ISSUES
OF
INTEREST
VOLUME NO. 5

Juspce Institute
Of British Columbia

Written by John H. Post

03-19-81

4180 West 4th Avenue
Vancouver. B.C .

______

.___

V6B4J5Ait.

......

//

/

ISSUES OF IliTKKEST
(VOLUME II>. S)

(Written by John M. Post)
March 1982

TABLE OF CO'NTEliTS
PAGE

-AN ACr KKSPECTING YOUNG OFFKRDERS
AID> m KKPEAL 'DIE JUVENILE IELIRQUENTS Aer" •••....•..••...•......•

1

DISOBEYI.NG A IAVFUL <II.DER.

11

•••••• •••• •••••• • ••• ••• ••••••• •••••••••••

R. v. Clement [1981) 6 W.W.R. 735
Supreme Court of Canada
CALGARY'S ATTEMPT m a>RTR.OL PKOSTITDTION WITH A BY-LAW
R. v. Westendorp [1981) 6 W.W.R. 527
Alberta Provincial Court

........... 13

IS PLACING A BARD <B 'DIE mIGH OF 'DIE WHAN SITrING
NEXT TO YOU <B 'l'llK BUS, INDECENT ASSAULT? •••••••••••••••••••••••••
R. v. Burden [1982] 1 W.W.R. 193
British Columbia Court of Appeal

16

ICE ll>CKEY' - ASSAULT

17

••••••••••••••••••••• ••• • ••• •• ••• ••••• •••• ••• •

R v. Gray (1981) 6 W.W.R. 654
Saskatchewan Provincial Court

CREATING A DISTUUANCK
POLICE OFFICERS SUBJECTED m OBSCENE IAM;UAGK
The Queen v. Peters B. C. Court of Appeal
Unreported, CA810555, January 19, 1982

..................... 19

POSSESSION OF WEAPON DANGEROUS m 'DIE PUBLIC PEACE
CARRYING A O>HCEALED WEAPOR ••••••••••••••••••••••••••••••••••••••••
Regina v. Udy County Court of Vancouver
October 1981, Vancouver Registry CC810932

21

- ii -

PAGE

SUSPECT KIJRNING FROM SCENE OF lliVESTIGATION
REGARDIRG IMP.AIRED DllIVIRG • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

22

Regina v. Quist 61 C.C.C. (2d) 207
Saskatchewan Court of Appeal

CABE OR OOHTR.OL OF A ll>TOR VEHICLE
MKARililG OF SECTION 237(l)(a) C.C. •••••••••••••••••••••••••••••••••••
Ford v. The Queen Supreme Court of Canada
February 9, 1981 (Unreported)

23

ARMED ROBBERY AND USING A FIREARM IN 'JBE

CO}l{ISSION OF AN INDICTABLE OFFERCE •••••••••••••••••··••••••••••••••
McGuigan v. The Queen Supreme Court of Canada
March 2, 1982 (as yet unreported)

25

DARC;:KR.OUS .DllIVIRG- • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

28

Imlach v. R. [1982] 1 W.W.R. 765
Saskatchewan Queen's Bench

ADMISSIBILITY OF A sr.ATKKENT MADE BY A PERSON
WHO SIRCE llAS DIED • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • • • • • • • • •

29

Lucier v. The Queen Supreme Court of Canada
January 26, 1982 (as yet unreported)

AKE INFORMATIONS RELATED TO SEKACH VAllANTS A HATI'ER
OF PUBLIC RECORD AND OPEN FOR INSPECTION BY HKKBERS
OF DIE PIJBUC? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • •

31

The A.G. Of Nova Scotia v. Linden Macintyre
Supreme Court of Canada February 3,/82 (Not yet reported)

ADKISSIBILITY OF ADMISSION IN RESPECT TO A TRAFFIC VIOLATION
R. v. Sentell County Court of Westminster
2 November 1981, Registry No. 81-5951

........ 33

- 1 -

"'AR JCr IKSPEC'l'IBG '!OUHG OFFERDDS
ARD TO REPEAL THE JUVENILE DKLIBQUDTS AC:r-

This Act is currently going through the legislative process in the House of
Commons and is expected to pass third reading in April of this year.
The
effective date will be sometime in 1983 if the Act does not die on the vine
as its predecessors did.
Recently, the Solicitor General of Canada announced that a "young person"
will be all persons under the age of 18 years. This will be accomplished
by amending this proposed Act to create uniformity across Canada. If the
Act is proclaimed and the age is fixed as proposed, the provinces will, no
doubt, have to pour considerably more funds into juvenile justice.
This
may well amount to an increase of nearly 50% over what is spent now. For
some provinces (which have scarce juvenile services in place now) that
increase may well be more.
This writing is an attempt to relate the highlights of this proposed legis~
lation.
The preamble to the Act is a "Declaration of Principle", which declares
that a "young person" who commits an offence must not suffer the same consequences as an adult and is in need of protection.
Nontheless it is
recognized that such a person requires supervision, discipline, guidance,
and assistance.
In respect to the procedures to be followed with a young offender, preference 111.1st be given to measures other than judicial proceedings where that
is not "inconsistent with the protection of society". The declaration also
establishes and emphasizes certain rights a young person has in addition to
those included in the Bill of Rights.
For instance, young offenders have
the right to be heard in the processes leading to the decisions that affect
them; a right to the least possible interference with their freedom and a
right to be informed of their rights. The declaration ends by stating that
the Act shall be liberally construed to ensure that young persons will be
dealt with in accordance with these principles.
The proposed legislation defines and sets ground rules for 'alternative
measures' to judicial proceedings.
In other words, it creates and legalizes what is known today as the diversion system.

- 2 -

The ground rules say that alternative measures are appropriate where the
needs of the young person and the interest of society do not dictate otherwt.se.
However, no alternative measure shall be taken unless there is
adequate evidence to prosecute and the young person:
1.
2.
3.
4.

is informed what those measures are;
consents to participate;
does not deny his involvement in the offence; and
prefers to have the charges handled by the youth court.

In regards to not denying involvement in an of fence, the Act emphasizes
that the young person must confess or admit to have committed the offence
before he is eligible for alternate measures. It is obviously not intended
that he must make a clean breast of things as the young person's
"acceptance • • • of partial or total responsibility for a given act" will
not preclude him from being diverted from the court route. These confessions, however, are restricted to be used for the purpose for which they
were given, and th~y are, says the Act, inadmissible in evidence against
him whether this be in civil or criminal proceedings.
The proposed Young Offenders Act stipulates that a trial or adjudication
may be carried out before a justice in spite of the fact that alternate
measures had originally been taken in respect to the alleged offence.*

*

Proceeding with criminal charges against a person because he failed to
perform in accordance to some kind of 'diversion' contract resulting
from the commission of the alleged offence, has been zuled inappropriate by the Courts. The issue for proceeding in such circumstances is
the violation of the contract rather than the commission of the offence
and, in a sense, it is an abuse of the process of the Courts. Furthermore, diversion is not a due process of law but penalization for wrong
doing by the executive branch of government, a task inherently and
exclusively assigned to the judicial branch. The voluntariness on the
part of an 'accused' to become party to a diversion contract is no more
than an illusion say the judicial precedents. It is akin to asking a
person to co-operate while giving him an alternative that is more
adverse to his interest or risky than it is to accept what is held ou.t
to him. This, at least, has barred proceeding against an adult upon
breaching a diversion contract.

- 3 -

Except where the Young Off enders Act excludes them or where they are inconsistent with the Act, all provisions of the Criminal Code apply to processing a young person into the criminal justice system.
For instance, for
the purposes of arrests and pre-trial releases, a young person is dealt
with the same as an adult. However the Court or trial procedures, whether
or not the alleged offence is an indictable offence, shall be in accordance
to Part XXIV of the Criminal Code which describes the summary conviction
process.
The only exceptions are the limitation of action provision in
that Part and the Court's authority to levy costs for the issuing or
serving process.
The Criminal Code will be amended to create immunity from conviction of any
offence for a "child", which the Young Offenders Act defines as any person
under the age of twelve years. The new Act also compels the provinces to
appoint a "Provincial Director" (which can also be a group of persons) who
actually, if one takes the aggregate of all the Act assigns to this entity,
is the administrator of the young offenders justice system in the
province.
All "Youth Workers' " activities and duties , the reviews, predisposition reports, the supervision of disposition, are all within this
directorate's jurisdiction.
The current provisions that 'juveniles' are not to be detained in places
other than those specially designated for that purpose, are proposed for
the new Act as well.
However, every police officer can relate incidents
where this provision was totally impractical, particularly when a young and
boisterous youth· needed to be subdued.
It is proposed that the provision
of custody in designated places only, does not apply "in respect of the
arrest of a young person or in respect of any temporary restraint of a
young person in the hands of a peace officer after the arrest of the young
person but prior to his detention in custody".
The wording is somewhat puzzling but i t would appear that upon an arrest
and before transport to a designated place it is not wrong to hold the
young person in holding cells rather than "baby-sit" him.
This particularly, the section seems to say, where temporary restraint is required.
One could go on to guess in what situations this all would apply, but it is
important to emphasize that whatever is done, the exemption must be in tune
with the provisions surrounding it. These say, that unless a Court otherwise directs, no detention of young persons in places other than those
designated; and no arrested young person is to be detained in 'any part of
a place' where adults charged with or convicted of an offence are held in
custody.
The proposed Act also provides that the provincial governments may appoint
"authorities for detention".
In provinces where such appointments are
made, no one may detain a young person prior to his appearance before a
Court, unless they have the specific consent from that authority to do so.
A violation of this provision constitutes an offence.

- 4 Whenever this proposed Act refers to a judicial process, it speaks of a
"Youth Court" and defines a "Youth Court Judge" as a person appointed to be
a judge of a Youth Court. Currently our Provincial Court Judges exchange
fqnctions and all can sit as Juvenile Court Judges. This may no longer be
the case.
Among others, in the provisions dealing with the 'Interim
Judicial Releases ' and 'consent to detain a young person other than in a
designated place', the ACt specifically gives that authority to the members
of the judiciary appointed as Youth Court Judges and states that other
judges may only perform these functions i f a 'Youth Court Judge' is not
reasonably available. As a matter of fact where a young person is ordered
to be detained by a Judge other than a Youth Court Judge, a Youth Court
Judge may, upon application, review and reverse the other Judge's
decision.
In cases where the alleged offence is one of the well known
serious ones mentioned in section 457.7 of the Crimina1 Code, where only a
Justice of a Court of Superior Criminal jurisdiction can deal with the
release of a person held for trial, a Youth Court Judge and no other, may
deal with consideration for release where the accused is a 'young person';
and only a Judge of the Court of Appeal can review the decision of the
Youth Court Judge in respect to pre-trial custody. There are also indications that the law makers intend the Youth Court to be one of senior
level.
This not only on account of these provisions but also because it
provides in regards to various issues: "In any province where the youth
court is a superior court • • • ". Another unique authority of the "Youth
Court" is that the Judges {with the concurrence of a majority of its judges
in a province) may establish 'rules of court', which when gazetted
{Federally and Provincially) are effective and binding on all the Youth
Court Judges in the province. The Rules, of course may not be inconsistent
with law, but may regulate duties of officers of the youth court, practices
and procedures in the court and prescribe forms being used.
The Parents:
When a young person is arrested and detained pending a court appearance,
the "officer in charge" must as soon as possible notify the parents as to
the reason and place of detention. Note that this does not say "as soon as
practicable".
It means at the first opportunity; it takes priority over
everything except emergent situations where it is physically impossible to
do so. That is, of course , if this term will receive the same interpretation as it does with other statutes.
In view of the fact that the Criminal Code provisions apply to this Act,
Part XIV of the Code applies in regards to arrests and releases from
custody by police. The Act imposes duties on persons who "issue" a summons
or appearance notice in respect to a young person, or on the "officer in
charge" when a young person is released on a promise to appear or recognizance. They are compelled to notify a parent of that service of process as
soon as possible.
Where no parent can be located, such notice must be
given to an adult relative or i f there is none to be found to any adult.
The conditions of a relative or other adult being notified is that the
person mu.st be known by the youth and "likely to assist him".
If none of
these can be located a Youth Court Judge must appoint someone.

- 5 -

Needless to say, anyone can foresee problems with the obligation to give
notice to someone "as soon as possible". In certain circumstances it will
be impossible.
Therefore, the law makers propose that lack of giving
notice "does not affect proceedings under this Act".
When such a case
comes before the Youth Court, it may be adjourned until notice is given to
a person the Court directs or the notice may be dispensed with.
A parent who receives notice and fails to appear in Court with the "Young
Person", may be ordered to attend.
The violation of such a Court Order
amounts to contempt of court and may be dealt with summarily. In the meantime whether or not the parent is held to be in contempt, the Youth Court
Judge may issue a warrant for the arrest of the parent who was ordered but
fails to attend or fails to remain in attendance.
Right to Counsel
Besides the fundamental right of anyone to retain and instruct counsel
without delay when detained, the Act emphasizes this right and adds to it.
In the declaration of principles or preamble to the Act, it states specifically that a young person has the right, in every instance where they have
rights or freedoms that may be affected by this proposed Act, to be
informed what those rights and freedoms are.
The Act creates the U.S.
'Miranda Principle' in respect to a young person and stipulates that upon
arrest he must forthwith be advised of his right to counsel; so must his
parents when notice is served on them; the Youth Court Judge must inform
the young person of all his rights when he appears without counsel; and
every appearance notice, summons, warrant, promise to appear, recognizance
must include the statement that the young person has a right to counsel.
The Act also provides that a young person who is not represented by Counsel
may, upon the permission of the Court, be assisted by an adult person whom
the Court considers suitable.
Transfer to Ordinary Court:
Where the information alleges that the young person committed an indictable
offence (other than the 'absolute jurisdiction' ones mentioned in section
483 C.C.) after he reached the age of fourteen years, the Youth Court may
order that he must be proceeded against in an ordinary Court like an
adult. This may only be done where the Attorney General or his agent, the
young person or his counsel apply for such a transfer and where it is in
the interest of the community and the accused young person.
The proposed Act also makes it possible for the transfer of jurisdiction
from one province to another, by a procedure very much like the one
prescribed in the Criminal Code for adults.
The Attorney General of the
province where the offence was committed must consent and the young person
must "consent to plead guilty and plead guilty".

- 6 -

Dispositions:
Where a court finds a young person guilty of an offence it may, after
giving reason:
grant an absolute discharge;
impose (having regards to the young person's means to pay) a fine, not
exceeding $1,000;
order compensation to be paid to the victim of the of fence, including
that for income lost or special damages for injuries;
order to make restitution;
order personal services to be performed to compensate the victim;
order community work to be done; (240 hours maximum);
make orders of prohibition, seizure or forfeiture;
place the young person on probation for a maximum period of two years
or
commit the young person to custody for up to two years.

The Act then goes on to list all the considerations the Courts must give to
the dispositions, such as interference with his education or normal hours
of work, etc.
The Act also provides for special provincial work programs in which young
persons can work and earn credits towards the fines they are to pay.
For the purpose of reviewing his progress, a young person under sentence,
particularly probation, may be ordered to appear before the Youth Court
Judge. A warrant may be issued for this purpose, although he is compelled
to appear on a verbal notice.
Non-custodial dispositions will also be transferable.
If a young person
under sentence, becomes the resident of another territorial district or
province, the Attorney General may transfer the disposition to that district or province.
This can also be done upon application of the young
person or his parents. However, the Youth Court that issued the disposition shall retain exclusive jurisdiction for all purposes of the Act wtless
it, with the consent of the Attorney General, waives that jurisdiction.
Process issued in respect to the young person may be executed anywhere in
Canada without any formalities other than the customary courteous ones.
When a young person is sentenced to custody for a period in excess of one
year, he must be brought before the court at the anniversary of that
disposition for the purpose of review.
It may also be recommended to the
Court that the young person be released from custody and be placed on
probation instead.
Such recommendation compels the Court to review the
disposition within 10 days.

•'

- 7 -

When a young person under sentence has mended his ways; where the grounds
for the sentence have changed materially; or where new programs have become
available since the sentence was imposed, he may be brought back to Court
for disposition review six months after the disposition was made.
For
reasons the Youth Court deems appropriate, he can be brought back for
review of sentence any time.
The proposed Act provides for Review Boards to be appointed by the provincial governments. Where 'such Boards are in place, the review of various
categories of dispositions may be done by them.
Needless to say, the Act also provides for reviews of dispositions where
the young person refuses or fails to live up to the conditions imposed on
him.
In such case the Crown must proceed similarly to the "breach of probation" provision in the Criminal Code.
An information must be sworn
alleging the "failing or refusing" of complying with the disposition.
This provision includes the offence of escaping or attempting to escape
from lawful custody where the young person was committed to custody by the
Youth Court upon being found guilty. The offence of escape prior to disposition must apparently be preferred under the provisions of the Criminal
Code.
For the purposes of attending schools, employment or participation in
special programs which may benefit the young person, releases from custody
are provided for.
Absenteeism is also possible (with or without escort)
for compassionate, humanitarian or rehabilitative purposes.
In regards to conviction records of young persons, the Act creates an
offence for any government department, any Crown corporation, the Canadian
Forces or in regard to work undertaken or business within the legislative
authority of the Parliament 0£ Canada, to inquire for the purpose of application for employment about charges against the young person.
Protection of Privacy:
The Act prohibits the publication by any means of a report of offences
committed or alleged to have been committed by a young person, or of proceedings or dispositions in relation thereto which may reveal the identity
of or contains information that may lead to the identity of a young
person. This, whether that young person is the one accused of or the one
aggrieved by the offence. Contravention constitutes a hybrid offence over
which the Provincial Court has absolute jurisdiction.

- 8 -

It is apparently intended that Youth Courts are open to the public.
The
Act provides authority for the Judge to exclude all the public from the
C<?urtroom including any person who is not required in the conduct of the
proceedings.
The prerequisites to such an exclusion are an opinion that
any evidence is imperious or prejudicial to the accused young person, or a
young person who is a witness or person aggrieved by the alleged offence.
The Youth Court records may be made available, before or after completion
of the proceedings to the young person to whom it relates, the Attorney
General, Parole Boards, any peace officer for investigative purposes where
there are reasonable and probable grounds to believe the young person has
committed an offence; any court for sentencing that young person after he
has become an adult, any correctional institute where he is held after
becoming an adult, any person for granting security clearance required by
the Federal or Provincial governments for the purpose of employment.
Police Records:
Records of convictions of young persons may be kept in designated central
depositories of criminal records or records for identification of
criminals.
Any police force may keep records of offences allegedly committed by a
young person, provided that force did investigate or participate in the
investigation of the offence.
These records may be made available for
similar reasons to the same persons mentioned above who have access to the
Court records.
Photographing and Fingerprinting
The Identification of Criminals Act will apply to young persons, meaning
that those charged with an indictable offence may be photographed and
fingerprinted.
The proposed Act stipulates that outside these provisions,
a young P_erson charged with an offence may not be so processed.
However, any photographs and fingerprints must be destroyed 'forthwith' at
the end of the period during which an appeal can be taken by the Crown in
respect to an acquittal or upon dismissal (not acquittal), withdrawing
charges, or where subsequent to staying the charge, the proceedings are not
reopened after three months.
When the young person is convicted, his photograph and prints may be kept
by the Court i f they were received in evidence, filed with the criminal
records depository and may be kept by the police force who investigated the
of fence of which he was convicted.

- 9 -

The proposed Act empowers the provincial cabinets to designate a person or
group of persons to authorize the fingerprinting and photographing of young
persons. In a province where such an appointment has been made, no young
person may be photographed and fingerprinted without such authorization.
When a young person has not been charged with an offence for two years
after the completion of his last sentence in respect to a summary
conviction offence or for a five year period after the completion of a
sentence for an indictable offence, all records, photographs (including
negatives) and fingerprint s shall be destroyed.
This is also the case
where he receives a pardon as an adult. ·
The Act provides that where records are not destroyed as required they
cannot serve any purpose, for instance, to prove that he has a record.
However, if in such case a request is made on behalf of or by the young
person that his records be destroyed, failure or refusal to do so
constitutes an offence. It should be noted that these provisions regarding
destruction of records will (when the Act becomes effective) also apply to
all the records accumulated under the Juvenile Delinquents Act.
Furthermore, making these records available to those who are not entitled
to them, or giving out information they contain, is guilty of a hybrid
offence.
Evidence
The Young Offenders Act stipulates that statements made by a young person
to a person in authority are not admissible in evidence unless it was made
abundantly clear to the young person, in language he can understand, that
he is not obliged to make the statement and that the statement in fact was
made voluntary.
Other prerequisites to admissibility in evidence are that the young person
must understand that the statement may be adduced in evidence; that he has
a right to consult counsel, a parent or any adult person chosen by him;
and that counsel or the adult person may be present when he makes the
statement.
The Act creates an exemption for these prerequisites where a young person
volunteered a statement prior to an opportunity for the person in authority
to make him aware of all his rights.
Where a young person waives any of these rights, the waiver shall be in
writing and signed by him.
The waiver must clearly state that the young
person was aware of all these rights.

- 10 -

The Act also provides authority for the Youth Court Judge to exclude statements made to persons who are not persons in authority. For this the young
p~rson must satisfy the Judge that the statement was given under duress
imposed by any person.
The age of a young person may be proved by testimony of the parents, birth
or baptismal certificates, or any other evidence the Court deems reliable.
In the absence of any such evidence, the Court may infer the age of the
young person from his appearance.
Where, in any proceedings under this Act, a young person or a child (under
12 years of age) is a witness, no testimony shall be received unless the
Judge instructs him of the duty to tell the truth. The Act stipulates that
the evidence of such person then shall be taken under "solemn affirmation"
only, which shall have the same effect as evidence given under oath. And,
of course, the Act provides that no case may be decided on the evidence of
a person under the age of 12 alone, unless it is corroborated by some other
material evidence.
At the outset of this synopsis, comment was made about the inevitable
increased cost of the juvenile justice system when and if this Young Offenders Act becomes effective. Perhaps to make this Act more palatable to the
provinces which have the exclusive jurisdiction to administer justice, the
Parliament proposes in the Act that the Federal Cabinet, via the Solicitor
General, may provide for payments to the provinces for "costs incurred for
care of and services provided to young persons dealt with under thi s Act".

*****

- 11 -

DISOBEYIRG A LAWFUL OKDER.
R; v. Clement [1981) 6 W.W.R. 735
Supreme Court of Canada
On page 7 of Volume 3 of this publication, the views of the Manitoba Court
of Appeal were reviewed and explained as they related to the allegation
that Clement disobeyed an order by a court of superior jurisdiction. The
order was by authority of a Federal Statute, and was in regards to a civil
matter.
Clement was charged under section 116(1) of the Criminal Code which creates
an indictable offence for anyone who, "without lawful excuse, disobeys a
lawful order made by a court of justice or by a person or body of persons
authorized by any Act to make or give the order, other than an order for
the payment of money".
However, the section is inoperative where some
penalty or punishment or other mode of proceedings is expressly provided by
law.
A Court of Superior Jurisdiction has, at common law, the inherent right to
remedy disobedience of its orders by means of contempt procedures.
The
Manitoba Court of Appeal was of the opinion that these procedures are so
entrenched in common law that they could be considered, in respect to the
conditions under section 116(1) C.C., as "another mode of proceeding
expressly provided by law". The information was quashed as the section was
not found applicable. As a matter of fact, the Manitoba precedent rendered
the section useless.
The Crown successfully appealed the decision to the Supreme Court of Canada
which, in a unanimous judgment, disagreed with the Manitoba court.
The Supreme Court of Canada saw no reason why the words "lawful order"
should receive a restricted interpretation.
If a Federal or Provincial
statute provides that a Court, person or body of persons may make orders,
then, whether the matter be criminal, civil or other, a disobeyance of such
an order may constitute an offence under section 116(1) c.c.
Then the Supreme Court of Canada dealt with the meaning of the words: "some
penalty or punishment or other mode of proceeding is expressly provided".
Something that is inherent, like the right of courts to cite for contempt,
is by its nature not "express"; "express" is the opposite of implied;
"express" means to state explicitly, held the Court.

- 12 -

"By law" the Court said, must, considering the way the section is worded,
be given its natural meaning: "by statute law".

Our highest Court held:
• • I would construe the subsection as being
available as the basis for a charge for disobedience of a lawful court order whenever statute law
(including regulations) does not provide a
punishment or penalty or other mode of proceeding, and not otherwise".

Crown's Appeal Allowed
Clement ordered to stand trial.
Note:
The Supreme Court of Canada stressed that its findings do in no way interfere with the inherent right of the Courts to enforce its own processes.

Comment:
Although this seems to settle the question of whether section
116( 1) C.C. was available in any circumstances, one important question
seems left unanswered. Said the Court:
"The expression 'by law' might, in these circumstances, be read as a reference to the criminal
law only and finally, might, if limited to
statute law, refer to either federal statutes or
provincial statutes or both".
The Court order binding on Clement, was matrimonial and civil in nature and
issued by the provisions of a federal statute. Therefore, the issue if the
words "by law" in section 116(1) C.C. include provincial statutes, was not
before the Court. It was therefore, if not improper, unnecessary to determine that.

* ****

- 13 -

CA.I.GARY'S ATTEMPT TO COHTR.OL PROSTITUTION WITH A BY-LAW

R. v. Westendorp [1981] 6 W.W.R. 527
Alberta Provincial Court
A Ullnicipal government is not a senior, but a subordinate government. The
British North America Act confers the jurisdiction over municipal affairs
to the provincial government, which in turn have delegated self governing
powers to incorporated municipalities. Therefore, laws made by these delegated powers are called by-laws, which are ultra vi res the municipal
government unless there is specific enabling legislation which may be found
in various provincial statutes and particularly in 'Municipal' or like
titled Acts.
The Alberta government has, by means of its Highway Traffic Act and the
Municipal Government Act, enabled the Alberta incorporated municipalities
to create by-laws to control and manage public highways and roads. Apparently experiencing a problem with '"the ladies of the night'" plying their
aged trade on city streets, the Calgary city fathers assumed to have jurisdiction to control these activities by means of a by-law.
A very condensed version of the Calgary City Council resolve is as follows:
Whereas prostitutes
locate themselves on our streets;
approach or are approached by others for the
purpose of prostitution;
often collect in groups; and/or
annoy and embarrass the public and
interfere with other persons lawfully
using the streets;
AND

whereas it is expedient to provide that the
streets of the City shall not be used for
that purpose, it shall be an offence for
any person to remain or approach anyone on
a City street in respect to the services of
a prostitute.
The fines provided range from $100 to $500 with a maximum imprisonment of
six months in default.

- 14 -

A Ms. Westendorp demonstrated a superb ability to sell sexual services when
she approached a City of Calgary detective. As a result she was charged
under the by-law. In her defence she apparently did not deny belonging to
"the profession" or any of the circumstances. However, she questioned the
propriety of the by-law.
The Provincial Court Judge inferred from the "whereases" included in the
by-law that City Council was gravely concerned about the activities of
prostitutes on the city streets.
As a matter of fact, the words of the
by-law identify a problem of such magnitude that one hardly expects a bylaw to be remedial. Gathering in groups, alarming, embarrassing, obstructing and generally interfering with others amount to offences under the
Criminal Code.
The Judge also questioned if City Council was possibly trying to revive the
vagrancy legislation under the Criminal Code which was repealed in 1972.
That repeal effectively provided that prostitutes, safe for conduct amounting to soliciting, can lawfully use the streets.
The Alberta Municipal
Government Act states that the municipal councils may regulate the use of
the streets only where it is not contrary to any other law; and the Highway
Traffic Act only enables municipal councils to classify vehicles and pedestrians for all purposes involving the use of City streets. The Court held
that this did not mean that municipal governments were thereby authorized
"to penalize and restrict the movements of any group or class of persons it
so desired, be they prostitutes, professors, catholics, Liberals or otherwise".
The Court reminded itself that, when considering validity of legisiation,
it must presume that the legislative body intended to confine itself to its
own sphere and does not desire its laws to be operated or enforced beyond
that which it has authority to regulate.
If, however, the real nature and
character of this by-law goes beyond council's jurisdiction, that is "the
control of the streets", and is in fact "to abate nuisance and public
inconvenience", which is not its jurisdiction, then the by-law is ultra
vires an Alberta municipal government.
(Presumably this would be the case
in all provinces as a Municipal Act enabling by-laws to abate nuisances and
public inconveniences would probably constitute a trespass on Federal
legislative jurisdiction).
The Court also reviewed the history of the prostitute problem, in determining the "pith and substance" of the by-law.
The trial judge reviewed
that ever since the decision by the Supreme Court of Canada in the now
famous or infamous Huttl case, there has been a publicized "warfare"

1 Reason for judgement reported in Volume 2 of the Western Weekly Reports,
1978 series, page 247.

- 15 -

between the Police and the prostitutes practicing on the City streets and
other public places.
Previously by-laws have been passed which are
seemingly aimed to curtail the activities of prostitutes, and to substitute
for what was considered lost by the Hutt decision. Precedents clearly show
where a by-law which, on the surface seems to regulate or prohibit something within municipal council's jurisdiction but does as a fringe benefit
and is in reality aimed to rectify something outside that jurisdiction,
never withstood judicial scrutiny. Or, as it has been expressed by Chief
Justice Laskin!, where "the heart of a statute may be its secondary impact
rather than its primary command".
In essence, the trial judge said that the by-law and its enabling legislation were inconsistent in their remedial intent, and that the solutions to
problems created by "motor cycle gangs, rock concerts, sport events, the
Calgary Stampede, noisy parties, beer parlors at closing time, prostitutes
on the streets, etc.", mus t be remedied by Federal legislation. Said the
Court:
"I can reach no other conclusion than that the
pith and substance or the real nature and character of the by-law is not •
'clearly' the
control of the streets. It is simply this: it is
to
prohibit
prostitutes
from working
the
streets."
The by-law was held to be ultra
vires the powers of the City and the
provincial legislature.
Consequently Ms. Westendorp was acquitted.

NOTE:

THIS DECISION BY 'IBE ALBERTA PROVINCIAL OOURT WAS REVERSED BY A
UNABIMOUS .JUDGMENT BY 'l'HE ALBERTA SUPREME COURT, APPELLATE
DIVISION, DURING 'IBE IAST WEEK OF FEBRUARY.

WE HAVE SENT AWAY IDR 'IBE REASONS FOR JUDGMENT BY "l'llE OOURT OF
APPEAL AND WILL INFORM YOU OF ITS OONTENT IN <IJR NEXT ISSUE.
APPARENTLY, 'lBE OOURT OF APPEAL HELD 'DIAT "l'llE BY-LAW, AS IT WAS
WORDED, WAS IRTRA VIRES THE CALGARY OOUNCIL.

THERE

IS A LllELIHOOD THAT A DECISION OF THIS KIND VILL BE
FURTHER APPEALED m 'DIE SUPREME OOURT OF CANADA.
IN VIEW OF "l'llE
UNAIUHITY OF 'DIE OOURT OF APPEAL, LEAVE TO APPEAL FURTHER BAS TO
BE GRANTED BY OOR filGHEST OOURT.

1 Laskin's Constitution Law, 4th Ed. (1973)

- 16 -

IS PLACING A BAND ON 'DIE 'IBIGH OF
THE WOMAN SITTING llEXT TO mu m
THE BUS, IRDECENT ASSAULT?

R. v. Burden [1982 ) 1 W.W.R. 193
British Columbia Court of Appeal
The accused got on a very scarcely occupied bus and while nearly all the
double seats were vacant he went and sat next to a lady. After staring at
her for awhile he placed his hand on her thigh for about 10 seconds.
The accused was charged with indecent assault but was acquitted. The trial
judge said that although the act was stupid and fresh, it was not
indecent.
Furthermore the Judge said (referring to the definition of
assault) that force had to be applied.
In this case he found that 100re
than mere touching is required to commit assault. Finding that no strength
or power was asserted there was insufficient force applied "to qualify for
the use of that word".
The Court of Appeal disagreed and concluded that "the law cannot draw the
line between different degrees of violence and, therefore, totally prohibits the first and lowest stages of it; every man being sacred, and no
other having a right to meddle with it in any, the slightest manner" .1
Placing his hand intentionally on the woman's thigh was an application of
force within the meaning of section 244(a) C.C. Obviously concluding that
the assault was not indecent the
Accused was convicted of common assault
and the Crown's appeal was upheld

* * * * *

l Taschereau's Criminal Code (1893) p. 262.

- 17 -

ICE HOCKEY - ASSAULT

R v. Gray [1981] 6 w.w.R. 654
Saskatchewan Provincial Court

The accused jumped from the bench over the boards to join the members of
his ice hockey club in one of those fine displays of Canadian sportsmanship where every player feels "compelled to grab an opponent and generally
tug his sweater and jostle him".
One player of the opposing team stood off to one side and stayed out of the
melee.
The accused reached the "sports scene" by a detour.
He first
skated at full speed in a straight line from where he got onto the ice to
the lone player. The accused struck the player with full force on the side
of the face and neck.
The victim who had not seen the accused approach,
hit the ice heavily and swallowed his tongue.
This and a concussion
rendered him unconscious and resulted in hospitalization.
The accused was charged with assault occasioning bodily harm.
He claimed
in his defence that he had the victim's consent to apply force.
Each
hockey player knows that ice hockey is fast and vigorous with bodily
contact.
When a player gets on the ice to compete and play the game, he
permits the bodily contact.
The Court disagreed with the accused and held that, regardless of the
implied consent, there are l egal limitations to it. Besides, the game had
stopped at the time of the assault and the accused was by its rules, not
even supposed to be on the ice.
The accused's application of force was
clearly intentional and no player consents to this kind of force being
applied to him.
The accused also claimed that he did not intend to cause bodily harm to the
player.
This, the Court also rejected.
With the amount of force the
accused applied, he ought to have known and expect that injuries could
result.
Finally, the accused submitted that his conduct did not come within the
purview of the Court as it should not be involved in considering activities
on the ice during a hockey game.
He claimed that he was subject to the

- 18 -

policies and rules of the league and its penalties.
sufficient to deal with any violation.

He thought them to be

The Court responded:
"His view is undoubtedly acceptable when his
activities are within those usually condoned by
participants and officials of the sport involved,
but his view cannot be extended to activities
which, as here, are blatant and excessive. • • •
the hockey arena is not a sanctuary for unbridled
violence".
Accused convicted

*****

- 19 -

CKKATIBG A DISTURBANCE
POLICE OFFICERS SUBJECTED TO OBSCENE LAliGUAGE
The Queen v. Peters, B. C. Court of Appeal
Unreported, CA810555, January 19, 1982
The accused, along with another person, were the cause of an occurrence
which apparently is of no significance as it is not explained.
However,
they were on a public street.
Two policemen attended and instructed the
two persons to leave the scene in a certain direction.
The accused
answered in a loud tone of voice, "Yes, sir, fucking pig sir". He did this
on three occasions and left in the opposite direction as he was told to
go.
A repeat of the order caused the accused to repeat his response. He
was arrested for creating a disturbance by using obscene language (section
17l(l)(a)(i) Criminal Code).
Restaurants were nearby the scene but there was no evidence that anyone
other than the officers heard the accused's shouted profanities. Even the
officers failed to say how, being subjected to the accused's verbal abuse,
affected them.
This, of course, raised the age-old question if peace officers (for the
purpose of this section) can be disturbed.
Furthermore, the fact that
"this section and its antecedents have received two judicial interpretations, both of which have been adopted and followed by various Courts", was
finally raised in this, B. C.'s highest Court.
These two views are as follows:
"All that the section requires is that one of the
specificied acts,
i.e., fighting,
screaming,
etc., be done in circumstances where it disturbed
a person or persons, or where such disturbance
might reasonably be inferred"

OR
"That it is necessary that the specified acts,
i.e., fighting, screaming, etc., must cause a
secondary activity and that
such secondary
activity itself must be in the nature of a
disturbance".

- 20 -

The B. C. Court of Appeal held that the correct interpretation of section
171 C.C. falls somewhere between these two opposing views.
When a person does any one of the things mentioned in the section, the act
by itself, may or may not cause a disturbance.
Needless to say if the
reactionary activity by others causes a disturbance a conviction for
causing it must result.
Where the conduct has disturbed a citizen, a
disturbance may also have been created.
The Court reiterated that "mere speaking in a loud voice of obscenities to
police officers without more" does not constitute a disturbance.
Disturbance, in the sense of disorderly conduct, means that it must interrupt the peace and tranquility to which every community and citizen has a
right.
Conviction was set aside
Acquittal entered.

Comment:
The questions raised in this case have been in need of answers for some
time now and to see them posed in the reasons for judgment was like seeing
a parcel which, because of its contours, is expected to contain something
you really wanted. However, the circumstances in this case did not lend
themselves for the Court to give a full answer and to finally give some
guidelines.
Reading the case and its conclusions was somewhat of a
disappointment and the parcel simply did not hold the much desired item.

*****

- 21 -

POSSESSION OF WEAPON DANGEROUS TO DIE PUBLIC PEACE
CAKRYIRG A CONCEALKD WEAPON

Regina v. Udy, County Court of Vancouver
October 1981, Vancouver Registry CC810932
The accused was confronted by police.
His right hand was in his jacket
pocket. The accused had also positioned himself in relation to one of the
constables so that his right side was out of the constable's view.
The
second constable observed the accused's maneuvering and, upon closer examination, saw an unsheathed hunting knife in the pocket. When asked why he
was hiding the knife the accused answered, "so you wouldn't see it".
At his trial for possession of a dangerous weapon and concealing a weapon,
the accused testified that he had the knife for camping purposes and marked
the trees in the bush so he could find his way back again.
In respect to possession of a dangerous weapon, the accused was acquitted.
The Court found that he had the knife for defensive rather than offensive
purposes.
It was observed however, that other Courts have held that
carrying a weapon for defensive purposes may, in certain circumstances, be
dangerous to the public peace.
In this case, the Court had reasonable
doubt that anything dangerous to the public peace was contemplated by the
accused.
The accused was convicted, however, of concealing a weapon. There was no
doubt in the Judge's mind that the weapon was concealed by the hand in the
pocket and that the maneuvering was to avoid discovery of the knife.

* * * * *

- 22 -

SUSPECT KIJHBING :ntoH SCENE OF DVESTIGATION
REGARDING IMPAIKED DIUVIBG
!ligina v. Quist 61 c.c.c. (2d) 207
Saskatchewan Court of Appeal

The accused had driven over a sidewalk when leaving the parking lot of a
beer parlor. An officer blocked the accused's car with his police van and
asked the accused to come and sit in his van. From a strong smell and all
appearances, the officer formed the opinion that the accused was impaired.
Just as he was to make his demand to be accompanied and samples of breath
to be given, the accused "bolted" and took off out of the van and down some
railway tracks. By this time, only two questions were asked of the accused
and he only answered the first one. He was asked to produce his driver's
licence which the accused claimed he did not have on him, and how much he
had to drink.
Police outran the accused and charged him with obstructing a police officer
in the performance of his duty. The trial court judge held that there was
no obligation on the part of the accused to remain in the presence of the
officer and that he was not obliged to answer the questions put to him.
The investigation was simply not completed when the accused chose to leave
and no demand had been made of him at this time.
The accused was
acquitted.
The issue ended up before the Saskatchewan Court of Appeal.
It observed
that if the findings of the trial judge were correct "then any person
stopped by a police officer attempting to enforce s. 235 could completely
frustrate enforcement of the section by simply driving off or running
away".
The Court of Appeal held that the accused should have remained in the
presence of the constable until he had completed the duty the law imposed
on him.
If that was not so, it would mean that it is up to a suspected
impaired driver how much time the officer is allowed to decide if there are
reasonable and probable grounds that he committed the offence.
In addition, the Court observed that the accused could not be charged with
the lesser offence of refusing to give a sample as no demand had been made.
There was an obstruction, the officer was in the lawful execution of his
duty and the accused obstructed the officer wilfully.

The accused was convicted.

* * * * *

- 23 -

CARE Oil OOHTROL OF A IETOR. VEHICLE
MEANIBG OF SECTION 237(l)(a) C.C.

Ford v. The Queen Supreme Court of Canada
February 9, 1981 (Unreported)

The accused attended a party that was held in a field.
All participants
arrived in cars.
The accused drove his own car there but when he started
to become intoxicated he arranged with a girl that she would drive him
home.
The weather was cold and the party participants went from time to
time to their cars to get warm.
The accused also went to his car and started it up to gain the benefit of
the car heater while he sat in the seat "ordinarily occupied by the
driver".
A police officer on regular patrol spotted the cars in the field and went
to see what was going on.
He found the accused in his car as described
above and made a demand for a breath sample.
As a consequence of the
breath analyses, the accused was charged with "over .08%" but was
acquitted.
The issue in this case is the meaning of the definition of "care or
control" of a 100tor vehicle in section 237 (1) of the Criminal Code. This
section provides that one shall be deemed to have care or control of a
motor vehicle if he occupies the seat ordinarily occupied by the driver.
However, this presumption does not apply when that person "establishes that
he did not 100unt the vehicle for the purpose of setting it in 100tion".
The girl testified as to the arrangement to drive the accused's car and the
accused told that his purpose for mounting the car was to get warm and not
to drive. This, the trial judge had held, was a good defence to having the
care or control of the motor vehicle. The Crown appealed this decision.
Firstly, the Supreme Court of Canada held that "establishing" that he did
not occupy the driver's seat for the purpose of driving the car, is not a
defence to the offence of "over.08%" but merely a rebuttal to the presumption that he did not have the care or control of the vehicle.
Secondly, the Court held that proving "care or control" can be done by
means other than what is provided by section 237(l)(a) C.C.
In other
words, the section is not exhaustive; and care or control can be shown by
evidence which does not include proof of an intention to drive.
When a
person establishes that he 100unted the car for purposes other than driving
it, he simply shifts the burden of proof back to the Crown to prove the
essential ingredient of care or control.

- 24 -

Said the Court:
"I cannot see that they (the words 'unless
he establishes that he did not enter or
mount the vehicle for the purpose of
setting it in motion') purport to create or
define a defence to the charge or alter the
nature of the offence created by s. 236 so
as to import 'an intention to drive' as an
essential element which the Crown is
required to prove in order to secure a
conviction under s. 236".
Quoting from other reasons for judgments which express similar views, the
Court agreed that section 237(l)(a) C.C. does not apply unless a person
occupies the driver's seat and is merely a statutory presumption of "care
or control".
The section did not change the law in existance when it
became effective.
The Crown can rely on other evidence to prove care or
control.
However, i f the only proof the Crown adduces is the fact that the accused
occupied the driver's seat to show care or control, then establishing
intention for occupying that seat for purposes other than driving will
result in depriving the Crown of an essential ingredient to the charge of
"care or control" while having a blood alcohol content in excess of .08%.
The accused must prove that lack of intention on the "balance of probabilities". Simply creating a reasonable doubt that he entered for the purpose
of driving is not enough to negate the statutory presumption.
There is,
the court held, "a wide difference between rebutting a statutory presumption and establishing innocence".
A passage of this reason for judgment explains the purpose for creating
offences of care or control of a vehicle while incapable to do so on
account of alcohol or a drug.
Said the Court :
"Care and control ·may be exercised without
such intent (to put the vehicle in motion)
where an accused performs some act or
series of acts involving the use of the
car, its fittings or equipment, such as
occurred in this case, whereby the vehicle
may unintentionally be set in motion,
creating the danger the section is designed
to prevent".
The majority of the Supreme Court of Canada decided to remit the case back
to the trial court for disposition "by it having regard to the above
ruling".

*****

- 25 -

ARMED llOBBEJtY Mm USDJG A nRKARH Ili mK

COMMISSION OF AB IRDICTABLK OFFENCE
McGuigan v. The Queen Supreme Court of Canada
March 2, 1982 (as yet unreported)
Two men (with stockings over their heads and armed with a shotgun) entered
a variety store.
The proprietor of the store was apparently unimpressed.
He grabbed the gun and took possession of it.
In the process, the gun
discharged but no one was hurt.
He chased the men out of the store and
into a waiting car.
Before the culprits had a chance to take off, the
storekeeper smashed the windshield by hitting it with the gun.
The car was stopped 25 minutes later and the accused (who was driving) and
two others were apprehended.
The damage to the car, its contents and
description all matched perfectly to link it to the attempted robbery.

The accused and the two other occupants of the car were charged with
attempting to steal a sum of money while armed with an offensive weapon,
as well as with the use of a firearm, to wit, a twelve-gauge shotgun, while
attempting to commit robbery.
All entered a plea of guilty to the charge
of attempted robbery while armed but not guilty to the use of a firearm
while attempting robbery.
They argued that both charges referred to the
same weapon and the same attempted robbery and that to be convicted of both
would amount to multiple convictions arising out of the same delict, which
was held to be improper by the Supreme Court of Canada in 19751.
The trial judge agreed with the accused and held that the essential
elements of the attempted robbery charge were the same as those for the
charge of committing that attempt while armed with a shotgun. He acquitted
them of the second charge.
The Crow!l successfully appealed the trial judge's decision to the Ontario
Court of Appeal and the accused McGuigan took the issue before the Supreme
Court of Canada relying heavily on a decision that Court made in 19482.
In that case a fellow by the name of Quon robbed a restaurant owner of $75
while armed with a revolver.
He was also charged with two offences, but
the sections which created these have since been repealed.
The first
'
charge was preferred under a section that created an indictable offence for
being armed with an offensive weapon while robbing or assaulting someone.
The second charge arose from a section which provided a penalty for having
a firearm on one's person while committing any criminal offence. In that
case the Supreme Court of Canada held that Quon could not be convicted of

1 Kienapple v The Queen [1975) S.C.R. 729.
2 R. v. Quon [1948] S.C.R. 508.

- 26 -

both offences as "any criminal offence does not include a criminal offence
an essential element of which is the possession upon the person of a
pistol, revolver or any firearm ••• ".
The way the law was then, to hold
otherwise would create absurd situations. For instance, if someone would
have had a revolver in a place other than his dwelling house without a
permit, he could have been convicted of the offence as well as possessing a
firearm while committing that offence.
After all, the law then did
prohibit possession of a firearm during the commission of any criminal
offence. Therefore, the Courts interpreted the section to have the narrow
meaning as quoted above.
However, the sections of the Criminal Code under which McQuigan was
charged, are totally different from those in issue in the Quon case
although the former replaced the latter enactments.
The distinctions between the old and the new law are that before, having a
firearm on one's person during the commission of any criminal offence was
sufficient to convict. The new section 83(1) imports an additional element
and that is "the use of a firearm".
This is in addition to the elements
which constitute theft while armed with a firearm.
Furthermore, the
absurdities possible under the old law, which compelled the Courts to give
it the restricted interpretation, are no longer possible.
This very question, whether it was proper to be convicted of both offences,
was raised before in provincial Courts of Appeal. All held that the dual
conviction as the law is now, is possible. The case that does appear to
have set the trend and with which the Supreme Court of Canada agreed when
deciding on the McQuigan case, was the Langevin easel. Some passages from
the Langevin judgment are self explanatory:
"It is clear to me that Parliament intended
by s. 83 to repress the use of firearms in
the commission of crimes by making such use
an offence in its own right, and one which
attracts a minimum sentence of one year
consecutive to that imposed for the offence
. which such use accompanies.
The use of
firearms in the commission of crimes is
fraught with danger and gravely disturbing
to the community, and Parliament has sought
to protect the public from the danger and
alarm caused by that use by enacting the
present legislation.
It is not for the
Courts to pass upon either the wisdom or
the necessity for the legislation, but to
give effect to the clear intention of

1 R v. Langevin (1979) 47 c.c.c. (2d) 138

- 27 -

Parliament expressed in
reflects that intention.

language

which

Manifestly, the legislation is directed at
those crimes in which firearms are likely
to be used, such as robbery, and not
offences where they are not likely to be
used, for example, forgery.
To construe
the section as not applicable to the use of
a firearm during the commission of the
offence of theft while armed with a firearm
would largely defeat the clear intention of
Parliament.
I do not find persuasive as a reason for
excluding robbery while armed with a firearm from the application of s. 83 the fact
that robbery itself is punishable by life
imprisonment under the "Code".
Section 83
clearly would properly be invoked where a
firearm is used in the commission of rape
or breaking and entering a dwelling-house
with intent to commit an indictable offence
therein, both of which offences are punishable by life imprisonment".

The Supreme Court of Canada also drew attention to the penalty provided by
section 83(2) C.C. It calls for a consecutive penalty to that imposed for
an offence arising from the same event. Said the Court:
"I do not know what clearer language could
be used to negate the so-called Kienapple
principle".

Accused's appeal dismissed
Charge of attempted robbery does not
preclude a conviction on a charge
under s. 83 of the Criminal Code.

* ****

- 28 -

DAllGKROUS DllVIBG

Imlach v. R. (1982) 1 w.w.R. 765
Saskatchewan Queen's Bench
The accused drove a car for a distance of 10 miles at speeds between 90 and
96 m.p.h. on a grid road.
It was 1 :00 a.m., driving conditions were good
and the sole passenger in the car was also its owner. He had encouraged
the accused to drive in this fashion.
The trial Judge had convicted the
accused of driving dangerously under the Criminal Code. He had found that
any passenger in a car is a member of the public. He also held that since
the driving occurred on a public street, members of the public might
reasonably be expected to be on the road, whether any were there or not.
The accused appealed the conviction to the Queen 1 s Bench claiming that the
trial judge had applied the law improperly.
The Justice of the Saskatchewan Queen's bench said that i f a trial judge
finds as a fact that no member of the public was present or who could
reasonably expect to be present was endangered by the driving, then he had
to address him.self to the relationship of the passenger(s), if any, to the
driver.
Any passenger, whether or not he paid for the ride, may be
a member of the public for the purpose of this section.
Furthermore, driving as the accused did on an abandoned prairie road as
opposed to such driving on an abandoned city street with intersections, may
well differ in respect to creating a public danger as contemplated by
section 233(4) C.C.
The trial judge had not addressed these issues in compliance with the law.

Matter remitted to the Provincial Court to
be disposed of in accordance with the law.

*****

- 29 -

Amll.SSIBILITY OF A STATEKERT MADE BY A PERSON WHO SINCE BAS DIED

Lucier v. The Queen Supreme Court of Canada
January 26, 1982 (as yet unreported)
The accused was convicted of arson. He had increased the insurance on his
home and paid a friend $500 to set fire to it while he (the accused) "was
absent from the locality". In the process of setting the fire the friend
suffered severe burns and died a few days later in hospital.
Before
passing on, the friend made two statements to police officers confessing
his arrangements with the accused and that he had set the fire.
The trial judge had admitted the statements by the friend in evidence at
the accused's trial. This, by virtue of an exception to the hearsay rule
in regards to statements made by a person against self-interest who at the
time of trial "is unavailable by reason of death, insanity, or grave
illness which prevents giving of testimony even from a bed".
A brief history of this rule is as follows. In 1844 a precedent was set in
Englandl that recognized an exception to the hearsay rule that statements
made by a person who since died, are admissible in evidence if the
statement is against the pecuniary (financial) interest of that person.
The exception did not apply if the statement was against the penal interest
of the person who made it. This is of course, where a person confessed to
a crime like in this Lucier case.
The Supreme Court of Canada held in 19782 that "a person is as likely to
speak the truth in a matter affecting his liberty as in a matter affecting
his pocketbook" and allowed such a statement to be admitted in evidence,
the content of which was against the penal interest of its maker.
On the basis of that decision,

the trial judge had admitted the friend's
statement in evidence during the accused's trial.

The main concern in admitting hearsay evidence, is that the -person through
whom it is presented can only vouch for the fact that the statement was
made and not for the truth of its content.
As a consequence, no cross
examination challenging the content being fact, is possible.
However, in
every case where such a statement was allowed in evidence the results were
always in favour of the accused. In other words they had "an

lThe Sussex Peerage case [1844] 11 Cl. and Fin. 82
2The Queen v. O'Brian [ 1978] 1 S.C.R. 591

- 30 -

exculpatory effect" and were introduced by the defence. The Supreme Court
of Canada emphasized that the rule does not apply to statements which have
an inculpatory effect on the accused.
To allow that, would be too
dangerous as, like in this case, the evidence was double hearsay: "it
constituted the policemen's recollection of what the deceased said about
what was said to him by the appellant concerning the lighting of the fire".

Accused's appeal allowed
Conviction quashed
New trial ordered.

*****

- 31 -

ARE IRFORHATIORS RELATED TO SKRACH WARRANTS A HA.TTER.
01' PUBLIC RECORD ARD OPD POK. IRSPKCTION BY HHMBERS OP THE PUBLIC?
The A.G. OF Nova Scotia v. Linden Macintyre
Supreme Court of Canada February 3,/82 (Not yet reported)

Mr. Macintyre, a television journalist, was investigating a story of
political patronage and fund raising.
A Justice of the Peace had issued
search warrants related to the same matters and Mr. Macintyre demanded to
see and inspect the informations prerequisite to the warrants claiming they
were a matter of public record.
The matter ended up in the Nova Scotia
Supreme Court which granted Macintyre' s application.
This decision was
upheld by the Nova Scotia Court of Appeal.
The Attorney General appealed
the decision to the Supreme Court of Canada and was supported by Attorneys
General of Canada and six other Provinces.
The Canadian Civil Liberties
Association also intervened in support of Macintyre, of course.
The
application by Mr. Macintyre refers to the right for any member of the
public to inspect such an information, whether he be a journalist or
whatever.
There is no doubt, that in Canada parties who have some tangible interest
or proprietary rig~ in a search warrant and its information, have a right
to inspect after the warrant has been executed. Common sense tells us that
the element of surprise is an essential ingredient to the success of this
investigative aid.
The Supreme Court of Canada did, therefore, stipulate that their ruling
only refers to search warrants and informations and that their response to
this question "should be guided by several broad policy considerations",
namely:
1.
2.
3.
4.

respect for the privacy of the individual;
protection of the administration of justice;
implementation of the will of Parliament that a search warrant be an
effective aid in the investigation of crime; and
a strong public policy in favour of openness in respect of judicial
acts.

Search warrants are of necessity issued in camera and ex parte.
Such
secrecy "may lead to abuse and publicity is a strong deterrent to potential
malversation".
Therefore, there must be maximum accountability without
harming the innocent or the effectiveness of the search warrant as a weapon
against crime.

-

32 -

The Attorneys General argued that the information to search warrants are
none of the business of the general public and should only be open for
inspection to those who have an interest other than curiosity. They submitted that often nothing is found and that no charges are laid as a result
of the searches.
So why embarrass those subject to the warrants and the
innocent ones who may be residing or are employed under the same roof?
The Supreme Court of Canada responded that it is well established now that
"covertness is the exception and openness the rule" in regards to judicial
acts.
The Justices found it difficult to accept that such acts during a
trial are open to the public but that one performed at a pre-trial stage
should remain shrouded in secrecy. The Court held that in spite of their
understanding of protection of privacy and reputation, .. the public right to
know must yield to the protection of the innocent".
The Nova S.c otia Court of Appeal had gone as far as to say that applications
for search warrants must be made in open court.
The Attorneys General
argued that effective administration of justice would be frustrated i f
individuals were allowed to be present when search warrants were issued.
The Supreme Court of Canada agreed and, in essence, said:
1.

the element of surprise and secrecy must be maintained to avoid the
destruction or removal of evidence;

2.

the application for a search warrant made in an open Court
render the mechanism of search warrants utterly useless";

3.

when the warrant has been executed there is no reason why the information upon which it was issued should not be available to the public and
not only to the persons who directly may have an interest in the
search.

"would

Said the Court:
•• a third party who has no interest in
the case at all is not a threat to the
administration of justice".
In a majority decision, the Supreme Court of Canada, recognizing that every
court may supervise and protect its records and can deny access where the
ends of justice would be subverted by disclosure or where documents would
be used for improper purposes, declared that:
"After a search warrant has been executed,
and objects found as a result of the search
are brought before a justice pursuant to
s. 446 of the Criminal Code, a member of
the public is entitled to inspect the
warrant and the information upon which the
warrant has been issued pursuant to s. 443
of the Code".

* * * * *

- 33 -

ADKISSIBILITY OF AI»IISSION IR KKSPECT TO A TRAFFIC VIOLATION

R. v. Sentell, County Court of Westminster
2 November 1981, Registry No. 81-5951
A bus was driven in excess of the speed limits.
accused was the driver was his admission.

The only evidence that the

When Mr. Sentell was found to have committed the violation he appealed
claiming that the admission should not have been admitted in evidence
without a voir dire to determine if it had been made voluntarily.
The County Court reviewed that the rule of voluntariness is first to deal
with the issue of truth of any explanation or statement, secondly to assure
that the right to remain silent has been observed and, thirdly, to control
police conduct.
Although it has been the popular view that the "statement rule" is only
applicable to proceedings under Federal statutes, this Court held that the
dispute under Provincial statutes is also between a citizen and the State
or the Crown and therefore a matter of criminality.
Therefore, the "voluntary confession rule" should be applicable in all
hearings involving traffic violation reports.
As no voir dire was
conducted, the admission was inadmissible and the finding of the Justice of
the Peace was set aside.

* * ** *