 O.A.C. 334
(Ont.C.A.) appeal to S.C.C. dismissed [2000] S.C.C.A. No. 18 (S.C.C.), R. v. Golub
(1997) 117 C.C.C. (3d) 193 (Ont.C.A.), R. v. Bedard [1998] O.J. No.2087 (Ont.C.A.)

6

Force (tactical team). As a result of the search, a
firearm was found under a bed mattress. The Court
found that the police interest in protecting the safety
of those at the scene outweighed the privacy interest
of the individual and was therefore an exception to the
warrant requirement in searching a dwelling house38.
The primary focus on whether the search in a dwelling
house is legal will rest on the lawfulness of the arrest.
Thus, where a search of a hotel room used as a dwelling
resulted in the seizure of papers that were strewn
about the room, the papers could be lawfully seized
provided the initial arrest was lawful39. In R. v. Joly
(1999) 118 O.A.C. 334 (Ont.C.A.) appeal to S.C.C.
dismissed [2000] S.C.C.A. No. 18 (S.C.C.), the police
walkthrough of the accused’s apartment following his
arrest in the apartment and brief examination of
evidence in the bathtub was proper. However, the
officer must recognize that the person's dwelling has a
heightened expectation of privacy as compared to
other places (ie. vehicles) and the scope of a search
incidental to that arrest may be curtailed somewhat as
to its spatial scope. Because of this increased privacy
expectation in a home, officer safety may in some
cases warrant a broader search power in a dwelling
than gathering evidence40.

Right to Counsel
Although a person who is arrested must be advised of
their right to counsel under s.10 of the Charter, an
incidental search need not be suspended while the
arrestee is afforded a reasonable opportunity to
exercise that right41. The search may proceed but the
police must cease questioning the arrestee until a
reasonable opportunity to contact counsel is provided if
the person asserts a desire to do so.

Summary
The enquiry into whether a search incidental to arrest
will be reasonable will first hinge on the legality of the
arrest. If the arrest is not lawful, the resultant search
will not be lawful. If the arrest is valid, the second
test will be whether the search was truly "incidental"
to the arrest. The search must be undertaken for a
purpose "connected" or "related" to the arrest, such as

38

See also R. v. Bedard [198] O.J. No.2087 (Ont.C.A.) for a similar result.
R. v. Chau (2000) Docekt:C31982 (Ont.C.A.)
R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont.C.A.) at p.210.
41
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.), R. v. Guberman (1985), 23 C.C.C. (3d)
406 (Man. C.A.).
39

safety or evidence gathering, and will include focal,
spatial, and temporal limits.
The focal limit refers to the articles that are the
subject, or focus, of the search including weapons or
evidence. Reasonable grounds to believe such evidence
(or weapons) will be found is generally not a
prerequisite to this power of
search,
unlike
swearing
an
information to obtain a search
warrant. However, strip and body
cavity
searches
do
require
greater justification.
The spatial limit refers to the place or geographical
area to be searched. This could include the person, a
motor vehicle, a residence, or other place in which a
person may have a reasonable
expectation of privacy. The test
is whether the targeted area of
the
search
is
properly
circumscribed as “immediate
surroundings”. A search that
exceeds this boundary will not be
authorized in its excess.
The temporal limit refers to the time between the
search and the arrest. Generally, the search will occur
shortly after the arrest. However, failure to promptly
carry out a search will not in all cases be fatal to the
validity of the search. Although the court may draw an
adverse inference from the delay,
this inference can be defeated by a
reasonable explanation. In fact, a
search may occur before an arrest
provided
reasonable
grounds
existed prior to the search and
irrespective of the results.
Finally, the search must be conducted in a reasonable
manner. Legality alone will not save a search that is
excessive in its execution. The police are not entitled
to conduct a search as they choose. The police must
demonstrate the physical manner, or intensity, of the
search was appropriate and was not abusive or
otherwise disproportionate to the objectives sought or
other circumstances of the situation. These boundaries
on the common law power to search incidental to arrest
must be carefully considered and dutifully respected.

40

Volume 2 Issue 3
March 2002

7

IN CUSTODY ABANDONMENT:
GUM TRICK VIOLATES
CHARTER
R. v. Nguyen,
(2002) Docket:C24776 (OntCA)
Police arrested the accused for the
murder of his distant cousin who had
been sexually assaulted and brutally
beaten to death. At one point the
trial was put over for two weeks to
permit a motion by Crown for an adjournment; an
application for a general warrant to obtain bodily
samples and dental impressions was going to be made.
Prior to the two week returnable date, the police and
Crown conspired to circumvent the accused's refusal
(on the advice of his counsel) to provide DNA, by
offering the accused a piece of chewing gum with the
hope that it would be chewed and discarded. The plan
involved the following steps that were summarized by
the trial judge as follows:
• "Two female police officers were selected to
transport the accused in an attempt to create an
atmosphere conducive to acceptance of the gum.
• "The officers were to respond if spoken to and were
to participate in conversation unrelated to the case.
The sliding window into the back seat of the police
car was left open for this purpose.
• "Gum was to be offered, officer to officer,
accepted, and then offered to the accused.
Acceptance by the accused was to be voluntary. The
officers were not to suggest, persuade or insist.
They were neither to ask for the return of the
chewed gum, nor to suggest the accused discard it.
If the accused swallowed the gum or put it in his
pocket, nothing was to be done. If the gum was
discarded, they were to retrieve it.
• "The toilet bowl in the court house security cell was
drained. Paper towelling was placed to catch anything
dropped in the bowl. A clean waste basket was placed
outside the cell to provide another opportunity for
the accused to deposit the gum.
The plan was successful and on two occasions the
accused accepted, chewed, and discarded a piece of
gum which was seized without a warrant and submitted
for DNA analysis; one piece of gum on the way from
the detention centre to the courthouse which was

Volume 2 Issue 3
March 2002

discarded in the dry toilet bowl and a second stick on
the return trip from the courthouse to the detention
centre which was discarded in a trashcan in the
security garage of the detention centre. On both
occasions, the trial Court found that even though the
police "presented the opportunity for the accused to
unwittingly circumvent his decision not to supply bodily
samples" and that they were banking on the accused's
"ignorance
or
oversight
about
the
possible
consequences flowing from abandoning chewed gum"
(DNA), they did not encourage or persuade him; the
accused voluntarily accepted and chewed the gum
"entirely independent of police suggestion or
inducement other than the offer". At trial, the judge
found the warrantless seizure valid because the
accused could no longer claim a privacy interest in the
discarded gum; therefore s.8 of the Charter was not
triggered. Furthermore, the judge found the "trick"
used by the police did not undermine the accused's
refusal in providing body samples and therefore did not
violate the privilege against self-incrimination. The
accused appealed his conviction to the Ontario Court of
Appeal arguing, among other grounds, that the trial
judge erred in admitting the DNA evidence derived
from the chewing gum.

S.7
Charter-Protection
Incrimination

Against

Self

When does a trick become so dirty that it amounts to
an improper subversion of a person's freedom to
choose whether to provide the DNA sample or not
therefore violating their right against selfincrimination? In describing the offer of gum in this
case as a "passive" ploy, the trial judge found it similar
to placing an undercover officer in a cell for no purpose
but to listen, thereby creating an opportunity to speak
with someone. Police offered no “active” deception,
unfairness, threats, promises, coercion, persuasion, or
inducement to accept, chew, return, or discard the
gum. By offering the gum the police merely created the
opportunity; taking advantage of that opportunity was
dependent on the accused. The Ontario Court of
Appeal agreed with the trial judge in finding the trick
acceptable.

S.8 Charter-Unreasonable Seizure
Normally, where a person who is not in custody
discards an item such as a cigarette butt, the police
may collect the item without a warrant or without

8

consent because the person relinquishes their privacy
interest in the item discarded. However, a person in
custody cannot prevent the police from retrieving the
item. A person in custody who produces items
containing bodily fluids will have no choice but to
discard those substances in receptacles under police
control. Whether a person relinquishes any privacy
interest in the samples while in custody will be
determined on a case-by-case basis. In this case, the
Crown conceded that the warrantless seizure of the
gum constituted a violation of the accused's s.8
Charter rights. However, despite the s.8 breach, the
DNA evidence was admissible under s.24(2) of the
Charter because the administration of justice would
not be brought into disrepute by its admission.
Consequently, the appeal from conviction was
dismissed.
Complete case available at www.ontariocourts.on.ca.

PRIVATE PORNOGRAPHY
MITIGATING CIRCUMSTANCE:
CONDITIONAL SENTENCE
REASONABLE
R. v. Schan,
(2002) Docket:C36525 (OntCA)
Ontario’s Court of Appeal recently
varied the sentence of an accused
who pled guilty to possessing child
pornography. Although the trial
judge properly focused on the evils of child
pornography and the principles of denunciation and
deterrence in passing sentence, he did not properly
focus on the fact the accused only downloaded the
pornographic images for his own use and did not
distribute the material. Furthermore, the accused’s
marriage and relationship with his children had ended,
he suffered from depression, and attempted suicide.
As a result, the Appeal Court substituted an 18 month
conditional sentence.
Complete case available at www.ontariocourts.on.ca.

Note-able Quote
“Freedom is not the sole prerogative of the lucky few
but the right of all human beings.” Author unknown.

Volume 2 Issue 3
March 2002

ENTRY TO ARREST LAWFUL:
ALL EVIDENCE NEED
NOT BE DESTROYED
R. v. Duong and Tran, 2002 BCCA 43
Police officers who were responding
to a home invasion canvassed the
neighbourhood
for
possible
witnesses. One of the officers
approached the front door of a
residence and knocked. As a male opened the door, the
officer felt a rush of warm, humid air carrying the
odour of both burning and growing marihuana. As the
officer questioned the male about the home invasion he
observed a female standing inside the house. The
officer described the male at the door as “fidgety”,
rocking on his heels, looking over his shoulder, avoiding
eye contact, and attempting to pull the door closed
behind him. The officer called for backup and after a
second officer arrived, the male and female were
arrested inside the residence for growing marihuana.
The officers then checked the residence to satisfy
themselves there were no other persons present. While
inside the residence the police made several
observations including a padlocked basement door, fans
humming in the basement, and a locked rear basement
door. The two arrested occupants were transported to
the police lockup while police obtained a search
warrant. A search warrant was executed resulting in
the seizure of a commercial marihuana grow operation
from the basement and other evidence linking the
arrested occupants to the premises. At trial, the
evidence was admitted and the accused were convicted
of producing marihuana and possession for the purpose
of trafficking. The accused appealed their convictions
arguing the police violated their right under the
Charter to be secure from unreasonable search or
seizure and that the evidence should be excluded
because the police did not have reasonable grounds on
which to base either the arrests or the search
warrant, nor were there exigent circumstances
justifying entry to effect the arrests or the walk
through search following the arrests.

Lawful entry to effect arrest?
Since the decision in R. v. Feeney [1997] 2 S.C.R. 13,
entry to effect an arrest in a dwelling house is
generally prohibited unless the police are in fresh
pursuit or in cases of exigent circumstances. Section

9

529.1 of the Criminal Code, Parliament’s response to
the Feeney decision, allows the police to enter a
residence without a warrant to effect an arrest if the
following three preconditions are satisfied:
1.
2.
3.

the police have the power of arrest under
s.495(1)(a) or (b),
reasonable grounds the person is within the
residence exist; and
it would not be practicable to obtain a warrant
because
of
the
existence
of
exigent
circumstances.

Were the arrests lawful?
Section 495(1) of the Criminal Code permits an arrest
for an indictable offence based on reasonable grounds.
Reasonable grounds require a subjective belief held by
the officer that is supported by objective criteria. The
following grounds offered by the arresting officer, and
accepted by the trial judge, were sufficient:
•
•
•
•

the odour detected at the door;
the humid, warm air coming from the house;
the demeanour of the male answering the door; and
the officer’s experience in the field with the
distinct odour of growing marihuana

Grounds to believe person(s) present?
This precondition was satisfied because the officer
saw the accused in the residence.

Exigent Circumstances?

•

•

because of an officer shortage that evening he
would have difficulty obtaining additional officers
to watch the house; and
he was dealing with an ‘active’ crime rather than
one that could be dealt with later.

The accused argued that a commercial marihuana grow
operation could not be dismantled and destroyed in the
hour it would have taken the officer to obtain the
warrant, unlike a quantity of cocaine which could easily
be destroyed. Although the court agreed that the
operation could not be completely destroyed, other
evidence linking the accused to the operation, such as
documents and fingerprints on equipment could be
made unavailable had the accused been left inside the
home for that hour. The British Columbia Court of
Appeal refused to interfere with the trial judge’s
conclusion that exigent circumstances existed.

Entry as an Incident to Arrest?
In addition to the entry being lawful under the
warrantless entry provisions of the Code, the appellate
Court also examined whether the entry of the premises
and the initial search were lawful as an incident to
arrest at common law. For a search to be incident to
arrest, the following threefold test must be satisfied:
1.
2.
3.

the arrest must be lawful
the search must be for a valid investigatory
objective
the search must be conducted in a reasonable
manner

Exigent circumstances are defined in the Code as
including circumstances where the officer believes, on
reasonable grounds, that entry is necessary to prevent
the imminent loss or destruction of evidence relating
to an indictable offence. The standard for assessing
the existence of exigent circumstances is reasonable
grounds. In other words, did the officer believe
exigent circumstances existed and was that belief
supported by objective criteria? In this case, the trial
judge concluded exigent circumstances existed after
accepting the officer’s testimony that:

Since the arrest was lawful, the Appeal Court found
the officer’s “entry of the premises without a warrant
to ensure its security and to preserve evidence was a
lawful incident of that arrest and was not carried out
in an unreasonable manner”. The entry and search were
therefore lawful at common law.

if he left to get a warrant the accused could
escape and he would subsequently be unable to
identify him;
the accused and anyone else inside could destroy
evidence;

criminal processes and those who prefer to be hostile
and unco-operative with the police in the conduct of
their duties are more likely to suffer unfortunate
consequences”. SaskCA Justice Wakeling42

•

•

Complete case available at www.courts.gov.bc.ca.

Note-able Quote
“Innocent people are inevitably caught up in the

42

Volume 2 Issue 3
March 2002

Schell V. Truba et al. [1990] S.J. No.547 (SaskCA)

10

2001 ENHANCED
COUNTERATTACK ROADCHECK
STATISTICS
The
Enhanced
Counterattack
Roadcheck statistics for British
Columbia police forces are in for
2001. Ending December 31, 2001
there were a total of 4,727,195
vehicles checked, 23,729 roadside BAC screenings, 726
standard field sobriety tests, and 148 drug recognition
expert screenings. As a result, a grand total of 741
impaired driving charges were processed (up from 732
in 2000), 832 administrative driving prohibitions and
10,376 (1,016 for drugs) 24 hour prohibitions were
served. Finally, 21,317 violation tickets were written
and 442 other Criminal Code charges were laid. The
statistics for BC’s municipal police departments are as
follows:
Department

Vehicles
checked

Roadside
BACs

Impaired
charges

215s

Abbotsford
Central
Saanich
Delta
Esquimalt
Nelson
New
Westminster
Oak Bay
Port Moody
Saanich
Vancouver
Victoria
West
Vancouver

153,804
84,197

759
224

7
24

290
106

150,397
76,509
23,309
165,565

694
168
123
413

10
10
5
9

256
68
66
195

35,881
59,745
154,582
837,270
268,215
213,120

218
150
455
5,238
2,015
1,172

1
1
7
10
20
22

59
87
204
2,102
570
422

SEIZED JOURNALS
ADMISSIBLE
R. v. Anderson
(2002) Docket:C33913 (OntCA)
Police executed a search warrant
and seized journals encompassing
the several year time frame relating
to several charges against the
accused. The journals consisted of
500-1,000 pages of handwritten notes; some
exculpatory and some inculpatory. At trial, the Court
excluded the journals finding their admission in the
trial would violate the accused’s right to silence and
the principle against self incrimination protected under
the Charter. On appeal by Crown, the Ontario Court of
Appeal recognized that both rights are embodied in
the Charter, but they are not absolute. The right to
silence is triggered when the accused, in a criminal
proceeding, is subject to the coercive powers of the
state through detention or “when an adversarial
relationship arises between the individual and the
state”. The principle against self-incrimination may
“mean different things, at different times, in different
contexts”.
In this case, the police did not elicit the statements
contained in the journals; they were created before
any police investigation, detention, or arrest. The
statements were not made under compulsion, coercion,
or after detention or arrest, nor was there an
adversarial relationship at the time the entries were
made. The Crown appeal was allowed and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca.

The Cowichan Valley RCMP generated the most
impaired driving statistics. They checked 91,511
vehicles resulting in 134 charges (up from 68 in
2000).

USE OF DEER DECOY NOT
ENTRAPMENT

Note-able Quote

The accused was convicted of
hunting with the aid of a light,
hunting during prohibited hours, and
discharging a firearm on or across a
highway contrary to the Wildlife
Act. Conservation officers had set up a deer decoy at
night along a road outside the Williams Lake area. The
accused, who was driving along the roadway in the

“The driving of a motor vehicle is neither a God-given

nor a constitutional right. It is a licensed activity
that is subject to a number of conditions, including
the demonstration of a minimum standard of skill and
knowledge pertaining to driving…” SCC Justice Cory43
43

R. v. Sigurdson, 2002 BCPC 0019

Gaslake v. O’Donnell [1994] 1 S.C.R. 670

Volume 2 Issue 3
March 2002

11

company of another person, stopped, loaded his rifle,
and fired two shots at the decoy.
The accused
attempted to leave the area but was stopped, arrested,
and subsequently released. After being found guilty of
these charges, the accused argued that he had been
entrapped by the conservation officers on three
grounds.
First he argued, the area targeted by
conservation officers was outside the geographic area
where reports about this kind of illegal activity had
been occurring. Second, the decoy operation was
designed to entrap persons. Finally, the decoy itself
was “so spectacular a trophy that he could not resist
it”; “the size and symmetry of the rack on the decoy
was of such quality that it proved to be an irresistible
lure”.
The test for entrapment is two fold:
•
Were the police acting on a reasonable suspicion
that the person is engaged in criminal activity or
were they acting pursuant to a bona fide inquiry in
an area where particular criminal activity is likely
occurring?, and
•
Even if they had a reasonable suspicion or were
acting on a bona fide inquiry, did they go beyond
providing an opportunity and induce the commission
of an offence?
In this case, the judge found the police were engaged
in a bona fide investigation, acted reasonably in what
they did, and did not go beyond providing an
opportunity. Largely based on the evidence of the
conservation officers, the judge found the antlers on
the deer were “neither exceptional in size or symmetry
so as to act as an extraordinary lure to law abiding
members of the public”. The defence of entrapment,
which could result in a judicial stay of proceedings, had
not been made out.
Complete case available at www.provincialcourt.bc.ca

MISTATEMENT OF
PUNISHMENT RENDERS
CONFESSION INADMISSIBLE
R v. Monk and Alexis, 2002 BCCA 103
The accused was arrested by police
for murder. After the arrest, he
contacted a lawyer and refused to
talk to the police on the advice of
counsel. Nonetheless, he did reveal
that he wished to become a youth probation counselor

Volume 2 Issue 3
March 2002

which the police later used to develop a theme that if
the accused accepted responsibility he could build on
his hopes for the future. The police officer developed
a rapport with the accused and after talking to him for
about two hours, obtained a confession. Prior to the
confession, the accused asked the officer if the judge
would reduce his sentence if he cooperated. The police
officer advised the accused that the judge would have
to sentence him to no less than ten years in jail.
However, the police did not advise the accused that
the minimum sentence for conviction on second degree
murder was life imprisonment without parole for at
least ten years. The trial judge was satisfied that the
accused believed he was facing a ten-year sentence and
not a life sentence. As a consequence, the trial judge
ruled the statement inadmissible; it was induced by the
hope of a ten-year sentence with a chance of early
release (2/3 of a ten year sentence). In rejecting the
Crowns appeal, the British Columbia Court of Appeal
stated:
[I]t was open to the trial judge to conclude that [the
accused] was induced to confess so that he could secure
a minimum ten year sentence….The inducement was
implicit rather than express. Neverthe-less, the
constable ventured into a high risk area…as “[t]he
classic ‘hope of advantage’ is the prospect of leniency
from the courts”. (references omitted)

Complete case available at www.courts.gov.bc.ca

ASD SAMPLE PREMATURE:
RESULTS UNRELIABLE
R. v. Burns, 2002 ABQB 135
The Crown appealed the accused’s
acquittal on a charge of driving while
over 80mg% because the police
officer should have waited fifteen
minutes from the time of the
accused’s last drink before administering the approved
screening device (ASD). The accused told the officer
that he had a “few beer” and his last drink was about
ten minutes before the stop. The officer made a
demand requiring the accused provide a sample into an
ASD. As a result, a fail was registered and from that
result alone, the officer formed reasonable grounds
and read the breathalyzer demand. Consequently, the
accused complied and provided a sample in excess of 80
mg%. At trial, the judge found the officer knew she
should have waited fifteen minutes and by not doing so
the “fail” reading was unreliable. An RCMP crime

12

laboratory analyst was called by the defence and
testified the fifteen minute waiting period after a last
drink ensured the dissipation of any alcohol which may
affect the reliability of the test. As a consequence,
the officer’s belief to support the breathalyzer
demand based solely on the “fail” was not reasonable
because she knew the reading was unreliable. The
resultant certificate of breath samples was obtained
as a result of a Charter violation and was ruled
inadmissible. In rejecting the Crown’s appeal, the
Alberta Court of Queen’s Bench Justice stated:
The requirement to wait 15 minutes to ensure the
reliability of the analysis arises only where the police
officer is inclined to believe the suspect’s claim of recent
alcohol consumption. …[A] police officer is entitled to
disbelieve the suspect, presumably with articulable
reasons for doing so. In such a case, there will be no
doubt in the officer’s mind regarding the reliability of
the ASD results
I conclude … that when an officer has reason to believe
or suspect that alcohol has been consumed within 15
minutes, the officer should delay administering the test
to ensure that the ASD results are reliable. However,
where there is no credible evidence that the suspect was
drinking within 15 minutes, then the screening analysis
should be administered as soon as reasonably possible.

The appeal court judge refused to interfere with the
trial judge’s decision and the acquittal was upheld.
Complete case at www.albertacourts.ca

SEARCH WARRANT FOR
HOUSE PERMITS SEARCH OF
VEHICLE ON PROPERTY
R. v. Nguyen, Pham, and Vu,
2002 BCPC 0012
Police were in possession of a search
warrant that authorized the search
of a residence but was silent about
the search of two vehicles on the
property. After finding two sets of keys in the home,
police opened and searched the vehicles parked in the
back yard area of the property. In one vehicle, police
located photographs and documents which were
tendered at trial as evidence. The accused Vu argued
that his s.8 Charter right to be secure against
unreasonable search and seizure had been violated
because the police did not have a warrant to search the

Volume 2 Issue 3
March 2002

vehicles. After reviewing the applicable case law,
Justice Maughan found there to be no breach:
In the case at bar, police searched the residence and
found evidence of an active and extensive marihuana
production. Indications by way of food and clothing and
personal items tended to show the house was occupied by
at least one person. They also found documents
pertaining to [the accused] Vu which tended to indicate
he had some connection with the residence, storage of
items such as ballast[s] to be used in marihuana
production and finally two sets of car keys which opened
the two vehicles parked in the back yard. The sets of
keys which opened the Honda also opened locks for the
residence, including one of two locks securing the
basement entry to the marihuana grow area.
Because of the clandestine nature of marihuana growing
operations, it is reasonable to expect the materials used
to operate such an enterprise and the final production
results of the enterprise were likely transported on an
ongoing basis to and from the residence in private motor
vehicles. The vehicles parked behind the residence had
been observed there for at least a few hours, so that it
cannot be said their presence on the property was
momentary or incidental. The documents found in the
vehicles were quickly and easily located and did not
apparently involve any dismantling of the vehicle.

Complete case available at www.provincialcourt.bc.ca
Editor’s Note: The Court distinguished this case from
British Columbia Supreme Court case (R. v. Brown
(1997) B.C.J. No. 2642) where the search of a vehicle
not mentioned in the warrant was found to be
unreasonable. In that case, the police searched and
found drugs in a residence not belonging to the
accused. They also found a car key dropped by a third
party. They searched the car they knew belonged to
the accused which was parked partly on the driveway.
Inside the vehicle police found decks of cocaine with
the accused’s fingerprints on them. Romilly J. found
the police did not have reasonable grounds to believe
there were drugs in the vehicle, exigent circumstances
did not exist, and there was no search incident to
arrest. As a consequence the evidence in the Brown
case was ruled inadmissible.

Note-able Quote
“Six ways to bury a good idea; it will never work; we’ve

never done it that way before; we’re doing fine without
it; we can’t afford it; we’re not ready for it; and it’s not
our responsibility”. Author unknown

13

CARE & CONTROL: BEDROOM
DEFENCE ACCEPTED
R. v. Bishop, 2002 BCPC 0006
The accused had consumed seven to
eight beer at a motel pub after having
driven there following an argument
with his spouse. Not wanting to go
home and not having enough money to
purchase a motel room nor anywhere else to go, the
accused decided to sleep in his pickup truck until
morning. During his sleep, the accused awoke and
started his truck to allow the heater to warm the
interior, but later fell asleep with the engine running.
Police found the accused asleep in his truck slumped
behind the steering wheel. The engine was running, the
automatic transmission was in park, and the emergency
brake was on, as well as the radio. As a result, the
accused was charged with being in care control of a
motor vehicle while impaired and having a blood alcohol
level in excess of 80 mg%.
At trial, the Crown relied on the presumption found in
s.258(1)(a) of the Criminal Code which provides that a
person who occupies the operator’s seat of a vehicle is
deemed to have care control of the vehicle unless they
prove that they did not occupy that position for the
purpose of setting the vehicle in motion. In this case,
the trial judge accepted the evidence of the accused
that his intent was to sleep in the vehicle rather than
to occupy the driver’s seat for the purpose of setting
the vehicle in motion. Furthermore, the Crown was
unable to establish care and control independent of the
presumption. In dismissing the charges, Gill J. at para.
11 stated:
In the case at bar there is no dispute that the vehicle’s
motor was running. However given that the transmission
was in “Park” with the emergency brake activated and the
accused asleep, I conclude that the risk of the accused
unintentionally putting the vehicle in motion, which would
have required a number of discrete steps on his part, was
negligible. His explanation, that because he had no place
to stay he did not intend to drive until the next morning,
combined with the fact that his vehicle was parked in a
motel parking lot and away from any road traffic, renders
any possibility that he may have awakened, changed his
mind and driven away, speculative. The element of care
control not having been proven beyond a reasonable
doubt, the matter is dismissed.

Complete case available at www.provincialcourt.bc.ca

Volume 2 Issue 3
March 2002

DOCUMENTS & ‘HIGHLY
AROMATIC’ ODOUR PROVE
POSSESSION
R. v. Nguyen, 2002 BCPC 0040
Police responded to a report by a
neighbour of a break and enter at a
residence where police found suspects
nearby in possession of large plastic
bags containing marijuana. Police then
went to the home and entered to secure it and ensure
there were no other suspects present. No one else was
located but a marijuana grow operation was discovered.
Police returned with a warrant, searched the premises,
and located 111 marijuana plants and several pieces of
documentary evidence. The accused, who was not
present at the home, was charged with unlawfully
producing marihuana and possession of marihuana for
the purpose of trafficking. There was no direct
evidence that the accused had ever been present or
seen in the home and there were no fingerprints
relating her to the operation, nor were any keys for
the premises found in her possession.
In this case, the Crown relied on circumstantial
evidence and the doctrine of constructive possession
set out in s.4(3) of the Criminal Code. The trial judge
found that there was circumstantial evidence of the
accused’s presence at some point in the house
established through the existence of her personal
documents in the home. Police found a tenancy
agreement signed by the accused, a report of the
rental premises and contents, a hydroponic feeding
program, utilities bills, Visa bills, and banking
documents with the accused name and address, a
photograph of the accused, personal cheques, a life
insurance payment in the name of the accused, and
automobile driver insurance. The landlord also testified
that he leased the residence to the accused and her
daughter and the rent was paid by post-dated cheques
in the name of the accused.
To establish constructive possession under the Code,
the Crown must prove that the accused had both
control over and knowledge of the marihuana grow
operation. Control does not necessarily mean actual
physical control but some power or authority over the
drugs. In this case, the trial judge found the accused
had control over the premises because she was the
lessee, provided the post dated cheques for the rent

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to the landlord, and the hydro, telephone, and cable
were in her name. In taking judicial notice that growing
marihuana is a “highly aromatic plant” along with the
presence of the dated documents found at the home,
the judge was satisfied that the accused had taken the
documents there and therefore would have known
about the grow because of the odour. Furthermore, the
accused was paying the $400 a month hydro bill. In
finding possession proven, Challenger J. stated:
With respect to the evidence of other possible persons
in the home, I have considered s.4(3)(b) and the doctrine
of constructive possession. It is clear [the accused] had
control of the premises as the lessee, as the payer of the
rent and utilities. Whether others were utilizing the
premises does not negate her control, according to all of
the evidence before me, nor her knowledge. I also note
that the other person who apparently resided at that
home was closely connected to the accused, sharing life
insurance and car insurance.

As a result, the accused was convicted of both counts.
Complete case available at www.provincialcourt.bc.ca

CRIMINAL CONVICTIONS DO
NOT BAR CIVIL SUIT
Vlad v. Edmonton (City) Police Service,
2002 ABQB 108
The plaintiff was convicted of the
Criminal Code offences of assaulting a
police officer with the intent to
resist arrest and obstructing a police
officer in the execution of his duty
and offences under Alberta’s Highway Traffic Act of
running a red light and failing to stop for police. His
appeals from conviction were dismissed by Alberta’s
Court of Queen’s Bench, the Alberta Court of Appeal,
and the Supreme Court of Canada. The accused, now
plaintiff, seeks damages against the defendants
Edmonton police chief, Edmonton City Police Service,
and a named police constable in the amount of $3
million alleging unreasonable use of force and Charter
breaches. The defendant police applied to the Alberta
Court of Queen’s Bench for an order requiring the
plaintiff post a security for costs of the court
proceedings; they argue that the plaintiff has
insufficient funds to pay the estimated $96,000
defence costs if he loses. They also argued that “the
events giving rise to the criminal convictions are
exactly the same as those giving rise to the civil

Volume 2 Issue 3
March 2002

proceeding” and by asking the civil court to come to a
different conclusion the plaintiff is launching a
collateral attack on the convictions. Furthermore, the
defendants allege his claim is “frivolous and vexatious
and an abuse of court process”.
On the other hand, the plaintiff argued that this
proceeding was not a collateral attack on the criminal
proceedings but finds merit in Charter breaches not
addressed at the criminal trial such as a strip search
conducted at police headquarters following his arrest.
Moreover, the plaintiff alleges that the actions of the
police contributed to his inability to find work following
this incident.
In finding that the plaintiff has an inability to raise
funds and an order for security costs would
“effectively end” the lawsuit, Moreau J. held it would
not be just and reasonable in this case to require him
to post security for costs and dismissed the
defendants’ application. Furthermore, the Court was
“unable to say that the plaintiff’s case is plainly
without merit” because the plaintiff’s allegations were
not specifically ruled upon at the criminal trial. The
civil trial is set for spring 2002.
Complete case at www.albertacourts.ca

DUTY TO BE AWARE OF
WARRANT LIMITATIONS
R. v. Kyllo, Lubkey, & Toupin,
2001 BCCA 528
The three accused appealed their
convictions to the British Columbia
Court of Appeal. They were convicted
of robbery and in addition, the
accused Kyllo was convicted of murder. Although the
three judge appellate panel overturned their
convictions on the basis of an improper instruction by
the judge to the jury, Hubbard J.A. made additional
comments concerning the execution of the search
warrant that are worth noting.
When the accused was arrested at his home the police
observed a pair of boots on the porch by the back
door. A warrant was later applied to search the whole
house but one was granted only for a search of the
“curtilage” of the house; limiting the search to the
perimeter and area surrounding the outside of the
home. Two officers executed the warrant and the

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boots, which later became important evidence in the
trial, were seized from within the residence by an
officer who did not obtain the warrant. He testified he
thought the warrant was for the whole house while the
officer who obtained the warrant testified he told him
it was restricted to its perimeter. Although the trial
judge concluded that the seizure of the boots violated
s.8 of the Charter, she nevertheless admitted the nonconscriptive evidence under s.24(2) because the
violation was inadvertent, the execution of the warrant
was “exemplary”, and the boots were important
evidence.
Hubbard J.A. however, described the breach as
“serious” because the officer was “under a duty to
make himself aware of the limitations of the warrant”.
As was reasoned, if he had made himself aware, “he
would have known he had no authority to enter and
search the residence”.
Furthermore, even if the
officer was confused about the word “curtilage” as
Crown suggested, the officer has “a duty to clear up
the confusion before executing [the warrant]”.
Moreover, the fact the police carried out the search in
an “exemplary” manner did not mitigate the seriousness
of the breach. “Exemplary conduct is to be expected of
investigating officers whether they enter a house with
consent of the occupants or under the authority
provided by a warrant”. Even if the officer made a
“mistake” in this case, “the failure to make himself
aware of the terms of the warrant before embarking
on its execution demonstrates an absence of good
faith”.
The appeal was allowed and a new trial ordered.
Complete case available at www.courts.gov.bc.ca

‘RESIDUAL’ PRIVACY
INTEREST IN RECOVERED
STOLEN PROPERTY
R. v. Law et al., 2002 SCC 10
The accused’s locked safe, which was
stolen from a restaurant, was
recovered by police after it was
abandoned by thieves and found open
in a field. An investigation into the
theft was completed and the safe was placed in the
exhibit room for return to the owner. However, prior
to its return another officer, aware of but
unconnected to the theft investigation, acted on “a gut

Volume 2 Issue 3
March 2002

feeling” the accused were committing tax violations and
examined the documents inside the safe. The officer
took the documents, many of which he could not
understand because they were written in Chinese
characters, and photocopied them without a warrant or
without consent. The documents provided financial
evidence for offences under the Excise Tax Act. At
trial, the judge held the accused’s righs under s.8 of
the Charter were breached and the evidence was
excluded. This was upheld by the New Brunswick Court
of Queen’s Bench but was overturned by the New
Brunswick Court of Appeal. The principle question on
further appeal to the Supreme Court of Canada was
whether the accused, as owners of the safe,
maintained a reasonable expectation of privacy in the
documents?
Unlike the principle of abandonment where a person
voluntarily relinquishes or discards an item, the
documents were locked in a safe that was stolen; the
accused did not participate in the safe’s ‘abandonment’
in the field. “The mere fact that the police recover
lost or stolen property is insufficient to support an
inference the owner voluntarily relinquished his
expectation of privacy”. Although it would be expected
that the police would conduct an investigation of the
contents to determine the thief, such as a fingerprint
analysis, the examination did not extend to the pursuit
of totally unrelated hunches. Bastarache, J. for the
unanimous Supreme Court held the accused “retained a
residual, but limited, reasonable expectation of privacy
in the contents of their stolen safe” and “one would
have expected the stolen property to remain private
following its recovery, as it was before its theft”.
Furthermore, the plain view doctrine, which permits
the seizure of inadvertently discovered and
immediately obvious evidence coming within the view of
a lawfully positioned officer, was of little assistance
because their was nothing facially wrong with the
documents. In fact, the officer did not inadvertently
detect anything incriminating through the unaided use
of his senses; it wasn’t until after the documents were
translated that the officer formed his grounds. The
appeal was allowed and the evidence ruled inadmissible.
Complete case available at www.scc-csc.gc.ca
For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police
Academy at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

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