IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.

MOTIVE MATTERS: WHY YOU DO
WHAT YOU DO COUNTS
ot too many prosecutors, or police
officers for that matter, want to
gamble on s. 24(2) of the Charter.
Sometimes the gun or drugs get in, but
sometimes they’re out and the factually
guilty are found legally innocent and walk free.
Rather than rolling the dice in the hopes evidence
will be admitted, it is far better to build a Charter
proof case in the first instance. The admissibility
analysis doesn’t take to kindly to willful breaches. A
police officer forging ahead knowing that their
actions are violating constitutional standards is very
often the evidentiary kiss of death. Deliberate
breaches or blatant disregard for Charter rights are
the epitome of bad faith, will aggravate the
seriousness of state action, and likely support
exclusion, all other things being equal.

N

One thing to keep in mind is that a police officer’s
purpose or intention can and often does impact the
legality of their actions. Motive really does matter.
The jurisprudence is rife with examples. Just ask the
Toronto Police officer who stopped a van for traffic
infractions and saw Milton Harris, a passenger, not
wearing his seatbelt as the law required (R. v. Harris,
2007 ONCA 574). Harris was leaning forward and
had his left hand down the small of his back. The
officer was concerned for his safety and ordered
everyone to keep their hands where they could be
seen. He then asked all occupants to identify
themselves, including Harris, so he could check
them out on CPIC. After running Harris the officer
learned he was breaching his bail curfew, arrested
and searched him, and found cocaine tucked in the
waistband of his underwear.
The trial judge threw out the cocaine as evidence,
finding that the police breached Harris’ Charter

rights. Without the cocaine, the Crown had no case
and Harris was acquitted. On appeal by the Crown,
Ontario’s highest court upheld the lower court’s
ruling that asking Harris to identify himself for the
purpose of querying CPIC in the circumstances was
an unreasonable search and seizure. The Court of
Appeal, however, noted that the officer could have
asked Harris to identify himself in order to give him a
seatbelt ticket. If he did this he could have conducted
a CPIC inquiry anyways which would have led to the
same results and the events would have unfolded
exactly the way they did. As Justice Doherty put it, if
the officer had properly understood the limits of his
authorities under Ontario’s Highway Traffic Act and
turned his mind to issuing the ticket for not wearing a
seatbelt, he would have requested identification for
that purpose. The officer would have still learned
Harris was breaching his bail, arrested him, searched
him, and found the drugs. Clearly what the officer
was thinking made the difference on whether or not
a Charter breach occurred. On one hand, asking
Harris for ID to query CPIC was a breach, while on
the other hand asking him for ID to issue a ticket and
then querying CPIC was not!
Another, perhaps more common motive analysis
involves provincial motor vehicle legislation
permitting random vehicle stops. These types of stops
pass constitutional muster as a reasonable limit on
one’s Charter rights if the officer’s reason for stopping
the vehicle falls within the ambit of traffic safety.
However, if the officer arbitrarily stops the vehicle for
reasons only related to general crime prevention or
detection, the stop will not be saved by s. 1 of the
Charter. Hence, in both cases there is an arbitrary
vehicle stop but the constitutionality of the detention
hinges on the officer’s reason for doing so.
Motive matters in almost every action police take. Be
smart. Understand the law.

Be Smart & Stay Safe

Volume 10 Issue 5

Volume 10 Issue 5 - September/October 2010

Highlights In This Issue
Evidence Admissible Despite Charter Breach

6

Unlawful Urinalysis Seizure Admitted

9

Detention Requires Objective Test

11

Informer Privilege Reaches Beyond Courtroom

13

Search Warrant Invalid, But Evidence Admitted

17

Stay Results From ‘Horrendous’ Police Brutality

18

Inmate Has Privacy Interest In Recorded Calls

22

25
Circumstantial
Evidence Supports Conviction
;2<;=2<;>?02@0>;2?02??AB

Involvement With Grow Op Does Not Always
Establish Privacy Interest

26
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Unless otherwise noted all articles are
authored by Mike Novakowski, MA. 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 herein are not
necessarily the opinions of the Justice Institute
of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to
this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.ca.

POLICE
LEADERSHIP
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But justice receives a black eye when it
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PAGE 2
B"':/8'+%8,KL,2060/
National Library of Canada Cataloguing in
Publication Data

Volume 10 Issue 5 - September/October 2010

THREE JUDGES, THREE VIEWS
ON POLICE ACTIONS
R. v. Dault, 2010 QCCA 986
Shortly after midnight police checked
a parking lot behind a car wash
adjacent to a bar. They knew from
experience that users of the bar
regularly parked in the lot. They saw
several vehicles, including one occupied by two
people. The vehicle was running, the lights were off,
and the windows were defrosted, unlike other
vehicles in the lot. One officer went to the passenger
side while another approached the driver’s side. The
driver's door was ajar and an officer smelled a strong
odour of alcohol. He knocked on the window, but
the accused, who did not react, was facing the
passenger. The officer at the passenger side noted
movement of hands on the dashboard of the vehicle
and the presence of a case with a credit card. He
opened the door and saw the passenger forming a
line of cocaine. He yelled to his partner about the
drugs. The officer at the driver’s side then opened the
driver’s door. The accused, occupying the driver’s
seat, appeared intoxicated; he was unable to exit the
car and stand, had a very pasty mouth, difficulty
speaking, a strong breath of alcohol, and was
incoherent. Both men were arrested, informed of
their rights, and taken to the police station. The
accused provided two breath samples; 127mg% and
124mg%. He was charged with ss. 253(a) (impaired)
and (b) (over 80mg%) of the Criminal Code and
possession of cocaine under the Controlled Drugs
and Substances Act.
At trial in the Court of Quebec one of the officers
testified he was suspicious and wanted to see what
the occupants were doing and whether they were
capable of driving the vehicle. The accused argued
that his detention was illegal and arbitrary under s. 9
of the Charter and that he was subject to an
unreasonable search under s. 8, which included
opening the car doors. In his view, the evidence
should have been excluded under s. 24(2). The
Crown, on the other hand, submitted that the police
were acting under their general powers to maintain
peace and public order, crime prevention, and
public safety.

The trial judge agreed with the accused and
concluded that the police action in opening the
doors was not justified under Quebec’s Highway
Safety Code (HSC), the Criminal Code, common law
or any other law permitting police to stop people in
a motor vehicle. The police had no suspicion in
relation to the commission of a crime, no suspicion
in connection with the operation of a motor vehicle,
nor any reasonable or probable grounds or
articulable cause justifying such an intervention. The
detention was arbitrary and the evidence was
obtained in violation of the accused’s Charter rights.
The evidence was excluded under s. 24(2) and the
accused was acquitted of all charges. The Crown’s
appeal to the Quebec Superior Court was
unsuccessful, so it challenged the lower court’s
ruling to the Quebec Court of Appeal.
The Crown again submitted that the police could
lawfully, under their general powers or under
provincial motor vehicle legislation, approach the
accused’s vehicle to check if everything was okay
and, having arrived near it, make more observations
which justified the accused’s detention and arrest for
impaired. The accused, on the contrary, suggested
the police were fishing, had no reason to approach
the vehicle, and their actions were unconstitutional;
thus the evidence inadmissible.
In its decision, the justices of the Quebec Court of
Appeal delivered three separate opinions.

Say One (Evidence In)
Justice Dalphond held that the lower courts erred.
He noted there were six aspects to this case which
rendered the police action in approaching the
vehicle lawful:
1. The police were patrolling the area when they
noticed the presence of the vehicle with two
occupants, its engine running, windows
defrosted, and lights out. They were not acting
as part of an investigation nor responding to a
call. Rather, they were proceeding under their
general powers.
2. They were in a public space, a parking lot
apparently open to all. After parking their

PAGE 3

Volume 10 Issue 5 - September/October 2010
vehicle the officers walked toward the accused’s
car. They did not enter a private area under the
accused’s control and it was lawful for any
person to do what the police did without
violating any law.
3. The accused was in a stationary vehicle, the
windows were defrosted, and it was in a lighted
space. Anyone who approached the vehicle
could then see inside it. The presence in a motor
vehicle does not attract an expectation of
privacy for the driver as high as the presence in
his residence, let alone the passenger. In these
circumstances the police, like any other person
who approached the vehicle, could legally
observe what was happening.
4. The accused’s vehicle was stopped when the
officers spotted and approached it on foot to
conduct a check. The police vehicle (with
emergency lights off) was not parked in order to
prevent the departure of the accused’s vehicle.
The police did not detain the accused or his
vehicle. A reasonable person would not have
concluded that a detention had yet crystallized
5. The driver's side window was ajar and on
reaching near the vehicle, the officer noted a
strong odour of alcohol. He knocked on the
driver's window without the accused reacting
by turning to him. This, along with other
information already noted (eg. near a bar, late
Saturday night hour, engine running with
headlights off), was sufficient to conclude that
the officer had enough to reasonably suspect
that the accused had custody or control of a
vehicle and had consumed alcohol, requiring
him to submit to coordination tests or to provide
a breath sample pursuant to s. 254 of the
Criminal Code. The officer also had reason to
suspect the presence of alcohol within the
meaning of s.636.1 of Quebec’s HSC.

breath test. Opening the doors did not make the
police action arbitrary. Police may patrol to ensure
peace and security, prevent the commission of crime
and assist citizens. As part of their general powers
while on routine patrol police can talk to people and
ask them questions. The police had no specific crime
in mind and even less evidence that a crime was
being prepared or was in progress. They simply
wanted to check a stopped vehicle, which had
attracted their attention: did the driver need help?
were the passengers engaged in illegal activity? did
the driver hesitate to put the vehicle in motion
because they were impaired? Once near the vehicle
the police could legally make observations, visual
and olfactory. There was no detention, nor a search
or seizure at this time.
With the new observations made near the vehicle
the accused could then be detained to investigate
his ability to drive or have a vehicle under his
control. The circumstances had changed: the police
were acting on more than a simple intuition or
"hunch". The detention was not arbitrary. The
olfactory and visual observations made at the
driver's door was not an unlawful search. The officer
then had reasonable grounds to intervene by asking
the driver to submit to testing (detention for
investigative purposes).

6. The police detected the strong odour of alcohol,
before they saw the line of cocaine on the
dashboard of the vehicle.

Justice Dalphond, however, found that opening the
door did breach s. 8. The officer did not have
grounds to believe that a crime was being
committed - his partner did not tell him about the
line of cocaine he saw on the approach to the
vehicle. But shining a flashlight would have put this
in plain view anyways. The intrusion was unplanned
and committed in good faith. Additionally, opening
the door was imminent because the officer wanted
to ask questions following the detection of a strong
odour of alcohol; it would have been inevitable that
the accused would have been asked to leave the
vehicle to give a test or submit to a breath sample.
The vehicle’s interior would have been illuminated
and the line of cocaine on the dashboard would
have been discovered.

The evidence gathered before the opening of the
doors was sufficient to justify the detention of the
accused for the purposes of coordination tests or a

The evidence obtained as a result of the illegal
search needed to be distinguished from the other
evidence. There was no reason to exclude the

PAGE 4

Volume 10 Issue 5 - September/October 2010
evidence gathered before police opened the doors.
This included evidence related to impairment. And
the evidence obtained after the doors were opened
was admissible under s. 24(2). Justice Dalphond
allowed the Crown’s appeal and ordered a new trial.

Say Two (Evidence In)
Justice Gagnon found that s. 636 of Quebec’s HSC
did not provide the police with lawful authority in
this case to open the doors. Although s. 636 allows
the police to immediately stop a vehicle and
question the driver to verify sobriety, it does not
always allow the police to search while exercising
this authority. Opening the passenger door without
warning, followed by opening the driver’s door, was
not helpful for the exercise of powers conferred on
the police under s. 636. The officer on the driver’s
side, at first, knocked on the glass door. If opening
the passenger door constituted an unreasonable
search, then so did opening the driver’s door. The
officer did not say he opened the door to check the
sobriety of the driver, but instead in response to his
colleague. It was not reasonably necessary to
conduct such a search in the exercise of powers
conferred in ss. 636 and 636.1 of the HSC, at least at
the preliminary stage of the sobriety check.
The common law also did not allow the officers to
search the vehicle without reasonable grounds for
suspecting the commission of a crime. The accused’s
Charter rights had been violated. But Justice Gagnon
agreed that the evidence should not be excluded.
Although the intrusive conduct of the police was
significant, the search did not violate the personal
dignity of the accused and did not occur in the
context of a high reasonable expectation of privacy.
Furthermore, possessing cocaine was a serious
offence and the seized drugs were reliable evidence
and vital to the prosecution. The circumstances
surrounding the acquisition of the evidence was not
likely to bring the administration of justice into
disrepute. Rather, it was its exclusion that would
bring disrepute. Justice Gagnon allowed the appeal
and ordered a new trial.

Say Three (Evidence Out)
Justice Hesler concluded that the trial judge did not
err. His findings were neither unreasonable nor
based on a mistake or misinterpretation of the law.
At trial, the Crown only argued that the police had
acted under their general power of detention for
investigative purposes under the common law,
without any recourse to the powers conferred by s.
636 of the HSC. Here, the trial judge found there
were no concrete or articulable reasons for the
detention; it was exerted on the basis of a hunch. It
was not the role of an appeal court to substitute its
opinion for that of the trial judge; an appeal court
must show deference to a lower court’s findings. In
this case, the only evidence against the accused was
collected in violation of his rights; it could not be
collected independently, without the breach. In
Justice Hesler’s opinion, the use of the illegally
obtained evidence would affect trial fairness and
bring the administration of justice. He would have
dismissed the appeal.
Complete case available at www.canlii.org

!"#$!!%&'("$)*+
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PAGE 5

Volume 10 Issue 5 - September/October 2010

EVIDENCE ADMISSIBLE DESPITE
CHARTER BREACH
R. v. Simard, 2010 QCCA 1240
Late in the evening police drove past
a church and saw two vehicles
parked side by side in a remote
corner; no other vehicles were
parked nearby. The officer felt it was
unusual to see vehicles parked there, but noted
nothing suspicious. The vehicles were parked legally,
there was no offence under Quebec’s Highway
Safety Code, and there was no 9-1-1 call. One of the
vehicles had two men sitting in it. The police
decided to check it out and parked right in front of
the vehicle occupied by the two men. They turned
on their take down lights; very high intensity bulbs
on the front of the patrol vehicle used to illuminate
vehicle interiors. Behind the occupied vehicle were
the steps to the front of the church, so the men could
not back out and it was almost impossible for them
to drive away; the vehicle was stopped and the
occupants were not free to move. The police saw the
two men make sudden movements, as if concealing
something. The patrol vehicle was higher than the
other car, which allowed police to see the two men.
The driver was seen lean forward and the passenger
was seen hiding something in the front pocket of his
sweater. An officer took his flashlight, opened his
door and proceeded at a rapid pace towards the
accused (passenger), while his partner ran to the
driver's side. The accused had his left hand over his
pocket as if he was hiding something. The officer
ordered the accused to show him what he had in his
pocket, but he refused. He was ordered out of the
vehicle. While this was happening the other officer
leaned into the vehicle and smelled a strong odour
of bulk marihuana.
The officer stepped back to allow the accused to
open his door and he then immediately fled and ran
to the back of the church. He was apprehended and
was arrested for drug trafficking. Inside the accused’s
shirt pocket was a plastic “Ziploc” type bag filled
with 98 grams of marihuana. He was advised of his
right to remain silent and his right to counsel. A
search revealed a $5 bill, a key ring, and nine $20
bills in his pockets. The driver was also arrested for

drug trafficking. He was searched and 27 grams of
marihuana was found in his jean pocket. Key’s found
on the accused activated the unlock function of the
other vehicle parked nearby. Police opened the
driver's side door to search for evidence of the
accused’s identity and to see if the ignition was
damaged. The center console was opened and a
wallet containing the accused’s identification and a
roll of $20 bills fastened with a rubber band,
totalling $1,360, was found. A heavy bag containing
clear plastic bags of marihuana and three mobile
telephones was also located. The vehicle was towed
to the police station and a justice subsequently
issued a telewarrant authorizing the search of the
vehicle. Police found 510 cartons of cigarettes in the
car. The accused’s residence was also searched
under warrant (he had told police he had marihuana
plants at his home). He was charged with several
tobacco and drug offences.
The trial judge concluded that the detention was
arbitrary and that the search was improper because
it was incidental to that arbitrary detention. In
addition, the detention was for investigation and the
search had not been conducted in order to ensure
the safety of the police officers. He found the
accused had been psychologically detained before
the officers detected the odour of marijuana and
ordered the accused to show what he had in his
pocket. The police acted as if they had reasonable
grounds to believe that a criminal offense was
committed or was about to be and accordingly took
actions that detained the accused. The police had
placed their patrol car in such a position that it
prevented the vehicle from moving. They turned on
their high intensity lights to see inside and had the
intention to search the vehicle visually; to see what
was happening. But they had no reason to think,
objectively or subjectively, that even an offense had
been committed or was about to be committed. The
police could have driven close to the vehicle, parked
next to it, and with a flashlight, address the
occupants, greet them, or ask them if they needed
help. But this is not what the police did. Instead,
they acted as if they had reasonable grounds to
believe that a criminal offence was committed. Plus,
even if there were grounds for an investigative
detention, the search would have exceeded its

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Volume 10 Issue 5 - September/October 2010
limited safety scope. The police did not search for
their protection, but instead thought the accused had
drugs in his possession. Finally, the trial judge held
that the mere smell of marihuana did not provide
reasonable grounds that there were drugs on the
accused, especially in regard to a passenger in the
car. The evidence was excluded under s. 24(2) of the
Charter and the accused was acquitted of all
charges.
The Crown argued before the Quebec Court of
Appeal that the trial judge erred in finding a
detention and that the evidence should not have
been excluded. Justice Doyon, delivering the Court’s
unanimous judgment, agreed there was a Charter
breach but ruled that the evidence was admissible.
The Court of Appeal noted, as did the trial judge,
that the two police officers were fully justified to go
to the two vehicles to check them out. When a car is
parked in public view the police can approach it to
see, for example, if someone needed help, if the
vehicle was abandoned, or if the situation called for
other reasons to intervene. However, how the police
park their patrol vehicle, use high-intensity
headlamps, and conduct themselves can render the
circumstances a detention. Here, there was more
than just the use of high-intensity headlamps
involved, but also the parking maneuver performed
by the police. The police car was positioned in such
a manner that it prevented, for all practical
purposes, the departure of the vehicle occupied by
the accused.
Without completely rejecting safety grounds for
explaining the use of the high intensity headlamps,
the trial judge concluded that the police intended to
visually search the vehicle. In sum, the trial judge
did not make a palpable and overriding error in his
evaluation of the evidence. It would be difficult to
believe that two individuals could freely leave or, at
the very least, it could be easily inferred that a
reasonable person dazzled by high intensity police
headlamps, prevented from moving by the
placement of a patrol vehicle, and facing two police
officers who moved quickly, would have concluded
he had no choice but to comply with this implicit
order and stay put. Following the initial interaction,
when the officer asked the accused what he had in

his pocket and told him to leave the vehicle, the
accused was controlled by police and detained.
As for the grounds for detention, one officer testified
he simply saw the accused reach into his pocket; he
could not say whether there was an object in his
hand or not. The other officer said he saw the driver
gesturing somewhat similar, but had not seen him
hide anything. The trial judge opined that the police
did not see what the men had done or even if they
had something in their hands. There was no clear
link between the individual to be detained and a
recent or ongoing criminal offence and the smell of
marijuana emanating from the vehicle was not
sufficient to order the accused, a passenger, out of
the car and to empty the contents of his sweater
pocket.

Admission of Evidence
The Court of Appeal, however, found the trial judge
erred in excluding the evidence. The accused had
not been conscripted against himself when the bag
of marihuana was discovered in his sweater. This
evidence existed without police intervention and it
could not be said that the accused was forced to
participate in its creation or discovery; it was simply
seized during his arrest. The police misconduct was
serious, but it was not very serious. The impact of the
Charter violations on the accused was also serious,
but not extreme. The probative value of the evidence
was significant and its exclusion would result in an
acquittal. Weighing all of the relevant factors and
analyzing them according to the revised s. 24(2)
approach, the evidence should have been admitted.
The Crown’s appeal was allowed, the acquittals
were set aside, and a new trial was ordered.
Complete case available at www.canlii.org

Note-able Quote
“No institution can possibly survive if it needs
geniuses or supermen to manage it. It must be
organized in such a way as to be able to get
along under a leadership composed of
average human beings.” - Peter Drucker

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Volume 10 Issue 5 - September/October 2010

‘NO FREE-STANDING’
OBLIGATION ON POLICE TO
PROVIDE GROUNDS TO LAWYER
R. v. McLean, 2010 BCCA 341
At about 8:30 pm two vehicles were
involved in an accident while
travelling in opposite directions. The
accused was driving a pick-up truck
with his twelve year old son in the
front passenger seat. As he turned left he collided
with an on-coming pick-up truck killing its driver.
Neither the accused nor his son were injured. The
accused had an odour of liquor on his breath, his
face was flushed, his eyes were bloodshot and
watery, and he seemed to be swaying three to four
inches from side to side. When asked if he had been
consuming alcohol the accused said “no”. When
asked again about his consumption of alcohol that
day he said that he had “three beers” and consumed
his last drink at 1 p.m. After further conversation he
said that his last drink was at 2 p.m. The officer
advised the accused that he was being detained for
impaired driving causing death and read him the
breathalyzer demand and s. 10(b) Charter warning.
The accused was taken to the local police
detachment and then directly to a telephone
room. He spoke to his lawyer on the telephone and,
after speaking for about 20 minutes, motioned for
the officer to come into the room to speak to his
lawyer. The lawyer identified himself to the officer
and asked him to provide his reasonable and
probable grounds for making the demand. The
officer told him that the grounds would be
forwarded by way of disclosure. The lawyer told the
officer that the law required him to provide his
grounds, but the officer disagreed and gave the
phone back to the accused, who then carried on the
call in private for about 10 minutes and then hung
up. The accused provided two samples of his breath,
now three and a half hours after the collision, which
analyzed as 140mg% and 130mg%.
At trial in British Columbia Supreme Court the judge
rejected the accused’s submission that his right to
counsel had been breached when the officer failed

to provide the grounds for the demand to the lawyer.
The judge found that the accused had failed to
establish that he was denied information that was
necessary to giving legal advice that counsel could
not have obtained by other means such as asking the
accused. A toxicologist testified that the accused’s
blood alcohol levels would have been between
168mg% and 206mg% at the time of the accident,
based on the readings. However, based on the
accused’s version of his drinking pattern he would
have been below the legal limit at the time of
driving. The trial judge rejected the accused’s
evidence and convicted him of impaired driving
causing death, over 80mg%, and dangerous driving
causing death.
The accused argued before the British Columbia
Court of Appeal, in part, that his right to retain and
instruct counsel was violated when the investigating
officer refused to disclose to his lawyer the grounds
for making the breath demand. He wanted his
convictions set aside and acquittals entered or, at the
very least, a new trial ordered.
Justice Ryan, authoring the unanimous Court of
Appeal judgment, disagreed with the accused.
Neither the accused nor his lawyer testified on the
voir dire to assert that the officer’s action in not
stating his grounds for the breathalyzer demand
actually impaired the accused’s ability to obtain
legal advice. There is no “free-standing obligation on
the part of the police to provide the grounds upon
which the breath demand was made to counsel for
the person to whom the demand has been made,”
said the Court of Appeal. Here, the accused “failed
to establish that his right to counsel was impaired by
the action of the state,” explained Justice Ryan.
“Regardless of whether [the lawyer] might have
obtained the required information from his client or
not, neither [the accused] nor [the lawyer] testified
that [the lawyer’s] ability to provide legal advice to
[the accused] was impaired by the actions of the
police officer.” Thus, there was no basis in the
evidence to find that the accused’s s. 10(b) rights
were infringed. The accused’s appeal was dismissed.
Complete case available at www.canlii.org

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Volume 10 Issue 5 - September/October 2010
Editor’s Note: The British Columbia Court of Appeal
did not say that the police never have to inform a
lawyer of the grounds for the demand. There may be
cases where the lawyer can’t get the necessary
information from the accused and s. 10(b) may
impose an obligation on the police to provide
counsel with that information. In this case, however,
there was no evidence presented to show that the
lawyer’s ability to provide legal advice was
inhibited; neither the lawyer nor the accused
testified.

UNLAWFUL URINALYSIS SEIZURE
ADMITTED
R. v. Ramage, 2010 ONCA 488
A vehicle driven by the accused, a
former NHL hockey player, crossed
four lanes of traffic on a busy fourlane road and struck two oncoming
vehicles, killing his passenger
(another former NHL hockey player). The driver of
one of the other vehicles suffered significant, but not
life threatening injuries. It was dusk, the weather was
clear, visibility was good, the road was dry, and
traffic was steady but not heavy. Some observations
were made that included a smell of alcohol in the
vehicle and an odour of alcohol on the accused’s
breath. His eyes were glassy and red and his pupils
were dilated. A police officer accompanied the
accused to the hospital in the back of the ambulance
where he made two statements that indicated he had
been drinking. While at the hospital a nurse drew a
blood sample for medical purposes. Part of that
blood sample was analyzed for blood alcohol
content (BAC) at the hospital laboratory. The police
later seized the results of that analysis (224mg
%). The unused portion of the blood sample taken
for medical reasons was later lawfully seized with a
warrant by the police and analyzed (242mg%). The
accused also urinated into a plastic container
provided by the hospital staff. A police officer having
custody of the accused at that time transferred some
of the urine from the container into two vials,
seizing them. They were subsequently analyzed
(282mg%). Later, the accused urinated a second

time and the officer again seized two vials of that
urine and they too were analyzed (237mg%).
At trial in the Ontario Superior Court of Justice a
toxicologist called by the Crown testified that the
analysis of the blood and urine samples indicated a
significant level of impairment at the time of the
accident. He opined that a person with the accused’s
physical characteristics and an average rate of
alcohol elimination would have had to consume
between 15 and 20 bottles of beer to produce the
BAC levels indicated in the blood and urine analysis.
The Crown conceded that the urine samples taken
by police constituted a warrantless seizure and
violated the accused’s rights under s. 8 of the
Charter. But the results were admitted under s. 24(2).
Although he characterized the urine samples as
conscriptive evidence, the trial judge held the
samples would inevitably have been obtained by
non-conscriptive means (a search warrant). The
urinalysis results were reliable evidence and their
admission would not adversely affect the truthseeking function at trial. The officer was entitled to
be in the room with the accused, did nothing to
cause him to urinate, and had merely collected and
preserved what he knew could be potentially
relevant evidence. The intrusion upon the accused’s
bodily integrity was “minimal”. Finally, the evidence
was “highly probative” and important to the Crown’s
case, the charges were serious and excluding the
results of the urine samples would bring the
administration of justice into disrepute. The accused
was convicted by a jury on five charges; impaired
driving causing death, dangerous driving causing
death, impaired driving causing bodily harm,
dangerous driving causing bodily harm, and over
80mg% (which was stayed by the trial judge). The
accused was sentenced to four years in jail and a
five-year driving prohibition was imposed.
The accused then appealed to the Ontario Court of
Appeal arguing, in part, that the trial judge erred in
not excluding the urinalysis results and that the
accused could not be convicted of both the
dangerous driving and the impaired driving charges
arising out of the same delict. He suggested that the
dangerous driving charges should have been stayed.

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Volume 10 Issue 5 - September/October 2010

Admissibility
In determining whether evidence is admissible
under s.24(2) a court must consider:
• The seriousness of the Charter-infringing state
conduct;
• The impact of the breach on the Charter-protected
interests of the accused; and
• Society’s interest in the adjudication of the case
on its merits.
Justice Doherty, authoring the Court of Appeal
opinion, noted there was nothing seized from the
accused’s person nor from inside his body. The
officer was never asked to leave the room and his
presence did not interfere with the accused’s
medical treatment or his privacy. The officer did
nothing to make the accused urinate or remove the
urine from his body. He merely stood by and
allowed nature to take its course. Justice Doherty
compared the seizure of the urine sample to the
seizure of a discarded tissue by an arrestee in
custody. It was because the accused was in custody
that the officer was able to secure the bodily waste
product after the accused had urinated but before
the urine was discarded. Nonetheless, the accused
still had a legitimate interest in preserving the
informational privacy embedded in his urine
samples, including information pertaining to his
blood alcohol level.
Seriousness of the Charter- infringing state conduct.
Under this branch of the s. 24(2) analysis a Court
“looks both at what the police did and their attitude
when they did it,” said Justice Doherty. “Respect for
the justice system must suffer in the long
term if courts routinely admit
evidence gathered by state conduct
favours
that disregards individual rights.” The
exclusion
officer’s attitude showed little respect
for the accused’s individual rights and
rendered the Charter-infringing state
conduct more serious than it might have been. The
officer, alert to the need to obtain evidence relating
to the accused’s BAC, took a shortcut to get the urine
samples. He took advantage of the accused, who
was under his control and in significant physical

discomfort. He had no authority to take the urine
samples, but did so on two occasions. He could
have had the hospital secure the samples and
obtained a warrant, which would likely have been
granted; this would have respected the accused’s
constitutional rights. But his conduct did not
demonstrate the kind of disregard for individual
rights that would be seen, in the long term, as posing
a significant threat to the public confidence in the
due administration of criminal justice.
Impact on accused’s Charter-protected interests.
“The [accused’s] continued privacy interest in the
information to be gleaned from his discarded bodily
waste is well-removed from the essential core of
personal privacy,” said the Court. “The
[accused] gave up his waste product
without any state compulsion or
favours
interference.” The officer could have
admission
segregated the sample and obtained a
warrant for it, which would have
yielded exactly the same evidence that was
presented at trial.
Society’s interest in an adjudication on the merits.
The urinalysis results were reliable and potentially
significant to the prosecution. “The exclusion of the
urinalysis results would inevitably have hindered the
search for the truth in this case,” said
Justice Doherty. “That cost is high
favours
given the relatively minor adverse
effect on the [accused’s] Charteradmission
protected interests.”
The evidence was properly admitted.

Kienapple

delict = fault, crime, wrong

In some circumstances, multiple convictions arising
out of the same delict are not permitted. In this case,
there were discrete offences. There is a distinction
between offences based on the manner in which a
person drives and offences based on the impairment
of one’s capacity to drive. As Justice Doherty stated:

PAGE 10

An impaired driving charge focuses on an
accused’s ability to operate a motor vehicle or,

Volume 10 Issue 5 - September/October 2010
more specifically, on whether that ability was
impaired by the consumption of alcohol or some
other drug. A dangerous driving charge focuses
on the manner in which the accused drove and,
in particular, whether it presented a danger to
the public having regard to the relevant
circumstances identified in s. 249 of the
Criminal Code. The driver’s impairment may
explain why he or she drove the vehicle in a
dangerous manner, but impairment is not an
element of the offence. Both impaired driving
and dangerous driving address road safety, a
pressing societal concern. They do so, however,
by focussing on different dangers posed to road
safety. Impaired driving looks to the driver’s
ability to operate the vehicle, while dangerous
driving looks to the manner in which the driver
actually operated the vehicle. [para. 64]

that he was not obliged to answer any questions but
that he would appreciate it.

Here, the accused’s conduct could not be described
as the same delict. He committed the crime of
impaired driving when he got into his vehicle and
drove it. The dangerous driving occurred about a
half an hour later when he drove across four lanes of
traffic into oncoming vehicles. The accused’s appeal
was dismissed.
Complete case available at www.ontariocourts.on.ca

DETENTION REQUIRES
OBJECTIVE TEST
R. v. Tran, 2010 ABCA 211
After stopping a vehicle for a traffic
violation, a police officer approached
the passenger side of the accused’s
vehicle and asked for a licence,
registration, and insurance. He saw
such things as fast food wrappers and a road map.
After further investigation the officer warned the
accused about his driving and vehicle safety. Having
a hunch, the officer wanted to continue speaking
with the accused but he knew he did not have
grounds to detain or search the vehicle, so he sought
the accused’s voluntary cooperation. He told the
accused that he was free to go. But as he was about
to drive away, the officer asked the accused in a
conversational tone whether he would be willing to
answer a few questions. The officer told the accused

The officer asked the accused where he had been
and where he was going. The officer also placed his
hands on the open car window. The accused was
cooperative, stating he was a real estate agent. They
discussed the real estate market and recent news
events. The officer asked whether the accused had
any objections to a search of his vehicle. The
accused told him to go ahead. The officer then said,
“Okay. So you don’t object if I search your vehicle,
understanding it’s voluntary. You can stop me if you
want, and if I find anything like drugs, cocaine, and
marijuana, you’d be charged.” The accused replied
“It’s okay.” He was not advised of his right to
counsel, nor expressly told that he could refuse to
consent. The officer asked him to step out and pop
the trunk. The accused got out of his vehicle and
walked to the rear where he pushed a button to
unlock the trunk. As he did so, he placed his hand
on the trunk to prevent it from opening. A brief
discussion about real estate occurred and the officer
said, “Go ahead and pop the trunk if you want.” The
accused opened the trunk and police found eight
kilograms of marijuana, two kilograms of cocaine,
and $10,000 cash in a suitcase. The accused was
arrested, read a Charter warning, handcuffed, and
transported to the police station.
At trial in the Alberta Court of Queen’s Bench, the
judge found the accused had been arbitrarily
detained. The accused testified he was not free to
leave and felt compelled to answer the officer’s
questions. The trial judge concluded that the
accused was detained following the completion of
the motor vehicle transaction when the officer asked
him if he would mind answering a few questions.
Even though the officer said the accused was free to
go, he did not tell the accused he was neither under
arrest nor detained. Plus the officer placed his hands
on the open window; the accused could not have
driven away in these circumstances without inviting
some other charge. Although the officer had the right
to stop the accused for the traffic violation, the
officer did not have a reasonable suspicion or
reasonable grounds for this further detention. The
search was also unreasonable under s. 8 of the
Charter. It was a warrantless search and the police

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Volume 10 Issue 5 - September/October 2010
did not have reasonable grounds to effect a lawful
arrest or to obtain a warrant. Nor could the search
be justified on safety concerns or on the legitimate
investigation of crime, since it was based solely on a
hunch or experiential intuition. Additionally, the
Crown failed to establish valid consent; the officer
failed to expressly tell the accused that the vehicle
could not be searched without his consent. Finally,
the judge concluded that once the detention
occurred the officer had a duty to inform the
accused of the reason for his detention and of his
right to counsel, thereby breaching s. 10 of the
Charter. Having characterized the evidence as
conscriptive, the trial judge excluded it under s.
24(2) because its admission would bring the
administration of justice into disrepute. The accused
was acquitted of possessing drugs for the purpose of
trafficking.
The Crown challenged the trial judge’s rulings to the
Alberta Court of Appeal, arguing he erred by finding
breaches of ss. 8, 9, and 10 of the Charter. In the
Crown’s view, the trial judge erroneously concluded
that the accused was detained in the absence of
objective evidence that he was subject to a demand
or direction of a peace officer; thus s. 9 was not
applicable nor was s. 10 engaged. As well, the
Crown contended that a valid consent to search
does not require the police to specifically advise the
person to be searched that their consent is sought in
relation to something that the police “are not
otherwise entitled to do”. Finally, the Crown
submitted that the evidence was excluded because
the trial judge applied the wrong test under s. 24(2).

Detention
The Court of Appeal noted that a detention can
occur psychologically, where a person has a
reasonable perception of the suspension of their
freedom of choice. The application or threat of
application of physical restraint is not required. The
question is whether police conduct would cause a
reasonable person to conclude that they were not
free to go and had to comply with the police
direction or demand. Here, the Court of Appeal
found the trial judge applied only a subjective test in
determining that the accused was detained. He
failed to determine whether a reasonable person

would perceive they had no option but to cooperate.
Thus, the trial judge erred in law by failing to use an
objective test when considering whether the accused
was psychologically detained in all of the
circumstances. In addition, “the trial judge erred in
law in concluding ... that the police say more than
just telling a person that he is free to go,” said the
Court of Appeal. There is no mandatory script that
needs be said to a person. Instead, it is important
there be clear communication to the person that
they are free to go.

Search
A search conducted with consent can be valid. Part
of proving valid consent requires the Crown show,
on a balance of probabilities, that it was voluntary;
not the product of police oppression, coercion or
other external conduct which would negate the
freedom to choose whether or not to allow the
police to pursue the course of conduct requested.
Instead, the trial judge held the Crown needed to
prove that the accused knew that the police could
not conduct a search without his consent. But he
didn’t consider whether the accused knew this even
though (a) there was a request for permission to
search the vehicle, (b) the accused was advised that
he was free to go, (c) the accused was asked whether
he had any objections to a search of the vehicle, and
(d) the officer said the search was voluntary and the
accused could stop him if he wanted to. These all
met the criteria required for a valid consent.
Additionally, the trial judge did not assess whether
the accused withdrew his consent when he
prevented the trunk lid from opening, and if so,
whether he consented to the subsequent search.
These questions needed to be answered.
The Court of Appeal also ruled that the trial judge
erred in classifying the evidence as conscriptive in
that the accused was compelled to participate in
finding the drugs and their admission would render
the trial unfair. Since a new trial was ordered there
was no need for a further analysis of the trial judge’s
s. 24(2) ruling.
The Crown’s appeal was allowed, the acquittals
were set aside, and a new trial was ordered.
Complete case available at www.albertacourts.ab.ca

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Volume 10 Issue 5 - September/October 2010

INFORMER PRIVILEGE REACHES
BEYOND COURTROOM
R. v. Barros, 2010 ABCA 116
Based partially on the information of
a confidential informer the police
obtained a warrant to search a home.
As a result, they found 1.5 kgs. of
methamphetamine, 1.5 kgs. of
cocaine, three handguns, and a bulletproof vest.
Drugs and weapons charges were laid against a man
named Qureshi, who retained a lawyer to defend
him. The lawyer, in turn, hired the accused, a retired
police officer and now private investigator, to find
out the identity of the informant. He arranged
meetings with Qureshi’s associates and gave them a
choice of providing their phone numbers, submitting
to a polygraph examination, or being branded
“uncooperative”. He checked their cell phone
records to see if any of them had called the lead
investigator and compared the informer’s disclosed
criminal record with the records of the Qureshi
group members. He also tried to retain a polygraph
operator to test the group, telling each of them that
he knew they were the informer. The accused was
convinced he had identified the informer and
arranged a meeting with the lead investigator. At the
meeting the accused said he had identified the
informer and that he would not pass that information
on to Qureshi, inferring that the charges should be
dropped.
He provided a warned statement to police saying he
discovered who the informant was and knew their
identity with certainty. He also said he knew that if a
police source was identified their health and safety
would be at risk. He knew from his prior police
experience; the protection of a source’s identity was
paramount and it was routine for the Crown and the
police to stay charges if proceeding would result in
the exposure of the informant’s identity. The accused
was subsequently charged with several offences,
including attempting to obstruct justice by taking
investigative steps to identify a confidential police
source for the purpose of interfering with criminal
proceedings against Qureshi. As well, he was
charged with extortion for attempting to induce the
lead investigator in taking steps to stop criminal

proceedings against Qureshi as well as for using
threats to induce the cell phone numbers from
Qureshi’s associates with intent to identify the
source.
At trial in the Alberta Court of Queen’s Bench the
judge concluded that there was no evidence for a
verdict of guilty on the attempt obstruction of justice
ch a r g e . S h e f o u n d t h a t t h e a c c u s ed wa s
constitutionally entitled to take investigative steps to
identify the informer and that his acts were not
criminal in nature. He was also acquitted on the
extortion charge; the Crown had not proven the
objective of “ending criminal proceedings”.
The Crown then successfully appealed the directed
verdict and the acquittals to the Alberta Court of
Appeal. A majority found that attempts to identify a
confidential informer and using the subsequently
discovered information was criminal in nature. In
doing so, Justice Slatter first outlined the basic rules
and principles of police informers and the justice
system.

Police informers
The identity of police informers and information
which might assist in identifying them, is privileged
and the privilege overrides the general duty of the
Crown to disclose all relevant information to an
accused (subject to the “innocence at stake”
exception). The rule of informer privilege serves a
dual purpose; (1) to protect the informer, and (2) to
encourage others to cooperate with the police.
Neither the police nor the courts can waive informer
privilege; the privilege belongs to the Crown and
can only be waived with the informer’s consent. The
rule is also extremely broad. It applies:
• to the identity of every informer; whether the
informer is present or not and even where the
informer is a witness;
• to both documentary evidence and oral
testimony;
• in criminal and civil trials;
• to the police, Crown, lawyers and judges in
their duty to keep an informer’s identity
confidential;

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Volume 10 Issue 5 - September/October 2010
• to any information which might tend to identify
an informer; it is not limited simply to the
informer's name.
Although this privilege allowed the Crown to keep
the information secret, the accused argued that it
didn’t prevent others from trying to discover the
information independently. Further, he submitted
that the privilege only applied in the courtroom; it
did not prevent the collection of information about
the informer outside the courtroom. Finally, he
suggested that there was no rule that prevented him
from discovering the informant’s identity as part of
making full answer and defence.

disclosed by the police, or discovered independently
by the accused,” said Justice Slatter. “In either case,
their safety is jeopardized, and the willingness of
citizens to come forward with important information
is compromised.” This important public policy
depends on secrecy, which would be lost if an
accused had a private right to expose informers.
Thus, an accused person had neither a positive or
claim right to identify a confidential informer.
The majority also rejected the suggestion that
informer privilege only existed inside a courtroom as
part of court procedure and was not binding on
anyone outside the courtroom:

The majority rejected an independent right to
determine an informer's identity, both in the sense
that there was no law prohibiting such investigations
(meaning anything not prohibited was permitted) or
in the sense that the information could be obtained
as part of the positive right to make full answer and
defence. Even if the “innocence at stake” exception
is engaged, the Crown decides whether to produce
the information or stay the charges. “Since the
Crown is not under any duty to disclose the name of
the informer, unless the ‘innocence at stake’
exception is in play, it follows that there is no
general claim right on the part of the accused to
have it,” said Justice Slatter. “There is no principle of
fundamental justice entitling the accused to know
the identity of the informer, because even when
‘innocence at stake’ may require disclosure, the
Crown has the option of discontinuing the
prosecution.” The accused cannot even ask a witness
if they are the informer. Thus, it would be
inconsistent that the most direct form of inquiry is
prohibited, but other collateral inquiries are not only
permitted, but are a right of the accused. There is no
general rule that privileged information need not be
disclosed, but that strangers are entitled to obtain it
by any surreptitious means they can devise. As well,
the majority found that any right to uncover
privileged information by independent inquiries was
inconsistent with the objectives of protecting
informers and encouraging others to cooperate with
the police. “Both the existing informer and the
potential informer will regard it as equally
dangerous regardless of whether their identity is

PAGE 14

Any such rule would make the informer privilege
meaningless and ritualistic. It is artificial to
suggest that information that cannot be spoken
of in the courtroom, but can be freely discussed
anywhere else, is “secret”. Further, the whole
point of the privilege is to protect the informer.
The informer is not at risk of anything happening
to him inside the courtroom; the risk lies entirely
outside the courtroom. The whole point of the
privilege is to prevent the informer’s identity
from getting into the hands of members of the
community who would seek retribution against
the informer. Apart altogether from the lack of
any authority on the point, this position is
illogical.
The informer privilege is commonly referred to
as a “privilege”. Rules of privilege are generally
rules of evidence, and so generally relate to an
exception to the normal rules compelling
production of relevant evidence, or to the
inadmissibility of evidence in judicial
proceedings. The informer privilege has both of
those characteristics. However, ... the informer
privilege is more that just a rule of evidence, and
has a wider societal reach relating to the
effective investigation of crime. It combines
evidentiary implications with a general
requirement of secrecy, both in and outside
judicial proceedings. As such it could more
properly be referred to as a principle of
“immunity” or “secrecy”.
The informer privilege is not like an exclusionary
rule of evidence. Excluded evidence, such as
hearsay evidence or character evidence, is kept

Volume 10 Issue 5 - September/October 2010
from the trier of fact, but it is often repeated and
And further:
relied on in day-to-day life. Such evidence is
Trying to disrupt a prosecution by corrupt means
inadmissible, but it is neither privileged nor
is obstruction. Wilfully suggesting that the
secret. The point of the informer privilege rule is
identity of an informer might inevitably come
not to keep the information from the trier of fact,
out if a prosecution was pursued,
but to keep it from society at
knowing
the risk this would have
large. The mischief is not that the
“Since one of the purposes
on the safety of the informer,
trier of fact might rely on
of the informer privilege is
knowing of the privilege that
unreliable evidence, but rather
attaches
to that information, and
that antisocial members of society
to encourage other
knowing the effect it might have
might seek retribution against the
informers to report crime,
on other potential informers
informer. It defeats the whole
point to say that the privilege is undermining the privilege by coming forward, is a corrupt
means within this rule. Wilfully
respected so long as it is
attempting to identify an
suggesting that the information
maintained within the courtroom,
might be released unless a
even if the privileged information
informer prima facie
prosecution is halted is
is widely distributed outside the
amounts to obstruction...”
obstruction. The evidence here
courtroom. [references omitted,
could support an inference that
paras. 29-31]
the [accused’s] comments to [the lead
investigator] were wilful and calculated to
Informer privilege is binding on all persons, both
convey such suggestions, and could thus
inside and outside the courtroom, and the privilege,
establish the mens rea required for obstruction.
secrecy, or immunity that attaches to the informant
[references omitted, para. 70]

does not end at the courthouse door. Nor did the
right to make full answer and defence extend so far
as to allow the accused to try and ascertain the
identity of the informer.

The Charges: Obstruction & Extortion
As for the attempting to obstruct justice charge, the
majority concluded that the methods used by the
accused to identify the informer were inherently
malevolent and oppressive and inclined to obstruct
justice.
Discouraging the reporting of crimes generally,
and interfering with trials, by intimidating or
discouraging witnesses can be an obstruction of
justice. Since one of the purposes of the informer
privilege is to encourage other informers to
report crime, undermining the privilege by
attempting to identify an informer prima facie
amounts to obstruction, absent a reasonable
justification or excuse. It does so in two ways: it
necessarily intimidates the actual informer, and
it discourages potential informers and witnesses.
The “investigative steps” themselves could, as
alleged, amount to an attempt to obstruct justice.
[references omitted, para. 68]

Since the accused’s overall course of conduct could
arguably amount to an obstruction of justice the
directed verdict was in error and a trial was
required. As for the extortion charge related to
inducing an end to proceedings, the purpose of the
meeting was to have the charges dropped or the
informer’s name might become public and, as a
result, the informer might be harmed by third parties
(members of Qureshi’s group). Proof of an extortion
does not require that the threat be overt and clumsy;
subtle threats and menaces are enough. The indirect
threat in this case was more than sufficient to
constitute a threat or menace in law. The accused
knew that naming the informer would endanger
their safety; any attempt at threatening to reveal it if
he did not get his way could amount to extortion.
Plus, there was nothing in the evidence to suggest a
“reasonable justification or excuse” for what the
accused did. Thus, the trial judge’s reasons for
acquitting the accused were in error and a new trial
was ordered on this count as well. A new trial was
also ordered on the extortion to obtain the cell
phone numbers. To prove extortion, the Crown did
not have to prove that the threats were actually
successful or actually induced the recipient to
provide the telephone numbers; it only required an

PAGE 15

Volume 10 Issue 5 - September/October 2010
“attempt” to accomplish the desired end. Asking for
the telephone records was not the threat; it was that
the informer’s information would be released. The
Crown’s appeal was allowed and a new trial was
ordered.

A Second Opinion
Justice Berger, in dissent, would have dismissed the
appeal. In his view, informer privilege protects the
informant’s identity from being revealed or
information that would tend to disclose their
identity, whether in public or in court. This protects
the informer from retribution and encourages
cooperation with the criminal justice system. But it
does not preclude a legitimate investigation to
ascertain the identity of an informer, perhaps to
determine whether the alleged informer is an agent
of the state, a material witness, or a fictional source
fabricated for illegal purposes. Just because a court,
Crown, or the police have a duty not to furnish
information that may disclose the identity of the
informer, no such duty is imposed upon an accused
or his legal representative. Justice Berger also
rejected the theory that an attempt to ascertain an
informer’s identity necessarily equates with an intent
to reveal the identity. He concluded the trial judge
did not err in concluding that identifying a police
informant did not in itself constitute an obstruction
of justice and the Crown failed to establish beyond a
reasonable doubt that the accused’s purpose was to
interfere with criminal proceedings. He also agreed
with the acquittals on the extortion charges.

PROOF OF ‘EXPLOSIVE
SUBSTANCE’ DOES NOT
REQUIRE EXPLOSION
R. v. K.D.S.A., 2010 NBCA 24
The accused, a grade nine student,
met with his guidance counselor in a
school office. He showed the
guidance counselor a number of
instructional YouTube videos on the
subject of constructing a sparkler bomb. During a
subsequent meeting he showed the guidance
counselor a device he had constructed. The device
was turned over to police. It was made of a glass
spice bottle covered in gun tape with a “single
sparkler as a fuse protruding from the top”. It was
removed and disarmed at a remote location by a
member of the Explosive Disposal Unit. Samples of
debris from the disrupted device were forwarded for
chemical analysis to a forensic laboratory. The
samples were analyzed and an expert in the
examination, analysis and identification of
explosives found they contained nitrocellulose,
polyvinylchloride, copper, iron, barium, ammonium,
sodium, potassium, chloride, calcium, nitrate,
sulfate, and aluminum ions. In the expert’s opinion
some of the chemicals commonly appeared in
pyrotechnic compositions and if confined could
explode. Another expert, qualified in the field of
identification and construction of improvised
explosive devices, built two reproductions of the
device and conducted trials to determine if the
reproductions would explode. Twice the devices did
not ignite, while on a third modified trial a very large
fire, but no explosion, occurred.

1;%<=>*1?=0@=A

!"#$!!%&'("$)*+#,
LEGALLY SPEAKING:

Complete case available at www.albertacourts.ab.ca

!
At his trial in New Brunswick Provincial Court the
accused was found not guilty of possessing an
2
explosive substance. Although the device was
7
described as an “improvised explosive device”, the
23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+
“Apart
from treason in wartime,
trial judge held that the Crown needed to prove that
4
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+
killing
police officers is probably
the device was in fact an improvised explosive
9
/$'8$+
#$-+ )"#$%&'('*6+
8%"41+
device.
In his$).-+
view, there must be an explosion.
the%9+most
serious
crime in 5"16-+
Since the experts could@0,"$:9#56+3'$+5$A05#4$3'$0$,
not get their replicated
6&)*#-1+#$-+)"#$%&'()#'%*<+
Canada.”
- Alberta Court of
device to explode the trial judge was not satisfied
(##$80/#$BB$=3)$6"#$0'5>#)5
Appeal Justice Cote in R. v. Hennessey, 2010 ALCA 274
that the device was an improvised
explosive device.

!"#$%&'()#'%*+,-.'-/+0#)*1)&1
Murder Of A Police Officer

3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1>+)*1+
PAGE-.'1-*8-+
16
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%9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/<+ 3$-+
at para. 16.

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Volume 10 Issue 5 - September/October 2010
The Crown then appealed the accused’s acquittal,
arguing that the trial judge erred in law. In its view,
the trial judge adopted and applied the wrong
definition of the term “explosive substance” when he
found there must be an explosion. The New
Brunswick Court of Appeal agreed.
Section 82(1) of the Criminal Code creates an
indictable offence, punishable by a term of
imprisonment up to five years, for a person to make
or have in their possession or under their care or
control any explosive substance, subject to lawful
excuse. Section 2 defines an “explosive substance”
as including (a) anything intended to be used to
make an explosive substance, (b) anything, or any
part thereof, used or intended to be used, or adapted
to cause, or to aid in causing an explosion in or with
an explosive substance, and (c) an incendiary
grenade, fire bomb, molotov cocktail or other similar
incendiary substance or device and a delaying
mechanism or other thing intended for use in
connection with such a substance or device.
“[Section] 2 does include ‘anything or any part
thereof, used or intended to be used, or adapted to
cause, or to aid in causing an explosion in or with
an explosive substance’” said Justice Quigg.
“Furthermore, ... although the replicated devices did
not explode, they were capable of starting a fire and
thus, were incendiary devices under s. 2.” The
device did fit into the s. 2 definition of explosive
substance and thus s. 82(1). The Court of Appeal
found “[n]owhere in the s. 2 definition does the
Criminal Code require there to be an explosion.
Whether or not the device functions properly should
be of no consequence as to whether it meets the
legal definition of ‘explosive substance’.” Since the
trial judge based his decision on the fact that the
replicated devices failed to explode he would not
necessarily have reached the same conclusion that
the device was not an “explosive substance” as
defined by the Criminal Code. The Crown’s appeal
was allowed and a new trial was ordered.
Complete case available at www.canlii.org

www.10-8.ca

SEARCH WARRANT INVALID,
BUT EVIDENCE ADMITTED
R. v. Wong, 2010 BCCA 160
After receiving a tip from an unknown
informant, police investigated and
conducted surveillance, resulting in
the accused’s home becoming the
target of a search warrant. The affiant
believed a methamphetamine lab was at the
residential premises occupied by the accused.
Because there were previous raids at two other
houses preceding this search warrant, the police felt
there was some urgency and sought a telewarrant.
However, the ITO contained a significant error; it
claimed that the accused had been arrested at a
residence where a meth lab had been found
before. This was not true. The officer later explained
at trial that he must have mixed up his papers at the
time he was applying for a warrant to search a
different house. As well, the ITO also contained
another deficiency relating to a vehicle. After the
telewarrant was issued the police searched the
premises and found the accused inside. Documents
in the house suggested the accused had been
residing there for some time, and finished and
unfinished methamphetamine was found, as were
scales and a book detailing how to manufacture
methamphetamine. The accused was charged with
producing and possessing methamphetamine for the
purpose of trafficking.
At trial in British Columbia Provincial Court the
judge concluded the residence contained “a passive
methamphetamine lab”. However, when the judge
excised the untrue statements from the ITO there
were insufficient grounds remaining upon which a
proper basis remained for the issuance of the search
warrant. The search of the residence therefore
became warrantless. This was a s. 8 Charter
violation, but the judge admitted the evidence under
s. 24(2). The evidence was non-conscriptive real
evidence which would not render the trial
unfair. The breach did not arise from bad faith, but
was inadvertent or careless. He found the erroneous
statement about the accused being found at the
methamphetamine lab was an honest mistake as
opposed to a deliberate disregard for the accused’s

PAGE 17

Volume 10 Issue 5 - September/October 2010
Charter rights. The exclusion of the real evidence
would bring the administration of justice into
disrepute. The judge acquitted the accused on the
production charge (since the meth lab was not
active) but found him guilty of possessing
methamphetamine for the purpose of trafficking.
The accused appealed to the British Columbia Court
of Appeal, challenging the trial judge’s ruling in
admitting the evidence. However, even using the
modified framework for the s. 24(2) analysis, the
Court of Appeal found the evidence still admissible.
1. the seriousness of the Charter-infringing state
conduct (admission may send the message the
justice system condones serious state
misconduct). The judge concluded there was no
bad faith, improper motive, or malice; police
acted in good faith and the breach arose from
inadvertence or carelessness. The police
proceeded “with a sense of urgency” because
there may have been reason for the occupants
of the house to destroy evidence. Although this
did not justify the warrantless search, it was
relevant in considering the conduct of the
police. In addition, the search was not random
or based merely on a good guess.
2. the impact of the breach on the Charterprotected interests of the accused (admission
may send the message that individual rights
count for little). The trial judge found the Charter
breach was more than technical. It was a search
of a dwelling; a serious invasion of privacy.
3. society’s interest in the adjudication of the
case on its merits. The trial judge considered
that “the production of methamphetamine and
possession of it for the purpose of trafficking, are
very serious offences” and the presence of a
methamphetamine laboratory in a residential
neighbourhood “poses an extreme
hazard”. Methamphetamine production is a
community scourge and the exclusion of the
evidence would end the prosecution.
The judge then balanced the integrity of the justice
system, which should not sanction warrantless
searches, particularly those involving the search of a

private home, against “the interests of society in an
investigatory process which has been used to ferret
out serious crime in a residential neighbourhood”.
The trial judge considered all of the relevant
circumstances in determining whether the evidence
should be excluded or admitted pursuant to s. 24(2)
of the Charter. The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

STAY RESULTS FROM
‘HORRENDOUS’ POLICE
BRUTALITY
R. v. Tran, 2010 ONCA 471
Following several violent residential
robberies, the accused Tran, together
with several others, was charged
with a number of offences. In each
home invasion the privacy and
security of the dwellings were shattered, victims
were violated, both physically and psychologically,
and property was taken. On his lawyer’s advice Tran
turned himself in to police. He received a severe
beating at the hands of two police officers resulting
in a broken jaw in two places and permanent injury;
he now bites himself when he eats, has a sore jaw
and loose teeth, and suffers from migraines. The
police officers attempted to cover up their
behaviour. Despite this, the Crown permitted the
officers to remain in court to assist with the
prosecution until the trial judge ordered otherwise.
At trial in the Ontario Superior Court of Justice the
accused testified that he was shoved and punched
and put him in an interview room that was not
equipped with a video camera. Police demanded a
statement. He continued to invoke his right to
silence and was punched in the ribs and the jaw; his
mouth bled profusely. He still would not talk and
officers tried to conceal their misconduct by
cleaning up the blood in the interview room. Tran
said they also put him in front of a video camera and
tried to get him to say that he had hit his chin on the
table; but they were unsuccessful. The officers tried
to explain the injuries to other officers by saying that
Tran was wiggling his tooth and trying to “play it
up”, and that he had been violent and uncooperative

PAGE 18

Volume 10 Issue 5 - September/October 2010
with police. The officers, on the other hand, denied
the assault; claiming they left Tran alone in the
interview room to later find him on the floor, still
handcuffed, with blood coming from his lower lip.
He said he fell and the officers put him on videotape
to tell the truth about the source of his injuries. A
medical expert testified that the injuries Tran suffered
were consistent with a blow to the jaw; not with a
fall. The trial judge disbelieved the officers and
found the accused had been brutally assaulted and
his Charter rights under ss. 7 and 12 had been
breached. But the judge refused to stay the
proceedings against Tran as a result of the police
brutality; the breach did not affect the evidence
against him, the charges were serious, and a stay
was not appropriate. The accused was convicted of
conspiracy to commit robbery. The judge, however,
found that the appropriate and just remedy was to
reduce the sentence he would otherwise receive by
half. After this reduction Tran was sentenced to 14
months imprisonment plus three years probation.
Tran appealed to the Ontario Court of Appeal,
arguing, in part, that the trial judge erred in refusing
his application to stay the prosecution against him as
a result of police actions. In his view, because of the
circumstances surrounding the breach and its
seriousness the continued prosecution offended the
fundamental principles of justice that underlie the
community’s sense of fair play and decency and
therefore the only appropriate response was a stay of
proceedings.
The Court of Appeal agreed. “Section 7 provides
citizens with a right to be secure against arbitrary
force, especially physical violence, by state actors,”
said Justice Epstein for the unanimous Court of
Appeal. ”Section 12 deals with the degree to which
the state may treat or punish an individual.”
Sections 24(1) and (2) provide jurisdiction to remedy
a Charter breach. In this case, the trial judge had
two options – (1) reduce the sentence (either by
application of the remedial provision of the Charter
or through the sentencing provisions of the Criminal
Code) or (2) stay the proceedings. Justice Epstein
described the inherent jurisdiction of a court to stay
proceedings as a measure of control over the
judicial process as follows:

The common law abuse of process doctrine is
designed to protect the fundamental principles
of justice that underlie the community’s sense of
fair play and decency. [T]he judiciary should
resort to a stay when necessary to communicate
that it will not condone state conduct that
transcends what our society perceives as
acceptable. The objective of a stay as a remedy
is to maintain public confidence in both the
legal and the judicial process. [references
omitted, para. 83]

The Court found this was one of those “clearest of
cases” where a stay should have been granted and
the prosecution halted. The nature and degree of the
state misconduct demanded a remedy that went
beyond a sentence adjustment. “This case involved
horrendous police misconduct that breached Tran’s
ss. 7 and 12 Charter rights, jeopardized the
perception of trial fairness and brought the integrity
of law enforcement into disrepute,” said the Court.
Plus, there was no evidence of any effective
response to the police brutality. SIU had investigated
the matter, but concluded the file, finding there were
no reasonable grounds to believe that the officer had
committed any criminal offence and, despite the
trial judge’s findings of serious police brutality, no
further action was taken against the officers. So even
though the evidence against Tran was unaffected by
the brutality and the charges were serious, a stay
could be granted because the abuse was more than
sufficiently serious to warrant a stay. “It is essential
for the court to distance itself from this kind of state
misconduct – an unwarranted, grave assault causing
bodily harm, delayed medical attention, a cover up
that included perjury, a prosecutorial response that
affected the perception of trial fairness and no
effective response,” said Justice Epstein. “Not to do
so would be to leave the impression that it tacitly
approves of it. The granting of a stay of proceedings
affirms the fundamental values of our society and
ensures that the rights under the Charter are not, in
substance, meaningless.” Tran’s appeal was allowed
and a stay of proceedings was entered.
Complete case available at www.ontariocourts.on.ca

www.10-8.ca

PAGE 19

Volume 10 Issue 5 - September/October 2010

POLICE MUST RESPECT
AUTHORIZATION: LISTENING TO
INTERCEPTED CALLS
UNREASONABLE
R. v. Martin, 2010 NBCA 41
As part of an investigation into the
unlawful sale of tobacco, police
obtained authorizations to intercept
private communications of a known
party. The authorization contained a
basket clause, which also allowed the police to
intercept communications of other individuals. But
there was also a clause to guard against the
interception of privileged communications between
a solicitor and their client. This clause prohibited the
interception of communications at the office or
residence of a solicitor, and also required the police
to stop listening to a communication when they
reasonably believed that a solicitor was a party to a
communication. If a call was intercepted while on
automatic monitoring, the monitor or police officer/
investigator who subsequently reviewed the call was
to stop listening to it as soon as they reasonably
believed that a solicitor was a party to it. Any
communication with the solicitor that was recorded
was to be sealed and only accessed upon
authorization of a court.
The police subsequently determined they had
sufficient grounds to arrest the known party. They
set up surveillance and arrested him. He was
transported to a police station where he exercised
his s. 10(b) Charter right to consult with a lawyer.
Police continued to monitor the telephone. The
monitor noted the line was active and started
listening to the call. A man was speaking to the
known party’s wife and the monitor heard him tell
the wife that her husband was detained and to call
another person to come to the home and remove
some incriminating evidence. Nothing in the
conversation led the monitor to believe a solicitor
was making that call. The monitor called the lead
investigator and they both listened to a recording of
the intercepted call. At the beginning of the call the
male caller identified himself as a lawyer. The
monitor then believed that she was required to

comply with the authorization and cease listening to
the recording. But the investigator instructed her to
play back the entire conversation. As a result police
attended the known party’s residence, arrested his
wife and the accused (a lawyer), and searched the
house, finding tobacco residue on the toilet seat and
small quantities of tobacco in the bathroom. The
accused was charged under s. 139(2) of the Criminal
Code with attempting to obstruct justice by
counselling someone to dispose of evidence.
In the New Brunswick Court of Queen’s Bench the
accused applied to have the evidence of the
intercepted conversation between the known party’s
wife and himself excluded because the police
breached his s. 8 Charter rights. He submitted, in
part, that the surreptitious electronic interception of
his conversation constituted an unreasonable search
or seizure because police did not comply with the
authorization’s conditions that prevented them from
listening to a conversation involving a lawyer. As a
r e s u l t h e c o n t e n d e d t h a t t h e i n t e rce p t ed
communication should be excluded under s. 24(2)
of the Charter because its admission into evidence
would bring the administration of justice into
disrepute. The trial judge agreed, finding that both
the monitor and the lead investigator should have
known from the outset that the conversation
involved a lawyer. He reasoned that only a lawyer
could have made the call to the known party’s wife
and police should have realized this because they
knew the known party was in custody and they
should have expected he would exercise his right to
counsel. The intercepted communication was
excluded from evidence at trial. Although the
evidence would not affect trial fairness, the lead
investigator usurped the judicial function and
committed a “most serious violation”. The accused
was acquitted.
The Crown appealed to the New Brunswick Court of
Appeal arguing, among other grounds, that the trial
judge erred in finding a s. 8 Charter violation and in
deciding to exclude the evidence under s. 24(2).
Justice Richard, writing the opinion of the Court of
Appeal, agreed that the actions of the monitor and
the investigator failed to respect the provisions of the
authorization. As soon as the police realized a

PAGE 20

Volume 10 Issue 5 - September/October 2010
solicitor was involved in the communication they
were required to stop listening. However, the Court
of Appeal did not agree that the police should have
realized it was a solicitor on the phone from the
outset of the call. With the first part of the
intercepted conversation not listened to, it was mere
conjecture that the person calling was a solicitor and
there was nothing in the remaining conversation that
would lead a reasonable person to believe a solicitor
was making that call. When the monitor called the
lead investigator and advised him of what she had
heard, the lead investigator had no reason to believe
a solicitor was involved. Rather, the monitor and the
investigator only became aware a solicitor was
involved when the monitor started to play the entire
conversation for the investigator. At this point,
however, Justice Richard held that both the monitor
and the investigator failed to comply with the
provisions of the authorization requiring them to
immediately cease listening. The communication
could still be recorded, but it had to be sealed and
could not be accessed without authorization from a
court. “The Authorization is an order of the Court
and it did not leave room for any misinterpretation:
as soon as a monitor or police officer/investigator
reasonably believes that a solicitor is a party to a
communication, the monitor or police officer/
investigator must cease listening,” said Justice
Richard. “This clause of the Authorization applied to
both [the monitor] and to [the investigator] and each
was individually expected to respect it.”

there was an unlawful search that was neither
judicially or otherwise authorized by law. The
accused’s s. 8 Charter rights were breached.

Exclusion of Evidence
Seriousness of the Charter-infringing State Conduct
Although what the police did would generally be
considered a serious violation, there were
extenuating circumstances. The investigator already
knew the gist of the communication as related by
the monitor before listening to it. Plus there was a
sense of urgency. The police needed to prevent the
disappearance of evidence; there was information
that evidence could be removed from the home
before a search warrant was executed. Further, there
was nothing to suggest a pattern of police
overlooking the terms of authorizations. So the
police conduct was serious, but not egregious.
Impact on the Accused’s Charter-Protected Interests
Although the privacy interest in one’s telephone calls
is high, it is not absolute and lawful interceptions
can be authorized. Here, the conversation was
lawfully intercepted and lawfully monitored until it
was learned a solicitor was involved on play back.
Justice Richard stated:

The interception of communications constituted a
search and seizure; not complying with the terms of
the authorization risked it becoming unreasonable.
Here, the interception and recording of the call was
not unreasonable because the interception and
recording were authorized. The monitor was only
required to stop listening if she reasonably believed
a lawyer was involved. But by the time she realized
that it was, the communication had already been
properly intercepted and recorded. However, the
Court of Appeal found the continued playback after
it was learned a solicitor was involved constituted a
separate search, which was not authorized and was
unreasonable. Once it was learned a lawyer was
involved there was no authority for police to further
listen to any part of the communication. By doing so

PAGE 21

One might ask what privacy interest there is in a
conversation that has already been intercepted
and recorded by the police. In my view, there
remains a privacy interest, but it may not be very
high. The interest is that the interception will be
processed according to the terms of the
Authorization. In this case, it meant being sealed
and submitted to a Court before it could be
released to the investigators. The privacy interest
is not very high because the conversation has
already been heard and if, as in this case, it is
not protected by privilege, it will likely be
unsealed upon the proper application to the
Court. I acknowledge that the facts of this case
are rather unique. If, for example, [the monitor]
had reasonably believed from the outset a
lawyer was involved in the communication and
had nonetheless listened to the conversation and
related it to [the investigator], the situation
would be quite different.

Volume 10 Issue 5 - September/October 2010
Society’s Interest in an Adjudication on the Merits
The evidence was highly relevant and reliable. “The
intercepted communication speaks for itself,” said
the Court. “Its importance to the prosecution is also
evident. Without the interception, the prosecution’s
case collapses” and society’s interest in an
adjudication on its merits would be compromised.
In balancing the above three factors, the Court of
Appeal concluded that the admission of the
evidence would not bring the administration of
justice into disrepute. The Crown’s appeal was
allowed, the accused’s acquittal was set aside, and a
new trial was ordered.
Complete case available at www.canlii.org

INMATE HAS PRIVACY INTEREST
IN RECORDED CALLS
R. v. Siniscalchi, 2010 BCCA 354
Following a police investigation of
several robberies, the accused was
arrested and held in a Pre-Trial
centre. At the facility there was a
telephone system available for
inmates to use and calls were automatically
recorded. The accused made 21 phone calls on the
Inmate Call Control System (ICCS) over a nine day
period; seven calls were with his wife and the others
to family members (eg. mother, father, cousin, etc.).
Prison authorities did not listen to these calls as part
of their duties. Acting on a tip from a confidential
informant that the accused had confessed
involvement in several robberies during one of his
telephone calls, police confirmed with an official at
the Pre-Trial Centre that he had made a number of
phone calls while in custody, but the official refused
to provide further information unless a production
order was obtained. The police obtained a
production order for copies of the recordings.
Although the conversations were typically of a
personal nature and did not contain any confession
of guilt, they did include numerous discussions of
the robberies.
At trial on two counts of robbery in British Columbia
Provincial Court transcripts of the recorded calls

were entered into evidence. The trial judge found
the accused had no reasonable expectation of
privacy in the telephone calls and therefore there
was no infringement of s. 8 of the Charter when the
recordings were obtained by the police. The Crown
said that the transcripts could be used to infer guilt
because the statements were consistent with the
accused having robbed the victims and there was no
denial of his involvement in contexts where a denial
would be expected. The trial judge did not, however,
use the transcripts for the purposes suggested by
Crown. Instead, he used the transcripts only in
assessing the accused’s credibility and in rejecting
his alibi evidence. The accused was convicted.
The accused then appealed to the British Columbia
Court of Appeal submitting, among other grounds,
that the police breached his s. 8 Charter rights when
they obtained the recordings and they should have
been excluded under s. 24(2) of the Charter.
Before rendering its decision, Justice Huddart,
speaking for the Court of Appeal, first summarized
the principles surrounding s. 8 of the Charter:
1. A claim for relief under s. 24(2) can only be made
by the person whose Charter rights have been
infringed.
2. Like all Charter rights, s. 8 is a personal right. It
protects people and not places.
3. The right to challenge the legality of a search
depends upon the accused establishing that his
personal rights to privacy have been violated.
4. As a general rule, two distinct inquiries must be
made in relation to s. 8. First, has the accused a
reasonable expectation of privacy. Second, if he
has such an expectation, was the search by the
police conducted reasonably.
5. A reasonable expectation of privacy is to be
determined on the basis of the totality of the
circumstances.
6. The factors to be considered in assessing the
totality of the circumstances may include, but are
not restricted to, the following:
(i) presence at the time of the search;

PAGE 22

Volume 10 Issue 5 - September/October 2010
(ii)

possession or control of the property or place
searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the
right to admit or exclude others from the
place;
(vi) the existence of a subjective expectation of
privacy; and
(vii) the objective reasonableness of the
expectation.

monitored and every telephone location has a notice
posted immediately adjacent to it stating, “All
telecommunications, other than those to privileged
parties, are recorded and may be listened to.”
Further, when an inmate makes or receives a call
(other than a privileged call), they hear a warning
that “this call is from a correctional institution and is
recorded and subject to monitoring”:

7. If an accused person establishes a reasonable
expectation of privacy, the inquiry must proceed
to the second stage to determine whether the
search was conducted in a reasonable manner.
[references omitted, para. 65]

The comprehensive polices that are in place
represent a considered compromise between
inmate privacy and prison security. Inmates
cannot be under any illusion that their
conversations are absolutely private. They are
warned on coming into the institution, on
attending to make a phone call, and on the call
being connected, that their calls are recorded,
and may be listened to in limited circumstances.
They are also told (and s. 15(2) of the Regulation
establishes) that the recordings will not be
accessed by persons outside the correctional
service without lawful authority.

In this case Justice Huddart found that the accused
did have a reasonable expectation of privacy.
Although the accused was not present when the
recordings were obtained by the police, did not
possess or own the physical media on which the
In the circumstances, it is my view that inmates
conversations were recorded or the place where
have a diminished (but not extinguished)
they were kept, and did not have a historical right to
expectation of privacy in their telephone
use or the ability to regulate access to them, he had
conversations. They must expect that their calls
a subjective expectation of privacy in the telephone
will be recorded, and are on notice that they
calls themselves which was objectively reasonable.
may be listened to by authorized officials in
Even though the privacy expectations
limited circumstances. They
that a person has while in prison are
are also entitled to expect
“[A]n inmate has some
that the contents of their
substantially diminished, a prisoner
conversations
will be kept
reasonable
expectation
of
does not lose all their s. 8 rights for the
c
o
n
f
i
d
e
n
t
i
a
l
by those
duration of their confinement. “While
privacy in telephone calls,
authorized
officials
except in
expectations of privacy are severely
very
limited
circumstances
–
even
though
they
are
subject
diminished, they are not eliminated,”
situations detailed in the
said Justice Huddart.
to being monitored.”
regulations, including
situations where the
The ICCS was a system designed to give prisoners
conversations evidence a threat to persons or to
the ability to make telephone calls while providing a
the security of the prison. [paras. 84-85]
measure of security for the correctional facility.
Under British Columbia’s Correction Act an inmate’s
In holding that the accused had a privacy interest in
telephone calls can be recorded and monitored,
the contents of the recordings sufficient to engage s.
within the limits of the legislation. The legislation is
8 of the Charter, the Court of Appeal stated:
made available to inmates and a booklet explaining
that telephone conversations may be recorded was
In my view, ... routine, passive recording of
also provided. As well, the “B.C. Corrections Branch
inmate telephone calls is not a violation of s. 8
of the Charter. I do not agree, however, ... that
Adult Custody Policy” requires that all inmates, on
once a call is recorded, an inmate has no
admission, receive and sign a written notice advising
privacy interest in its content. Rather, ... an
that telecommunications are recorded and may be
inmate has some reasonable expectation of

PAGE 23

Volume 10 Issue 5 - September/October 2010
privacy in telephone calls, even though they are
subject to being monitored. The expectation is
not absolute. It is tempered by the realization
that the calls will be intercepted to the extent
authorized by the regulations. It is an
expectation that calls will only be listened to for
proper purposes by prison officials, and that
those officials will not disseminate the
recordings further in the absence of a judicial
authorization or exceptional circumstances (e.g.
where the calls disclose concerns for the security
or operation of the institution).

... In my view, the affidavit was deficient. It
simply set out the fact that a confidential tip had
been received. The tip was not detailed, and the
affidavit provided no indication of the source of
the informant’s information. There was no
evidence tending to confirm the veracity of the
tip. Further, the officer who swore the affidavit
testified that no investigation of the informant’s
background had, to his knowledge, been
conducted and that he did not know whether the
informant had provided reliable information in
the past. In short, neither the affidavit nor the
surrounding circumstances provide any basis for
a conclusion that the confidential informant was
reliable.

In summary, [the accused] could not expect his
telephone conversations to be immune from
interception by prison authorities. He could also
hold no expectation that those authorities would
refrain from involving the police if his
conversations disclosed threats to security. He
was entitled, however, to expect that prison
authorities would listen to the conversations
only where the statutory pre-conditions were
met, and to expect that routine conversations
that had no apparent connection with crime or
prison security would be kept confidential by
any prison official who heard them. [paras.
98-99]

The affidavit, in essence, left the judicial justice
of the peace with no information other than that
someone of unknown reliability had reported to
a police officer that he had information (the
nature of which was unknown) which led him to
believe that [the accused] confessed to a crime
in the course of a telephone conversation. That
could not satisfy the requirement of
s. 487.012(3)(b) that there be reasonable and
probable grounds to believe that the recordings
of the telephone conversations contained
evidence respecting the commission of the
robberies. The affidavit evidence provided to
the J.J.P. was not sufficient for the granting of a
production order, and the order ought not to
have been granted. [paras. 108-109]

Thus, recording the telephone conversations was
proper but it was inappropriate for prison authorities
to provide the recordings to the police absent
judicial authorization.

Production Order
Here, the police obtained a production order under
s. 487.012 of the Criminal Code for copies of the
recordings. If the production order was valid then s.
8 of the Charter would not have been breached. If it
was not valid then the evidence was obtained in
violation of s.8. Before issuing a production order,
the justice or judge must be satisfied, among other
things, that there are reasonable grounds to believe
the documents or data will afford evidence
respecting the commission of the offence. In the
affidavit supporting the production order there was
only one paragraph addressing this element. It stated
that police had information from a confidential
informant that accused had called his brother after
his arrest and had confessed to him involvement in
several robberies. But this was not enough:

Since the production order was not validly issued
the accused’s s. 8 Charter rights were breached and
the Court of Appeal excluded the evidence under s.
24(2). The breach was relatively serious and the
effect of exclusion on the truth-seeking function of
the trial would have been minimal. But the
inadmissible evidence played no role whatsoever in
the trial judge’s decision to convict the accused and
had no effect on the outcome of the trial; thus the
error in admitting the evidence was harmless. The
accused’s conviction appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

www.10-8.ca

PAGE 24

Volume 10 Issue 5 - September/October 2010

CIRCUMSTANTIAL EVIDENCE
SUPPORTS CONVICTION

•
•

R. v. Au-Yeung, 2010 BCCA 367
A townhouse suspected of
containing a marihuana grow
operation came to the attention of
police due to traffic between it and
another suspected grow-op in the
area. After conducting surveillance of the townhouse
and detecting the odour of marihuana, police
decided to obtain a search warrant. While the
Information to Obtain was being prepared the
accused drove up to the unit; the garage door
opened and the accused backed a car in and
remained inside for 37 minutes. The garage door
then opened and he drove the vehicle, which he did
not own, out. He was stopped by police and was
arrested immediately; he asked for his keys and
wallet. On opening the trunk of the car there was a
strong odour of marihuana. A suitcase containing
five pounds of marihuana and $10,000 in cash was
found. Police also found an electronic garage door
opener and keys, as well as the accused’s wallet,
which had a business card from Vancity Garden
Supplies and two swimming passes, one in his
name. A search warrant was obtained for the
townhouse and the garage door opener from the car
was used to open the garage and the keys were used
to open the door. Inside the home police found a
large marihuana grow operation consisting of several
hundred marihuana plants as well as dried
marihuana packaged in Ziploc bags identical to
those found in the trunk of the car. They also found a
receipt from Vancity Garden Supplies. There was
evidence only of a female occupant.
At trial in British Columbia Supreme Court the
accused’s explanation for his presence at the house
and the suitcase full of cash and marihuana in the
car was rejected as unbelievable. The accused’s joint
ownership and control of the grow-op and
knowledge and control of the marihuana in the car
was based on circumstantial evidence, including:
•
•

his relationship with the townhouse and the car
owner;
the availability of the car to him;

•
•
•

police surveillance linking him to the
townhouse unit;
the garage door opener and house keys found
in his possession;
his direct opening of and entrance into the
garage;
asking for the keys to the house upon his arrest;
and
the marihuana found in the car was of the same
weight and packaging as marihuana found in
the house.

He was convicted of producing a controlled
substance and possession for the purpose of
trafficking.
The accused then appealed to the British Columbia
Court of Appeal arguing, among other grounds, that
the circumstantial evidence was not capable of
supporting the convictions. But this submission was
rejected by the Court of Appeal. “In this case, the
circumstantial evidence was overwhelming,” said
Justice Bennett speaking for the Court. “It all pointed
towards the [accused] having knowledge and
control of the marihuana in the trunk of the car. It
also pointed to his knowledge of and involvement in
the grow-op.” There was no reason to disturb the
trial judge’s findings and the accused’s appeal
against the guilty verdicts was dismissed.
Complete case available at www.courts.gov.bc.ca

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Volume 10 Issue 5 - September/October 2010

INVOLVEMENT WITH GROW OP
DOES NOT ALWAYS ESTABLISH
PRIVACY INTEREST
R. v. Stein, 2010 BCCA 173
A police officer flying a helicopter
discovered an outdoor marihuana
plantation in a rural area. The next
day he returned with other officers.
He circled low over the property and
two vehicles were seen there; one belonged to the
accused. It drove from plots of marihuana and
stopped at a residence on the property. The truck
driven by the accused was stopped by police after it
hastily left the property. The accused was arrested
and a strong smell of marihuana was noted on his
clothing. The helicopter landed on the property and
the police looked around. The outdoor marihuana
grow operation was capable of producing an
estimated $3M of marihuana at street value. Police
subsequently obtained a warrant and also searched
the accused’s truck. In the house they found a
considerable amount of dried marihuana and an
overnight bag with his personal effects. In the truck,
leased in the accused’s name, police found a
checkbook in his name, as well as a schematic
diagram of the grow areas, a how to grow
marihuana book entitled “Marihuana Flower
Forcing”, and a bag containing plastic baggies,
clippers, a scale and a Tupperware container with
marihuana leaves and bud. There was also a strong
smell of marihuana about the truck. The farm
property itself was owned by
someone else.
At trial in British
Columbia Supreme
Court the accused sought
standing to challenge the
validity of the search warrant issued for the property.
But the trial judge refused the accused’s request. He
found the accused had no standing to challenge the
search warrant related to the property and therefore
no voir dire was held. The Crown’s argument that the
accused had possession and control of the drugs
found on the property was not enough for him to
establish a reasonable expectation of privacy. He

was only found there; he did not own, occupy,
control, historically use, regulate access, nor hold an
objectively reasonable expectation of privacy over
the land. The trial judge nonetheless held there was
sufficient circumstantial evidence to find the
accused was actively involved in the grow operation
such that he was guilty of producing marihuana and
possessing it for the purpose of trafficking.
The accused challenged his convictions to the
British Columbia Court of Appeal, submitting that he
should have been granted standing to challenge the
warrant and search of the property. He suggested
that since the Crown asserted his presence and
association with the grow operation was sufficient
for a conviction, then the trial judge erred in not
granting him standing to challenge the search of the
farm property. Justice Hall, however, in delivering
the decision for the Court of Appeal, upheld the trial
judge’s ruling. Even though the accused had been
about the property and was involved in the
marihuana plantation, the Crown contended it did
not need to assert the accused had a propriety or
possessory interest in the property to get a
conviction. “It was [the accused’s] involvement with
the grow operation that was significant, not his
involvement with the property,” said Justice Hall. A
person who seeks standing to challenge a search or
the issuance of a search warrant bears the onus of
demonstrating a sound evidentiary foundation that
they have a privacy interest. In some situations an
accused will establish this, such as when the Crown
argues that an accused should be found in
possession of items in or about a property because
they have an ownership interest in or control of the
property. In other cases, as was here, being about
the property will not be sufficient to establish a
privacy interest but can nevertheless found a
conviction. The Court of Appeal concluded that the
trial judge did not err when he declined to enter into
a voir dire to determine whether police infringed the
accused’s privacy interest.
Complete case available at www.courts.gov.bc.ca

www.10-8.ca

PAGE 26

Volume 10 Issue 5 - September/October 2010

HOME FORFEITURE NOT
DISPROPORTIONATE DESPITE
ABSENCE OF CRIMINAL RECORD

The accused argued that the sentencing judge erred
in forfeiting the entire property and should have
considered partial forfeiture only. But the Court of
Appeal disagreed, holding that the order of complete
forfeiture was not disproportionate, taking into
R. v. Wu, 2010 BCCA 366
account all of the circumstances, including his
financial circumstances. “The financial success of
Responding to a person in distress
the grow-op in question is a relevant consideration,
call, the police attended a residence
as is the offender’s equity in the property, but the
to find the accused outside on the
effect of forfeiture on him personally no longer
rear steps. They
appears to be a factor to be
entered the home
“The
purposes
of
the
c o n s i d e r e d wh e n m a k i n g a
and discovered the accused’s
forfeiture provisions ...
forfeiture order,” said Justice
common-law wife, her mother,
Bennett. “The purposes of the
and his three year old son. Not
include taking the profit out
f
o r f e i t u r e p r ov i s i o n s i n t h e
finding anyone in distress, they
of
the
production
and
Controlled Drugs and Substances
did discover a large marihuana
grow operation in the basement of
trafficking of drugs. There is Act include taking the profit out of
the production and trafficking of
the house. The accused, who did
also a punitive aspect to the drugs. There is also a punitive
not live at the home, owned the
effect of a forfeiture order.
aspect to the effect of a forfeiture
property. He had no criminal
order.
There is also a preventive
record nor was he associated with
There is also a preventive
aspect, as the tools of the crime
organized crime. The property was
aspect, as the tools of the
are removed from the criminal.”
valued at $367,000 with a
Here, there was no question that
$152,000 mortgage; leaving the
crime are removed from the
the house was “offence-related
accused with $215,000 in equity.
criminal.”
p r o p e r t y ” ; t h e a c c u se d h a d
The accused was found guilty in
converted
his
basement
from a rental suite to a large
British Columbia Provincial Court of producing
urban grow operation. In deciding whether forfeiture
marihuana and possession of marihuana for the
was disproportionate in the circumstances, the
purpose of trafficking. After the trial his common law
following factors will be taken into account:
wife and their son returned to China while the
accused moved back into the property. He was
• the nature and gravity of the offence, including
sentenced to a nine month conditional sentence and
the character and quantity of the substance
his house was ordered forfeited.
involved, the level of sophistication of the crime
The accused appealed the forfeiture order to the
and the extent of the commercial production or
British Columbia Court of Appeal. Under the
distribution;
Controlled Drugs and Substances Act, if a person is
✦“This was a fairly large grow-op in an urban
convicted of a designated substance offence and the
setting. There were four growing rooms
court is satisfied, on a balance of probabilities, that
engaged, and 398 plants at various stages of
d e ve l o p m e n t , a l o n g w i t h h a r ve s t e d
any property is offence-related and that the offence
marihuana bud. The police expert opined
was committed in relation to that property, the court
that this was “6 out of 10” in terms of
shall order the property forfeited. When the
sophistication. While I am not entirely clear
forfeiture of a dwelling house (real property) is
what the parameters of that scale are, I think
involved, the court must be satisfied that the impact
it is safe to say that it was not the most
of such a forfeiture order would not be
sophisticated grow-op the expert has seen,
disproportionate to the nature and gravity of the
b u t i t wa s c l e a r l y f o r c o m m e rc i a l
offence, the circumstances surrounding the
production. The plants were well tended and
commission of the offence and the criminal record,
the operation was capable of producing
if any, of the person convicted of the offence.

PAGE 27

Volume 10 Issue 5 - September/October 2010
$163,000 every three to four months. In
other words, it was approximately a halfmillion dollar per year operation.” [para. 25]

• the circumstances surrounding the commission
of the offence, including the offender’s role in
the offence, the nature of the property and the
manner in which it was used in the commission
of the offence, risks to the community, whether
the use detrimentally affected legitimate use of
the property, whether the property was fortified
or adapted to accommodate the offence, the
extent of the involvement of the offender in
organized crime;
✦ the trial judge found that the grow-op
belonged to the accused. Although he did
not live at the property, he owned it and
was at the premises when the police
arrived. His common-law wife and child
lived there. The property was in a residential
suburban neighbourhood. It was a two-level
home with a main floor and basement. The
entire basement was converted to be used
as a grow-op. Electricity was not stolen but
the electrical system had been rigged which
was hazardous and posed a fire hazard to
neighbours. Grow-ops are notoriously
dangerous to neighbourhoods as a result of
the violence associated with the drug world,
as well as the risk of fire from poor
electrical installations. The risk of fire or
exposure to violence to the community was
significant in this case. There was evidence
$800 a month in rental income could have
been received had the suite not been
converted to a grow-op. Thus, the legitimate
u s e o f t h e p r o p e r t y wa s s e r i o u s l y
impinged. The main floor was used as a
residence, although the fireplace was
entirely blocked off to facilitate venting the
grow-op through the chimney. After the
arrest, the accused converted the basement
back to a suite and he now resided in the
basement while other relatives occupied the
top floor. His wife returned to China with
their son upon her acquittal.
• whether the offender has a criminal record.
✦ the accused did not have a prior criminal
record nor was there evidence that he was
involved with organized crime.

The accused suggested that he did not steal
electricity nor have illegal guns on the premises
which should be considered mitigating factors. But
this was rejected. “I do not see how partial
obedience of the law mitigates the circumstances of
the offence,” said Justice Bennett. “Those crimes are
often associated with grow-ops, but they are
aggravating factors when present, not mitigating
factors when they are not present.” In dismissing the
accused’s appeal against complete forfeiture, the
Court of Appeal stated:
This was a substantial commercial grow
operation in an urban setting. The profits were
significant and the crop was continual. The
property was altered in order to accommodate
the grow-op. The risk of danger from fire and
drug-related violence to [the accused’s] family
and neighbours was always present. His profit
for six months of cultivation equalled the equity
in his house. [para. 40]

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

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doctrine of wilful blindness imputes knowledge to
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'an accused whose suspicion is aroused to the point
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;
where he or she sees the need for further
#$)#+
#$-+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8
enquiries, but deliberately chooses not to make
%99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+
those enquiries. ... [A] finding of wilful blindness
%9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &involves an affirmative answer to the question:
@"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A
Did the accused shut his eyes because he knew or
/$'8$+
#$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)
strongly suspected that looking would fix him
)"#$%&'()#'%*<+
with knowledge?” - Supreme Court of Canada
Justice Charron in R. v. Briscoe, 2010 SCC 13 at para. 21.
3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#
'%*+

%*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B#
%9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+
PAGE 28
)"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C7+9
#%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )

Volume 10 Issue 5 - September/October 2010

HARD ENTRY OK
RULES SUPREME COURT

At trial in the Alberta Court of Queen’s Bench the
accused admitted possessing the cocaine for the
purposes of trafficking. But he challenged the
R. v. Cornell, 2010 SCC 31
manner in which the search was conducted. The trial
judge upheld the search and found that the police
After receiving information from a
provided a reasonable explanation for conducting a
confidential informant about a
forced entry in all of the circumstances. They wanted
“dial‑a‑dope” cocaine trafficking
to ensure both that the cocaine was not destroyed
operation, police obtained three
and were concerned with their safety, as well as the
search warrants under the Controlled
safety of the public (including possible occupants of
Drugs and Substances Act for two dwelling houses
the house). The police had reasonable grounds to
and a motor vehicle. The operation was believed to
anticipate either the use of violence by the residents
be connected to an organized criminal group known
of the home or the destruction of evidence. They had
as the “Fresh Off the Boat” gang, which was engaged
reasonable grounds to believe that a cocaine
in a violent war with another criminal gang. There
trafficker associated with violent people was
had been a number of deaths
welcome in the home. Plus, the
and shootings. A tactical team
judge found the police had no
“[T]he police must be allowed a
wa s t o b e u s e d a t b o t h
means of knowing before
certain amount of latitude in the
residences and for the vehicle
executing the warrant who, if
stop. The team would secure
anybody, was in the residence
manner in which they decide to
the sites and then turn them
or whether there was anyone
enter premises. They cannot be
over to the investigators who
inside who might destroy the
would conduct the searches.
expected to measure in advance
cocaine, if there was any, upon
The accused was not the target
with nuanced precision the amount learning of the police presence
of the investigation, but it was
at the door. The police had
of force the situation will require.” done what could reasonably be
believed his home was used for
reloading drugs. At the
expected in formulating their
accused’s residence the tactical team conducted an
decision to use a forced entry. As for the entry team
unannounced hard (or dynamic) entry consisting of
not having a copy of the warrant with them, the
nine police officers with weapons drawn. The
judge reasoned each member of the police team
officers were wearing balaclavas and body armour.
executing the warrant did not need to have a copy
Police used a battering ram on the front door and
on their person. The warrant was present at the
entered the house yelling, “Police, search warrant”.
scene and it was reasonable for the tactical team to
The accused’s 29-year-old mentally challenged
first secure the premises and for the lead investigator
brother was the only one in the house and was taken
to wait outside with the warrant until it was safe to
down and handcuffed. He became emotionally
enter.
distressed, but within four minutes was uncuffed and
comforted. The tactical team did not have the
By a 2:1 majority the Alberta Court of Appeal
warrant in hand when they entered the house.
dismissed the accused’s appeal and affirmed the
Instead, the lead investigator who was waiting for
conviction. “Section 8 of the Charter does not
the house to be secured had a copy of the warrant
require the police to put their lives or safety on the
and entered the residence about four minutes after
line if there is even a low risk of weapons being
the tactical team went in. No one asked to see the
present,” said Justice Slatter. The majority concluded
warrant at the time of entry. Police found 99.4 grams
that the search warrant was properly issued and that
of cocaine in the corner of the accused’s basement
the search itself was conducted reasonably. But
bedroom. He was later arrested at his workplace.
Justice O’Brien dissented, concluding that the police
made no separate assessment of the residence to
determine whether the execution of the warrant

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Volume 10 Issue 5 - September/October 2010
would give rise to a real threat of violence. In his
view, the unannounced and violent entry into a
private dwelling by masked police officers, with
weapons drawn, and without the search warrant in
their possession, could not be justified under the
circumstances. The police provided no information,
specific to the residence or its inhabitants, which
could justify the manner of the search. He would
have excluded the evidence under s. 24(2).
The accused then appealed to the Supreme Court of
Canada, again submitting that the manner of entry
by the members of the police tactical team was
unreasonable in the circumstances. In his view, the
use of a forced, unannounced entry with masked
officers was not proper. He suggested, in part, that
the police had inadequate information to support the
decision to use a hard entry, and that they ought to
have taken further investigative steps. As well, they
did not have a copy of the search warrant with them
at the time of entry. Before addressing the accused’s
arguments, Justice Cromwell, for the four member
majority, first summarized the law regarding
unannounced, forced entries.
For a search to be reasonable search under s. 8 of
the Charter it must be:
• authorized by law;
• the authorizing law must itself be reasonable;
and
• the search must be conducted in a reasonable
manner.
The onus is on an accused to prove the search
breached s. 8 of the Charter.

Knock and Announce
In discussing unannounced entry the majority stated:
Except in exigent circumstances, police officers
must make an announcement before forcing
entry into a dwelling house. In the ordinary case,
they should give: “(i) notice of presence by
knocking or ringing the door bell; (ii) notice of
authority, by identifying themselves as law
enforcement officers and (iii) notice of purpose,
by stating a lawful reason for entry. [para. 18]

And further:
Where the police depart from this approach,
there is an onus on them to explain why they
thought it necessary to do so. If challenged, the
Crown must lay an evidentiary framework to
support the conclusion that the police had
reasonable grounds to be concerned about the
possibility of harm to themselves or occupants,
or about the destruction of evidence. The greater
the departure from the principles of announced
entry, the heavier the onus on the police to
justify their approach. The evidence to justify
such behaviour must be apparent in the record
and available to the police at the time they
acted. The Crown cannot rely on ex post facto
justifications. ... [W]hat must be present is
evidence to support the conclusion that “there
were grounds to be concerned about the
possibility of violence” [para. 20]

Thus, the main question in this case was “whether
the police had reasonable grounds for concern to
justify use of an unannounced, forced entry while
masked.” In answering this question, Justice
Cromwell noted that, in addition to according the
trial judge substantial fact finding deference, two
other factors were important:
• “[T]he decision by the police must be judged by
what was or should reasonably have been
known to them at the time, not in light of how
things turned out to be. Just as the Crown
cannot rely on after-the-fact justifications for the
search, the decision about how to conduct it
cannot be attacked on the basis of
circumstances that were not reasonably known
to the police at the time. ... Whether there
existed reasonable grounds for concern about
safety or destruction of evidence must not be
viewed “through the ‘lens of hindsight’ ”.
• “[T]he police must be allowed a certain amount
of latitude in the manner in which they decide
to enter premises. They cannot be expected to
measure in advance with nuanced precision the
amount of force the situation will require. ... It is
often said of security measures that, if
something happens, the measures were
inadequate but that if nothing happens, they
were excessive. These sorts of after-the-fact

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Volume 10 Issue 5 - September/October 2010
assessments are unfair and inappropriate when
applied to situations like this where the officers
must exercise discretion and judgment in
difficult and fluid circumstances. The role of the
reviewing court in assessing the manner in
which a search has been conducted is to
appropriately balance the rights of suspects with
the requirements of safe and effective law
enforcement, not to become a Monday morning
quarterback.”
In this case, the majority agreed with the trial judge
that the police had sufficient information to justify
their decision to undertake a hard, no-knock entry.
They had a genuinely held belief that was
reasonably based; there were ample grounds for the
police to be concerned about violence and the
destruction of evidence:
• It was reasonable for the police to be concerned
about their safety and the safety of other
occupants given their experience that cocaine
traffickers frequently use violence. A cocaine
trafficker who associated with violent people
was welcome in the residence. In a dial-a-dope
operation, the dealer usually has a place from
which to operate that could contain drugs,
money, weapons, and score sheets. Reloading
residences, like the one suspected here, are
used to reduce the risk of losing large amounts
of drugs or money in the event of a police stop
while making deliveries;
• The police had reasonable grounds to be
concerned that the evidence would be
destroyed because they believed that cocaine
would be found in the premises and it is a
substance that may be easily destroyed;
• No circumstances arose before the search
warrant was executed which might remove the
exigency of the situation;
• The police had no means of knowing who, if
anybody, was in the residence or whether there
was any person in the residence who would
destroy the cocaine evidence if they learned of
police presence at the door;
• The fact that the occupants of the house had no
prior criminal record did not affect the
reasonableness of the police concern that

evidence could be destroyed. Evidence could
just as easily be destroyed by someone without
a criminal as a person with a criminal record;
• The day before entry a vehicle associated with
the dial-a-dope operation was occupied by an
individual with an extensive criminal record,
which included weapons and drug charges, and
an individual believed involved in the operation
had driven to the accused’s residence, pulled up
to the rear, and its driver left the vehicle and
appeared to retrieve something from the yard of
the residence near the fence. The car was
stopped about an hour later and its driver was
wearing body armour and was in possession of
cocaine and cash. There was good reason to be
concerned about violence. If this person thought
his business was dangerous enough to justify
wearing body armour, it can hardly have been
unreasonable for the police to think the same
thing. These additional facts strengthened the
grounds to believe that cocaine would be in the
residence (and therefore liable to be easily
destroyed) and that a violent reaction to entry
might be encountered.
As for the use of masks by police, the Supreme Court
found it was not appropriate for a court to review
every detail of the search in isolation. Instead, the
question was “whether the search overall, in light of
the facts reasonably known to the police, was
reasonable,” said Justice Cromwell. “Having
determined that a hard entry was justified, I do not
think that the court should attempt to micromanage
the police’s choice of equipment.” He also noted
that this was not a case where police were relying
on a blanket policy to always use a hard entry
during a search in the absence of evidence
indicating a risk of violence or destruction of
evidence.
Nor were the police required to undertake further
investigation. “The police did not just show up at a
previously uninvestigated residence and barge in,”
said Justice Cromwell. The police had surveilled the
residence on three occasions before the day of entry
for almost 10 hours and, on the day of entry, they
continually watched the house from the morning
until entry was made in the evening. The police had
also checked several computerized databases. “The

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Volume 10 Issue 5 - September/October 2010
warrant with them when a copy was in the
possession of the primary investigator who was
in charge of the search and immediately at hand.
Moreover, it cannot in my view be said that the
police conduct in relation to the warrant
contributed in any respect to making this search
unreasonable. [para. 43]

police reasonably believed that the [accused’s]
residence was being used in a criminal drug dealing
enterprise carried on by members of a violent
criminal gang and that the [accused] had some
association with at least one gang member,” wrote
Justice Cromwell. “The police were entitled to draw
reasonable inferences from these facts.” Here, the
search was reasonable given the facts collectively
known to the police.

The search was not unreasonable and the accused’s
appeal was dismissed.

Failure to Have Warrant in Hand

A Different View

As for the accused’s contention that the search was
unreasonable because the tactical team did not have
a copy of the warrant when it made the entry, it too
was rejected. Section 29(1) of the Criminal Code
reads, “[i]t is the duty of every one who executes a
process or warrant to have it with him, where it is
feasible to do so, and to produce it when requested
to do so.” No one ever asked to see a copy of the
warrant. Therefore, there was no issue of any failure
to produce the warrant when requested to do so. All
15 members (nine tactical and six investigative)
were not required to have a copy of the warrant with
them. The majority said the sensible, purposive, and
appropriate interpretation of s. 29(1) in the context
of a search with multiple officers was that they were
not all required to have a copy. The lead investigator
had a copy of the warrant and was in the residence
within four minutes. The role of the tactical team
was to make the entry and secure the premises and
then turn the site over to the investigators who
would actually perform the search. It was sufficient
that the police team had a copy of the warrant with
them when executing it:

Justice Fish, writing a three member dissenting
opinion, found the force used by police was not
justified. He found that the police had no reasonable
belief that a dynamic entry was necessary to protect
the safety of the officers nor that evidence would be
concealed or destroyed by anyone present or likely
to be present at the time if they did not make a swift
entry. As well, tactical team members were bound
by s. 29 of the Criminal Code to have the search
warrant with them and there was no evidence that
this was not feasible. He concluded that the search
did not comply with the statutory constraints of s. 12
of the CDSA, nor the accused’s s. 8 Charter rights:

[T]he purpose of s. 29(1) is to allow the
occupant of the premises to be searched to
know why the search is being carried out, to
allow assessment of his or her legal position and
to know as well that there is a colour of
authority for the search, making forcible
resistance improper. These purposes, in my view,
are fully achieved by insisting that the warrant
be in the possession of at least one member of
the team of officers executing the warrant.
While I think it is a better practice for someone
among the first group of officers in the door to
have a copy on his or her person, I would not
conclude that the officers failed to have the

The absence of any prior investigation regarding
the [accused’s] home and its occupants; the
violence and destructiveness of the entry; the
force used to subdue the sole, mentally disabled
occupant of the house; the total failure to justify
departure from the “knock and announce” rule
in respect of the [accused’s] residence; the use of
masks without justification; the use of drawn
weapons without any reason to suspect that their
physical security was at risk; the failure of the
entering officers to have with them, as required
by law, the search warrant under which they
were acting; and all the other facts and
circumstances I have mentioned leave me with
no doubt that the police in this case violated the
right of the [accused], enshrined in s. 8 of the
Charter, “to be secure against unreasonable
search or seizure”.

The minority would have excluded the evidence
under s. 24(2), set aside the accused’s conviction,
and substituted an acquittal.
Complete case available at www.scc-csc.gc.ca

PAGE 32

Volume 10 Issue 5 - September/October 2010

SIMPLY VIEWING IMAGES
ONLINE DOES NOT NECESSARILY
CONSTITUTE POSSESSION
R. v. Morelli, 2010 SCC 8
A computer technician attended the
accused’s residence to install a highspeed Internet connection for a home
computer. In the spare bedroom
where the computer was located the
technician observed a web-cam on a tripod which
was plugged into a VCR. The web-cam was pointed
toward the accused’s three-year-old daughter who
was playing with some toys on the floor. On the
computer screen desktop the technician observed
two icons, one entitled “Lolita Porn” and one
entitled “Lolita XXX”. Because he could not
complete the high-speed Internet connection that
day, the technician returned the following day to
complete the task and now observed that the
children’s toys were put away, the web-cam was
turned toward the computer chair, the computer
hard drive had been formatted, and all website links
were removed from the desktop. A couple of months
later the technician reported what he had seen to the
police. The investigating officer also obtained some
information from a colleague experienced in
investigating child exploitation offences. He was told
that persons involved in these types of crimes
treasure child pornography collections, categorizing
and cataloguing images. An active Internet
connection was verified as still being provided to the
residence and an information to obtain a search
warrant was drafted a couple of months later and
signed by a justice.
At trial the accused challenged the validity of the
search warrant, arguing the information was so
flawed that the justice could not have been satisfied
there were reasonable grounds to issue it. The trial
judge concluded that there was sufficient evidence
to allow the authorizing justice to grant the warrant.
The accused was convicted of possessing child
pornography and given an 18 month conditional
sentence. His appeal to the Saskatchewan Court of
Appeal was dismissed by a majority. Justice
Richards, however, dissented and would have

allowed the appeal because he opined that the trial
judge erred in holding that there was a reasonable
belief that the accused’s computer contained child
pornography. Thus, in his view, the search breached
the accused’s s. 8 Charter rights.
The accused then appealed to the Supreme Court of
Canada contending that the search warrant was
invalid because there were no reasonable grounds.
He submitted that the search of his computer
breached his s. 8 Charter rights and that the
evidence found on his computer should have been
excluded. The Crown, on the other hand, suggested
that there were reasonable grounds justifying the
issuance of the warrant and, even if the warrant was
improperly issued, the evidence should be admitted
under s. 24(2) of the Charter and the accused’s
conviction affirmed. In a 4:3 ruling, however, the
Supreme Court of Canada overturned the accused‘s
conviction.

Possessing v. Accessing Child Pornography
The majority first elaborated on the distinctions
between possessing child pornography and
accessing it. The accused was charged with, and the
warrant was based on, possession not access.
Possessing child pornography is an offence under s.
163.1(4) of the Criminal Code. Justice Fish, however,
found that “merely viewing in a Web browser an
image stored in a remote location on the Internet
does not establish the level of control necessary to
find possession. Possession of illegal images requires
possession of the underlying data files in some way.
Simply viewing images online constitutes the
separate crime of accessing child pornography
[under] s. 163.1(4.1) of the Criminal Code.”
“Possession”, defined in s. 4(3) of the Criminal Code,
includes personal possession, constructive
possession, and joint possession. Knowledge and
control are essential elements common to both
personal and constructive possession, the two types
of possession applicable to this case. In terms of
personal possession, an “accused must be aware that
he or she has physical custody of the thing in
question, and must be aware as well of what that
thing is. Both elements must co-exist with an act of
control (outside of public duty).”

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Volume 10 Issue 5 - September/October 2010
Constructive possession is established where the
accused did not have physical custody of the object
in question, but did have it “in the actual possession
or custody of another person” or “in any place,
whether or not that place belongs to or is occupied
by him, for the use or benefit of himself or of
another person.” Constructive possession is
complete where the accused: (1) has knowledge of
the character of the object, (2) knowingly puts or
keeps the object in a particular place, whether or
not that place belongs to him or her, and (3) intends
to have the object in the particular place for his or
her “use or benefit” of that or another person.

illegal image, and that evidence of that
possession will be found in the place to be
searched. It is not enough to provide reasonable
and probable grounds to believe that the alleged
offender viewed or accessed illegal images using
a computer, without knowingly taking
possession — which includes control — of the
underlying files in some way. [para. 31]

Nor did having an Internet cache on a computer copies of files automatically stored on the hard drive
by a Web browser - constitute possession:
When accessing Web pages, most Internet
browsers will store on the computer’s own hard
drive a temporary copy of all or most of the files
that comprise the Web page. This is typically
known as a “caching function” and the location
of the temporary, automatic copies is known as
the “cache”. While the configuration of the
caching function varies and can be modified by
the user, cached files typically include images
and are generally discarded automatically after a
certain number of days, or after the cache grows
to a certain size.

However, unlike tangible objects such as traditional
photographs, virtual objects can be stored as digital
files or displayed on computer monitors. Digital
information encoding the image can be possessed
even if no representation of the image is visible.
Similarly, information underlying an image displayed
on a person’s computer monitor might remain
outside that person’s possession, located on a server
thousands of kilometres away, over which that
person has no control.

On my view of possession, the automatic
caching of a file to the hard drive does not,
without more, constitute possession. While the
cached file might be in a “place” over which
the computer user has control, in order to
establish possession, it is necessary to satisfy
mens rea or fault requirements as well. Thus, it
must be shown that the file was knowingly
stored and retained through the cache. [paras.
35-36]

The majority of the Supreme Court concluded that
the offence of possessing child pornography as it
relates to possession of an image on a computer
requires possession of the image (underlying data)
file and not just its decoded visual representation or
mere depiction on-screen. This was so because:
• Parliament has made accessing illegal child
pornography a separate crime, different from
possession; and
• The traditional objects of criminal possession,
such as contraband, drugs, and illegal weapons,
are all things, like a data file, that could
potentially be transferred to another person.
The Court stated:
Plainly, the mere fact that an image has been
accessed by or displayed in a Web browser does
not, without more, constitute possession of that
image. An ITO seeking a warrant to search for
evidence of possession (rather than accessing)
must therefore provide reasonable and probable
grounds to believe that the alleged offender
possesses (or has possessed) digital files of an

Here, the charge was not based on the accused
using his cache to possess child pornography. Most
computer users are unaware of the contents of their
cache, how it operates, or even its existence and,
absent that awareness, they lack the mental or fault
element essential to a finding that they culpably
possess the images in their cache.

The Search - Reasonable Grounds
Justice Fish also concluded that, even if the offence
of possession included viewing an image (like the
minority opined), the police nonetheless failed to
establish the reasonable grounds necessary for the
issuance of the search warrant. “Under the Charter,

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Volume 10 Issue 5 - September/October 2010
before a search can be conducted, the police must
provide ‘reasonable and probable grounds,
established upon oath, to believe that an offence has
been committed and that there is evidence to be
found at the place of the search’,” said Justice Fish.
“These distinct and cumulative requirements
together form part of the ‘minimum standard
consistent with s. 8 of the Charter for authorizing
search and seizure’”. But on amplification, there
were erroneous statements that needed to be excised
as well as numerous omissions that violated the
police obligation to provide full and frank
disclosure. The ITO was carelessly drafted,
materially misleading, and factually incomplete. The
informant was required to present all material facts,
favourable or not; an informant must be careful not
to “pick and choose” among the relevant facts in
order to achieve the desired outcome. Irrelevant or
insignificant details may be omitted, but there must
not be material non-disclosure.

What is Amplification?
When a reviewing Court assesses the sufficiency of a
warrant application, it does not decide whether it
would have issued the warrant, but must determine
whether there was sufficient credible and reliable
evidence to permit a justice of the peace to find
reasonable grounds to believe that an offence had
been committed and that evidence of that offence
would be found at the specified time and place. In
doing so, the reviewing court does not only review
the ITO that was presented to the justice of the
peace but may also hear “amplification”, or additional
evidence, presented at the voir dire to correct minor
errors in the ITO. Erroneous information included in
the original ITO will be excluded. Amplification
evidence may correct good faith police errors in
preparing the ITO and some minor, technical errors in
drafting the affidavit, but not deliberate attempts to
mislead the authorizing justice. Amplification
evidence, however, cannot be adduced as a means
for police to retroactively authorize a search warrant
that was not initially supported by reasonable
grounds.

In this case the police officer selectively presented
facts that painted a less
Once the material facts
omitted
from the ITO are
objective and more villainous
“Under the Charter, before a
taken
into
consideration, it is
picture than what would have
search can be conducted, the
apparent
that
none of the
emerged had he disclosed all
other
evidence
in
the ITO —
police must provide ‘reasonable ...
the material information
principally
the
presence
of the
available to him at the time.
grounds, established upon oath,
webcam and the claims about
Once stripped of its erroneous
propensities of unspecified
to believe that an offence has
and tendentious assertions, and
“types of offenders” — can
amplified on review, there was
been committed and that there is
elevate mere suspicion into
insufficient credible and
sufficient
grounds for a
evidence to be found at the place
reliable evidence to have
warrant. [paras. 95-96]
of the search’.”
permitted the justice to find
reasonable grounds to believe
Since the warrant should not
that both the accused was in culpable possession of
have been issued, the search breached s. 8 of the
child pornography and that evidence of that crime
Charter. The majority then analyzed the admissibility
would be found in his computer:
of evidence under s. 24(2). “Justice is blind in the
sense that it pays no heed to the social status or
In short, ... the ITO in this case is reduced by
personal characteristics of the litigants,” wrote
scrutiny to two links in the browser’s list of
Justice Fish. “But justice receives a black eye when it
“Favourites” — links that were known to have
turns a blind eye to unconstitutional searches and
been erased four months earlier. At best, this
seizures as a result of unacceptable police conduct
may be a ground for suspicion, but surely the
or practices. The public must have confidence that
deleted links afford no reasonable and probable
invasions of privacy are justified, in advance, by a
grounds to believe that the [accused] was in
possession of child pornography, and still less
genuine showing of probable cause. To admit the
that evidence of that crime would be found
evidence in this case and similar cases in the future
upon a search of his computer.
would undermine that confidence in the long term.”

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Volume 10 Issue 5 - September/October 2010
The accused’s appeal was allowed, the evidence
excluded, his conviction quashed, and an acquittal
entered.

A Second Opinion

R. v. Carr, 2010 ONCA 290

Justice Deschamps, writing a three member minority
opinion, had a more expansive conception of
possession. In her view, the accused did not need to
have control in a place belonging to him, such as his
hard drive. Instead, constructive possession simply
required the material to be “in any place” for the use
or benefit of the accused. Even if the accused did
not actually download offending material,
possession can be established if they have control
over the material for their use or benefit, or for that
of someone else. Thus, when reviewing the
authorization to search for evidence of child
pornography possession, a court must ask whether
there was credible evidence to support a reasonable
belief that an accused had control, and not that the
material had been downloaded and was in fact in
the computer.
In this case, the minority also found that the search
warrant was properly based on reasonable grounds.
“Determining whether evidence gives rise to
[reasonable grounds for belief] does not involve
parsing the facts or assessing them mathematically,”
said Justice Deschamps. “Rather, what the judge
must do is identify credible facts that make the
decision to authorize a search reasonable in view of
all the circumstances.” It is a non-technical,
common-sense approach. A reviewing court does
not ask whether it would have reached the same
decision as the issuing judge, thereby substituting its
own opinion for that of the issuing judge. Instead, it
merely determines whether there was credible
evidence on which the issuing judge’s decision
could be based. And the onus lies with the accused
to demonstrate that the ITO was insufficient. Here
the minority concluded there was reliable evidence
that might reasonably be believed as the basis for
which the warrant could have issued. The search
warrant was valid and there was no need to consider
s. 24(2) and the exclusion of evidence.
Complete case available at www.scc-csc.gc.ca

ADMINISTERING CHEMICAL WAS
A ‘SERIOUS PERSONAL INJURY
OFFENCE’: CSO UNAVAILABLE
Th e a c c u s e d p l e d g u i l t y t o
administering a chemical (Kathlon)
with the intent to cause bodily harm
under s. 245(a) of the Criminal Code.
He began having an extra-marital
affair with the victim, his co-worker, for about five
years. After the relationship ended the victim
suffered burns and blisters to the bottom of her feet,
back, thighs, arms, and abdomen. At one point the
situation became so severe that she had difficulty
walking and needed to be off work. Her desk had
also been tampered with; memos had gone missing,
papers were moved, her computer was damaged,
and notes were left on her desk. A private
investigator installed hidden surveillance equipment
to monitor her work area. The accused was seen
tampering with the victim’s work area and spraying a
substance, later determined to be Aciticide SPX
Kathlon, on her chair, computer, and mouse.
Kathlon is a chemical causing severe itching,
burning and blistering on contact with human skin.
The trial judge, however, found the accused’s
conduct did not amount to a “serious personal injury
offence” under s. 752 of the Criminal Code such that
a conditional sentence was available. He gave the
accused an 18 month conditional sentence and two
years probation.
On appeal by the Crown the Ontario Court of
Appeal found the accused’s conduct in this case did
constitute a serious personal injury offence because
“he plainly endangered the victim’s safety on any
definition of endangerment and harm. He
intentionally exposed her to a corrosive chemical
that caused her serious bodily injury,” said the Court.
He was also well aware of the harm he was causing.
He used gloves to handle the substance and he
attended a work place meeting about the victim’s
difficulties at work. He was clearly aware or wilfully
blind to the harm he was causing. A custodial
sentence of two years less a day was substituted.
Complete case available at www.ontariocourts.on.ca

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Volume 10 Issue 5 - September/October 2010

SENTENCE REDUCED TO PERMIT
DEPORTATION APPEAL
R. v. B.R.C., 2010 ONCA 561
The accused pled guilty to sexual
exploitation in the Ontario Superior
Court of Justice. The Crown asked for
three years in custody while the
accused asked for a conditional
sentence. The judge sentenced him to 30 months
imprisonment. He had been in a position of trust
and authority over the victim who was the son of his
common law partner. The offence was prolonged
(the victim was between 15 and 17 years old at the
time of the offence) and included several acts of anal
intercourse. The accused was a first-time offender,
had a good employment history, expressed his
remorse, was dealing with a drug and alcohol
problem, and appeared to be a low risk to re-offend.
He was subsequently ordered deported from Canada
as a result of his conviction and sentence.
The accused, now 45 years old, appealed his
sentence to the Ontario Court of Appeal contending
that he was subject to a deportation order because
his sentence was more than two years and,
therefore, it should be reduced to allow him a
chance to appeal. He had come to Canada from
Scotland as a 14 month-old infant but neither he nor
his parents took any steps to become a Canadian
citizen. Under s. 64(2) of the Immigration and
Refugee Protection Act a foreign national or
permanent resident may not appeal their deportation
order to the Immigration Appeal Division on the
grounds of serious criminality if the crime was
punished in Canada by a term of imprisonment of at
least two years.
The Ontario Court of Appeal agreed with the
accused, finding the 30 month sentence was not fit
because of the deportation order. It was lowered to
two years less a day plus six months probation. “[I]n
the unusual circumstances of this case, the certainty
of deportation is a factor that properly tips the scale
in favour of a sentence of two years less a day,” said
Justice Sharpe, speaking for the Court of Appeal.
“While the sentencing process should not be used to
circumvent the provisions of the Immigration and

BY THE BOOK:
Immigration and Refugee Protection Act
Division 7 Right of Appeal
s. 64(1) No appeal may be made to the
Immigration Appeal Division by a foreign
national or their sponsor or by a
permanent resident if the foreign national
or permanent resident has been found to
be inadmissible on grounds of security, violating
human or international rights, serious criminality or
organized criminality.
Serious criminality
(2) For the purpose of subsection (1), serious
criminality must be with respect to a crime that was
punished in Canada by a term of imprisonment of at
least two years.
Division 4 Inadmissibility
Serious criminality
s. 36(1) A permanent resident or a foreign national is
inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence
under an Act of Parliament punishable by a maximum
term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term
of imprisonment of more than six months has been
imposed;
(b) having been convicted of an offence outside
Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at
least 10 years; or
(c) committing an act outside Canada that is an
offence in the place where it was committed and that,
if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum
term of imprisonment of at least 10 years.

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Volume 10 Issue 5 - September/October 2010
Refugee Act, the calculation of the appropriate
sentence is not an exact science. Where there is a
range of possible sentences, the fact that an offender
will face deportation ‘is one of the factors which is
to be taken into consideration … in conjunction
with all of the other circumstances of the case’ in
choosing the appropriate sentence and tailoring the
sentence to fit the crime and the offender.” The Court
so concluded for the following reasons:
1.

The accused was within less than two months
of his statutory release date. He had effectively
served his custodial time. Reducing the
sentence and adding a term of probation
would not significantly interfere with the
practical effect of the sentence imposed;

2.

The accused had institutional reports
indicating he had made significant progress in
custody, completing programs to assist sex
offenders and those with substance abuse
problems, and that he was a low risk of reoffending;

3.

The accused had married his long-term
partner who was a Canadian citizen;

4.

It was apparent that he would almost certainly
be deported to a country with which he had
no meaningful connection if his sentence was
not reduced.

“The sentencing process must retain ‘a human
face’,” said Justice Sharpe. “Appellate courts
appropriately exercise their powers in exceptional
c a s e s t o avo i d u n i n t e n d e d p e n a l t i e s a n d
consequences that would be patently unjust and
unfair. … It would be unfair and unjust to leave in
place a sentence that would have the unintended
effect of condemning the [accused] to exile in a
country with which he has no meaningful
connection.” The accused’s sentence appeal was
allowed.
Complete case available at www.ontariocourts.on.ca

“The sentencing process must retain ‘a
human face’.”

LAWFUL PROBATION ORDER
NOT NULLIFIED BY NEW
SENTENCE
R. v. Knott, R. v. D.A.P., 2010 BCCA 386
Case 1: R. v. Knott
In 2005 the accused pled guilty to
possessing a weapon dangerous to
the public peace (an axe), breaking
and entering a residence, possession
of stolen identification, and
obstruction of a police officer. He was sentenced to
two years in prison followed by three years
probation. He was also sentenced to a one year
concurrent sentence on a second charge of breaking
and entering with another three-year probation
order. The following month, in a separate
proceeding, he pled guilty to charges of possessing
stolen property (an automobile), possession of breakin instruments, and obstructing a police officer. He
was sentenced to 16 months in prison, to be served
concurrently with his other sentences, followed by
three years of probation. During his incarceration he
assaulted a corrections officer and a week prior to
the expiry of his two year custodial sentence he was
sentenced to six months for the assault to be served
consecutively to the sentence he was serving. Four
months later he was sentenced to eight months of
incarceration plus a year probation for assaulting an
inmate. After serving a total sentence of two years,
11 months, and 16 days he was released and
subsequently breached a condition of his 2005
probation order; operating a vehicle without the
registered owner present. He was sentenced to 60
days for this breach.

Case 2: R. v. D.A.P.
The accused pled guilty to sexually assaulting the
13-year-old daughter and 9-year-old son of his
common-law spouse. He was sentenced to a
conditional sentence of two years less a day plus
three years of probation. Several months later he
pled guilty to breaking and entering and unlawful
confinement; he had forced entry into the residence
of his former partner, the mother of the sexual abuse

PAGE 38

Volume 10 Issue 5 - September/October 2010
complainants. His conditional sentence was
converted to incarceration and he was also
sentenced to three years’ in prison on the new
charges, to be served concurrently.

Ruling
The accuseds sought to have their lawfully imposed
probation orders set aside because of the longstanding practice in applying s. 139 of the
Corrections and Conditional Release Act (CCRA) to
nullify probation orders when an offender receives a
cumulative sentence in excess of two years. The
Crown, on the other hand, challenged the law
relating to the retroactive invalidation of lawfully
imposed probation orders as a result of these
sentencing merger provisions.

sentenced to one sentence commencing at the
beginning of the first of those sentences and ending
on the expiration of the last sentence to be served.
Justices Hall and Bennett, co-authoring the opinion
for the unanimous Court of Appeal, re-examined
these merger provisions to probation orders. Three
applications of the “two year rule” found in
jurisprudence were reconsidered as follows:
1. A single judge imposes a sentence at one sitting
which, either individually or cumulatively,
exceeds two years (eg. consecutive sentences
imposed at the same time by the same judge).
This is a straightforward application of s. 731(1)
(b) of the Criminal Code and is an illegal
sentence. Any probation order imposed at this
time is unlawful and will be set aside.
Section 139(1) of the CCRA is not engaged.

A division of five judges of the British Columbia
Court of Appeal was empaneled to hear the case.
The law, as it stood at the time of the appeal, was to
merge sentences under s. 139 of the CCRA and an
otherwise lawfully imposed probation order was
rendered invalid if an offender received a sentence
that was cumulatively in excess of two years,
regardless of when the sentences were imposed.
Section 731(1) of the Criminal Code only allowed for
the imposition of a probation order if the term of
imprisonment did not exceed two years. Section
139(1) of the CCRA deemed a person to have been
Sentence 1

24 months (2 yrs)
August 18, 2005

Sentence 2

12 months (1 yr)

Offence(s):
-possess dangerous weapon
-break & enter
-possess stolen identification
-obstructing a police officer

BCCA ruling: NO CHANGE. “[T]he judge who
imposes a sentence at one sitting, which is
either individually or cumulatively in excess of
two years, cannot add probation to that
sentence, on a plain reading of s. 731(1),” said
the Court of Appeal.

+ 3 yrs. probation
breach
probation
January
2009

+ 3 yrs. probation
Offence(s):
-break & enter

August 18, 2005

Sentence 3

+ 3 yrs. probation

16 months
September 8, 2005

R. v. Knott Sentencing Grid

Offence(s):
-possess stolen automobile
-possess break-in instruments
-obstructing a police officer
Sentence 4
Offence(s):
-assault (corrections officer)

6 months
August 10, 2007

*served total sentence of 2 yrs, 11 mos, 16 days*

Sentence 5

8 months
December 3, 2007

PAGE 39

+ 1 yr. probation
Offence(s):
-assault (inmate)

Volume 10 Issue 5 - September/October 2010

Sentence 1

+ 3 yrs probation

24 months (2 yrs) less a day CSO
June 3, 2008
Sentence 2
36 months (3 yrs) + CSO (sentence 1 above) converted to incarceration
February 19, 2009

R. v. D.A.P. Sentencing Grid
only be imposed if the total of the two
sentences does not exceed two years. But the
merger provisions of s. 139 of the CCRA used
in calculating the total sentence should start
from the remanent of the first sentence, as
opposed to starting with the first day of the first
sentence. If the total of the new sentence and
the remanent exceeds two years, then
probation should not be ordered or, said
differently, a probation order may be imposed
with a consecutive term of imprisonment if the
remanent of the prior sentence combined with
the new sentence does not exceed two years.

Corrections and Conditional Release Act
Multiple Sentences
Additional sentences
s.139(1) Where a person who is
subject to a sentence that has not
expired receives an additional
sentence, the person is, for the
purposes of the Criminal Code, the
Prisons and Reformatories Act and this Act, deemed to
have been sentenced to one sentence commencing at the
beginning of the first of those sentences to be served and
ending on the expiration of the last of them to be served.

2. The offender is already serving a sentence and
a judge proposes to impose a further sentence
(including probation) which will bring the total
of the sentences beyond two years (eg. a
sentence of two years or less with probation is
imposed consecutive to a sentence the offender
is currently serving). There were two
approaches in calculating the two year rule
when applying the sentence merger provisions
of s. 139 of the CCRA: (1) start with the
remanent of the first sentence and add it to the
second sentence or (2) start with the date on
which the first sentence was imposed. Using
either approach, probation orders had been
found to be unlawful if the entire sentence
exceeded two years. Therefore, in cases where
the calculated sentence exceeded two years
probation should not have been imposed.

3. An offender has been sentenced to a lawful
sentence and a probation order and a
subsequent sentence results in the merged
sentence extending beyond two years.
In
applying s. 139 of the CCRA the otherwise
lawful probation order would have been set
aside if the offender was required to serve more
t h a n t w o ye a r s , c a l c u l a t e d f r o m t h e
commencement of the first sentence. In other
words, a lawful probation order was rendered
illegal by the subsequent imposition of a
custodial sentence that, when added to the preexisting sentence, exceeded two years; the
unlawfulness resulted by application of
s. 139(1) of the CCRA.

BCCA ruling: Section s. 731(1)(b) of the
Criminal Code clearly limits probation orders to
situations where the sentence to be served does
not exceed two years. Therefore, probation
should not follow a sentence of more than two
years or, put another way, probation should

PAGE 40

BCCA ruling: Section 139 does not apply. “A
subsequent sentence should not be held to
invalidate a prior lawful sentence,” said the
Court. “Thus, regardless of any length of
sentence imposed subsequent to a lawful
probation order, the probation order is not
nullified nor does it otherwise become
unlawful by application of s. 139(1) of the

Volume 10 Issue 5 - September/October 2010
CCRA. The only exception is if the offender is
subsequently sentenced to life imprisonment
because then he or she will be on parole for
life. No sentence can be consecutive to a life
sentence, thus a probation order cannot follow
a life sentence. Any probation order in such
circumstances would be redundant.”

BY THE BOOK:
Probation Orders
Making a Probation Order (Criminal Code)

Application
Both accuseds had a lawfully imposed probation
order they were arguing became unlawful because
of the imposition of a subsequent sentence. Section
139 did not apply to merge Knott’s sentences; the
subsequent sentences did not invalidate the original
probation order. As for D.A.P., s. 139 also did not
apply. The probation order had not yet commenced
and his conditional sentence had not yet expired
when he received an additional sentence of three
years. “The three year maximum term for the
probation order is not violated because it will not
come into effect until he is released,” said the Court
of Appeal. “In both cases, the offenders were
sentenced to lawful terms of probation. The
imposition of the subsequent sentences does not
reach back to invalidate the probation order.” Both
appeals were dismissed.
Complete case available at www.courts.gov.bc.ca

Editor’s note: In R. v. G.E.R., 2001 NFCA 56, the
Newfoundland Court of Appeal also sat a five judge
panel to revisit one of its earlier decisions on
whether the total sentence was to be calculated from
the commencement of the first sentence or from the
remanent of it. It confirmed its previous decision and
held that the sentence calculation started at the
commencement of the initial sentence. The
probation order in that case was set aside, even
though it was otherwise a lawful sentence. This
reasoning was most recently applied by the
Newfoundland Court of Appeal in R. v. Howse,
2010 NLCA 40 (see Volume 10. Issue 4, p. 22).
Perhaps the Supreme Court will weigh in on this
someday and resolve the inconsistency across
provincial appellate courts applying the two year
rule using s. 139 of the CCRA.

s. 731(1) Where a person is convicted of
an offence, a court may, having regard to
the age and character of the offender, the
nature of the offence and the
circumstances surrounding its
commission, (a) if no minimum punishment is
prescribed by law, suspend the passing of sentence
and direct that the offender be released on the
conditions prescribed in a probation order; or (b) in
addition to fining or sentencing the offender to
imprisonment for a term not exceeding two years,
direct that the offender comply with the conditions
prescribed in a probation order.
Duration of Order
“[N]o probation order shall continue in force for more
than three years after the date on which the order
came into force”: s. 732.2(2)(b). The three year
maximum length is calculated from the date the order
comes into force, not from the date it was imposed.
If an offender is serving a sentence of probation, and
receives an additional custodial sentence, the
probation order continues in force so far as possible
while the offender is in custody: s. 732.2(2)(a). The
court, in these circumstances, may extend the order of
probation for a period of up to one additional year: s.
732.2(5)(e). It was the intention of Parliament that a
probation order should continue to run despite the
imposition of a subsequent sentence of incarceration.
Failing or refusing to comply with probation order,
without reasonable excuse, is a hybrid offence. If
proceeded by indictment a sentence of imprisonment
for a term not exceeding two years may follow. A
summary conviction may bring imprisonment for a
term not exceeding 18 months and/or a $2000 fine.

PAGE 41

Volume 10 Issue 5 - September/October 2010

2009 POLICE REPORTED CRIME
In July 2010 Statistics Canada
released its “Police reported
crime statistics in Canada,
2009” report. Highlights of this
recent collection of crime data
include:
• there were 2,161,313 crimes (excluding traffic)
reported to Canadian police in 2009; this
represents 43,330 fewer crimes reported when
compared to 2008;
• the total crime rate dropped -3%. This includes a
violent crime rate drop of -1% and a property
crime rate drop of -4%;
• impaired driving saw an increase of +3% to a
total of 88,630 impaired driving offences. Of
those, 154 involved death and another 890 bodily
harm.
Source: Statistics Canada, 2010, “Police-reported crime statistics in
Canada, 2009”, Catalogue no. 85-002-X, Vol. 30, no. 2, Summer
2010.

Police-Reported Impaired Driving Offences
Province

Rate

Impaired Driving
Offences

Rate change
2008 to 2009

SK

611

6,289

+1%

AB

477

17,597

0%

PEI

464

654

+39%

BC

384

17,099

+18%

NF

339

1,724

+8%

NS

335

3,142

+18%

NB

324

2,426

-11%

MB

303

3,706

+21%

QC

211

16,493

0%

ON

139

18,129

-4%

T=Total Crime Severity Index
V=Violent Crime Severity Index
NV=Non-Violent Crime Severity Index

Police-Reported Crime Severity Indexes

YK
T-179.9
V-198.8
NV-322.1

NWT
NU

T-323.3
V-326.4
NV-322.1

T-336.9
V-485.5
NV-279.8

BC

AB

SK

MB

T-110.3
V-109.8
NV-110.5

T-104.7
V-105.0
NV-104.5

T-149.4
V-155.2
NV-147.2

T-131.1
V-175.4
NV-114.0

NF
T-72.1
V-60.9
NV-76.4

QC
ON

PEI

T-82.0
V-81.0
NV-82.4

T-65.5
V-44.0
NV-73.8

T-68.9
V-81.5
NV-64.0

NS
NB

The Crime Severity Index (CSI) is another measure of police-reported crime.
Each offence is assigned a weight, derived from sentences handed down by
criminal courts. The more serious the average sentence, the higher the offence is
weighted. The weighted offences are then summed and divided by the population.
An overall CSI has been created as well as a violent CSI and non-violnet CSI.

PAGE 42

T-70.7
V-72.0
NV-70.2

T-83.9
V-89.6
NV-81.6

Volume 10 Issue 5 - September/October 2010

Police-Reported Crime Rates per 100,000 population
Canada’s population

33,739,859
YK
23,160

NWT
42,080

NU
37,759

NF
6,473

Canada
6,406

BC
9,006

AB
8,540

SK
12,694

QC
5,016

MB
9,800

PEI
6,263

ON
4,704

NS
6,932
NB
5,627

Homicide
There were 610 homicides reported, one less than
the previous year. Ontario had the most homicides
at 178, followed by British Columbia (118), Alberta
(95) and Quebec (88). Prince Edward Island reported
none while the province of Newfoundland only
reported one. The Yukon and the Northwest
Territories each reported two homicides. As for
provincial homicide rates, Manitoba had the highest
(4.7 per 100,000 population) followed by
Saskatchewan (3.5), Alberta and British Columbia
(both at 2.6), and Nova Scotia and New Brunswick
(both at 1.6). As for Census Metropolitan Areas
(CMA), Abbotsford-Mission, BC had the highest
homicide rate at 5.2. The Canadian homicide rate
was 1.8.
Top Ten CMA Homicide Rates per 100,000

Canada’s Top Ten Reported Crimes
Offence

Number

Theft Under $5,000 (non-motor vehicle)

550,183

Mischief

362,767

Break and Enter

205,710

Assault-level 1

181,570

Administration of Justice Violations

169,955

CMA

Rate

CMA

Rate

Disturb the Peace

118,815

Abbotsford-Mission, BC

5.2

Edmonton, AB

2.6

Motor Vehicle Theft

108,172

Thunder Bay, ON

5.0

Vancouver, BC

2.6

Fraud

90,623

Winnipeg, MB

4.1

Kingston, ON

2.5

Saguenay, QC

3.4

Greater Sudbury, ON

2.4

Impaired Driving

88,630

Halifax, NS

3.0

Saskatoon, SK

2.3

Uttering Threats

78,407

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Volume 10 Issue 5 - September/October 2010

Robbery

Top Ten CMA Robbery Rates per 100,000

In 2009 there were 32,239 robberies reported,
resulting in a national rate of 96 robberies per
100,000 population. Manitoba had the highest
robbery rate followed by Saskatchewan, British
Columbia, and Alberta.

Police-Reported Robberies
Robberies

Rate change
2008 to 2009

CMA

Rate

CMA

Rate

Winnipeg, MB

293

Montreal, QC

145

Regina, SK

214

Toronto, ON

134

Saskatoon, SK

204

Thunder Bay, ON

129

Vancouver, BC

152

Halifax, NS

199

Edmonton, AB

149

Abbotsford-Mission, BC

114

Province/
Territory

Rate

MB

198

2,417

+25%

SK

120

1,235

-4%

BC

111

4,952

-10%

AB

100

3,706

-5%

ON

93

12,210

+1%

In 2009 there were 205,710 breakins reported to police. The national
break-in rate was 610 break-ins per
100,000 people. Nunavut had the
h i g h e s t b r e a k - i n ra t e ( 1 , 9 7 3 )
followed by the Northwest Territories
(1,651) and Saskatchewan (941).

QC

86

6,759

-5%

Police-Reported Break-ins

NU

71

23

+26%

NS

62

584

+1%

NWT

30

13

YK

27

NB

Break and Enter

Province/
Territory

Rate

Break-ins

Rate change
2008 to 2009

-41%

NU

1,973

635

-5%

9

-45%

NWT

1,651

717

-16%

26

197

-6%

SK

941

9,698

-2%

NF

23

115

-16%

MB

860

510

+3%

PEI

13

19

-22%

YK

761

256

-1%

CANADA

96

32,239

-2%

BC

755

33,622

-15%

QC

744

58,282

+2%

AB

629

23,181

-3%

NF

566

2,881

+2%

NS

543

5,090

0

PEI

507

715

-12%

NB

463

3,470

-9%

ON

433

56,653

-4%

CANADA

610

205,710

-4%

• robberies with a firearm accounted
for 15% of all robberies while a
knife was used in 30%;
• Winnipeg, MB had the highest CMA rate of
robbery in Canada (293), 26% higher than its
2008 rate. Saguenay, QC had the lowest rate (24).
Three Ontario CMAs reported jumps of more
than +30% in robberies; Kingston (+52%),
Guelph (+47%), and Greater Sudbury (+31%);
• two CMAs reported declines in robberies of more
than -20%; Trois-Rivieres, QC (-27%) and St.
John’s, NF (-25%).

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Volume 10 Issue 5 - September/October 2010
• break-ins accounted for nearly 15% of all
property crimes;
• 60% of break-ins were to a residence, 30% to a
business location, and 10% to other locations,
such as a shed or detached garage;
• residential break-ins dropped -2% while business
break-ins declined -9%;
• the 2009 break-in rate was -42% lower than it
was a decade ago;
• among CMAs, Trois-Riveieres, QC reported the
highest break-in rate (875) while Toronto reported
the lowest (318). Peterborough, ON (+27%),
Saguenay, QC (+21%), and Moncton, NB
(+13%) all reported double digit increases in the
break-in rate, while Abbotsford-Mission, BC
(-37%), Victoria, BC (-29%), Saint John, NB
(-24%), Sherbrooke, QC (-19%), Kingston, ON
(-17%), Regina, SK (-16%), Thunder Bay, ON
(-16%), Vancouver, BC (-13%), Windsor, ON
(-11%), Guelph, ON (-10%), and Ottawa, ON
(-10%) all had double digit drops.
Top Ten CMA Break-in Rates per 100,000
CMA

Rate

CMA

Rate

Trois-Rivieres, QC

875

Vancouver, BC

787

Regina, SK

856

Brantford, ON

775

Saskatoon, SK

856

St. John’s, NF

766

Winnipeg, MB

810

Abbotsford-Mission, BC

727

Kelowna, BC

796

Gatineau, QC

713

Drugs

Possession Offences
by Drug Type

In 2009 there were 97,666
drug-related crimes coming to
12% 13%
the attention of police. These
offences included possession,
t ra f f i ck i n g , p r o d u c t i o n o r
distribution.
75%
• possession offences
accounted for 64,889 of
Other drugs
these crimes - cannabis
Cannabis
(48,981); cocaine (7,543);
Cocaine
and other drugs (8,365).
Other drugs include
heroin, crystal meth, and ecstasy;

• the trafficking, production, Trafficking, Production &
Offences
and distribution offences Distribution
by Drug Type
totaled 32,777 - cannabis
(16,335); cocaine (9,923);
20%
and other drugs (6,519);
30%
Other drugs
Cannabis
50%
Cocaine
• British Columbia had the
highest drug related offence rates of all 10
provinces for cannabis, cocaine and other drugs;
Drug-related Crime Rates by Province
per 100,000 population
Province

Cannabis
rate

Cocaine
rate

Other
drugs rate

BC

368

112

64

NS

211

34

46

SK

184

39

40

QC

183

24

48

NB

169

35

53

AB

168

83

32

NF

164

34

41

ON

151

42

39

MB

137

60

29

PEI

88

22

42

• the territories continue to have some of the
highest drug-related crime rates in Canada.
Territory

Cannabis
rate

Cocaine
rate

Other
drugs rate

NWT

935

262

129

NU

783

16

28

YK

395

155

62

• overall, drug offences were down in 2009 (-6%)
from 2008, mainly due to a -21% decline in
cocaine offences.

PAGE 45

Volume 10 Issue 5 - September/October 2010

Motor Vehicle Theft

Top Ten CMA Vehicle Theft Rates per 100,000

In 2009 there were 108,172 motor vehicle thefts
reported to police, down (-15%) from 125,568 in
2008 and down -40% from decade ago.
• on average there were 296 vehicles stolen per
day in Canada in 2009;
• the motor vehicle theft rate was 321 per 100,000
population
• the most vehicles were reported stolen in Quebec
(27,517) while the Yukon had the fewest vehicles
stolen (130);

Police-Reported Motor Vehicle Thefts
Province/
Territory

Rate

Motor Vehicle
Thefts

Rate change
2008 to 2009

NU

593

191

+9%

NWT

536

233

-27%

MB

534

6,528

-28%

SK

517

5,326

-3%

AB

495

18,246

-20%

BC

440

19,614

-15%

YK

386

130

-25%

QC

351

27,517

-13%

ON

208

27,175

-13%

NB

172

1,288

0

NS

140

1,311

-17%

PEI

111

157

-8%

NF

90

456

+4%

CANADA

321

108,172

-15%

CMA

Rate

CMA

Rate

Brantford, ON

686

Saskatoon, SK

601

Kelowna, BC

659

Regina, SK

575

Winnipeg. MB

629

Vancouver, BC

464

Abbotsford-Mission, BC

622

Trois-Rivieres. QC

436

Edmonton, AB

601

Hamilton, ON

425

Police Assaults
In 2009 there were 9,822 assaults reported against
police officers, an average of about 27 per day. This
number is up slightly from 9,806 in 2008.
• over the last decade, from 1999 to 2009, assaults
against police officers have risen +23%.

WHAT’S NEW FOR POLICE IN
THE LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of it’s
most recent acquisitions which may be of interest to
police.

• eight CMAs reported declines in motor vehicle
thefts greater than -20%; Winnipeg, MB (-34%),
Abbotsford-Mission, BC (-33%), Peterborough,
ON (-33%), Calgary, AB (-28%), Saint John, NB
(-26%), Thunder Bay, ON (-23%), Halifax, NS
(-22%), Regina, SK (-22%).

75 e-learning activities: making online learning
interactive.
Ryan Watkins.
San Francisco : Pfeiffer, c2005.
LB 1044.87 W38 2005
The 2020 workplace: how innovative companies
attract, develop, and keep tomorrow's employees
today.
Jeanne C. Meister and Karie Willyerd.
New York : Harper Business, c2010.
HF 5549.5 R44 M45 2010

PAGE 46

Volume 10 Issue 5 - September/October 2010
Anger management for everyone: seven proven
ways to control anger and live a happier life.
Raymond Chip Tafrate, Howard Kassinove.
Atascadero, Calif. : Impact, c2009.
BF 575 A5 T35 2009

Five seconds at a time: how leaders can make the
impossible possible.
Denis Shackel with Tara Bradacs.
Toronto : HarperCollins Canada, c2010.
HD 38.2 S53 2010

Before you say yes: a guide to the pleasures and
pitfalls of volunteer boards.
Doreen Pendgracs ; foreword by Marian Hebb.
Toronto, Ont. : Dundurn Press, c2010.
HV 41 P463 2010

Googling security: how much does Google know
about you?
Greg Conti.
Upper Saddle River, NJ : Addison-Wesley, c2009.
QA 76.9 A25 C667 2009

Campus attacks: targeted violence affecting
institutions of higher education.
by Diana A. Drysdale, William Modzeleski, Andre B.
Simons.
Washington, D.C. : United States Secret Service :
United States Dept. of Education : Federal Bureau of
Investigation, 2010.
HV 6534 B53 D793 2010

Groundswell: winning in a world transformed by
social technologies.
Charlene Li, Josh Bernoff.
Boston, Mass. : Harvard Business Press, c2008.
HF 5415.1265 L48 2008

Effective leadership [sound recording]: how to be
a successful leader.
John Adair.
[London, Eng. : Macmillan Digital Audio, 2010]
Leaders play an essential role in every aspect of our
modern lives and good leadership is an art that is
highly prized. Effective leaders not only control,
appraise and analyse, they also encourage, improve
and inspire. In Effective Leadership John Adair,
Britain's foremost expert on leadership training,
shows how every manager can learn to lead.
Drawing on numerous examples of leadership in
action - commercial, historical, military - he
identifies the essential requirements for good
leadership and explains how you can enhance your
personality, knowledge and position to become the
best leader you can be.
BF 637 L4 A264 2010
Effective succession planning: ensuring leadership
continuity and building talent from within.
William J. Rothwell.
New York : AMACOM, c2010.
HD 57.7 R689 2010

The handbook for working with difficult groups:
how they are difficult, why they are difficult and
what you can do about it.
Sandy Schuman, editor.
San Francisco, CA : Jossey-Bass, c2010.
HD 42 H357 2010
How leaders speak: essential rules for engaging
and inspiring others.
by Jim Gray.
Toronto, Ont. : Dundurn Press, c2010.
HF 5718 G739 2010
How to succeed at an assessment centre:
essential preparation for psychometric tests,
group and role-play exercises, panel interviews
and presentations.
Harry Tolley, Robert Wood.
London ; Philadelphia, PA : Kogan Page, 2010.
HF 5549.5 E5 T65 2010
Managing workplace bullying: how to identify,
respond to and manage bullying behavior in the
workplace.
Aryanne Oade.
Basingstoke ; New York : Palgrave Macmillan, 2009.
HF 5549.5 E43 O33 2009

PAGE 47

Volume 10 Issue 5 - September/October 2010
Open leadership: how social technology can
transform the way you lead.
Charlene Li.
San Francisco : Jossey-Bass, c2010.
HD 57.7 L5 2010
Organizing for success.
Kenneth Zeigler.
New York : McGraw-Hill, c2010.
HD 69 T54 Z45 2010
The other kind of smart: simple ways to boost
your emotional intelligence for greater personal
effectiveness and success.
Harvey Deutschendorf.
New York : AMACOM/American Management
Association, c2009.
BF 576 D48 2009
Post-traumatic stress.
Stephen Regel, Stephen Joseph.
Oxford ; New York : Oxford University Press, 2010.
RC 552 P67 R44 2010
Preventing and treating bullying and
victimization.
edited by Eric M.
Vernberg, Bridget K. Biggs.
New York : Oxford University Press, 2010.
BF 637 B85 P74 2010
The reactor factor: how to handle difficult work
situations without going nuclear.
Marsha Petrie Sue.
Hoboken, N.J. : John Wiley & Sons, c2010.
HD 42 S837 2010
Switch: how to change things when change is
hard.
Chip Heath and Dan Heath.
New York : Broadway Books, 2010.
BF 637 C4 H43 2010
The theory and practice of online learning.
edited by Terry Anderson.
Edmonton : AU Press, c2008.
LB 1028.5 T496 2008

Think again: why good leaders make bad
decisions and how to keep it from happening to
you.
Sydney Finkelstein, Jo Whitehead, and Andrew
Campbell.
Boston, Mass. : Harvard Business Press, c2008.
HD 30.23 F555 2008
Unforgettable experiential activities: an Active
Training resource.
Mel Silberman.
San Francisco, CA : Pfeiffer, c2010.
HF 5549.5 T7 S553 2010
Virtual training basics
Cindy Huggett.
Alexandria, Va. : ASTD Press ; London : Eurospan
[distributor], 2010.
HF 5549.5 T7 H84 2010
When good men get angry.
Bill Perkins.
Carol Stream, Ill. : Tyndale House Publishers, c2009.
BF 575 A5 P49 2009
Win at work!: the everybody wins approach to
confliction resolution.
Diane Katz.
Hoboken, N.J. : Wiley, c2010.
HD 42 K38 2010

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PAGE 48

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