. !5SU~S OF INTEREST VOLUME t«>. 11 Written by John H. Post Director, Police Academy Justice Institute of B. C. 4179 W. 4th Avenue Vancouver, B. C. V6R 4J5 ISSUES OP lll'l'BUST (VOLIJllE II>. 11) Written by John M. Post March 1983 'UBI.I OP COBTDTS III.I. ~ 127 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • UFUSDiG '!O GIVE llllEAl'B SAMPLE mTIL ll&VlliG a>BTACTED THE a>UHSEL OF 'DIE ACCUSED'S CJIOICE - UASOIWSLE UCUSE The Queen v. Davignon County Court of Cariboo Williams Lake Registry No. 22/82 .............. TBE IE&llllllC OF •PLACE• - SBARCRIRC A PDSOll lllDEI. 'DIE IOOD ARD mDGS ACT (SECTION 10) 01. llilCOTIC a>BTROL ACT (SECTIOli 37) 1 2 ...... 6 CUDIIILin - nm WORD OF 'DIE .ACCUSED vs. '!BAT OF A POLICE OFPICEJl • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 8 R. v. Scoville County Court of Cariboo Registry. October 1982 No. 1/82 Ashcroft CUDIIILin - SECTIOli 12 OF 'DIE C&KADA BVI.DEllCE ACT MD TBE CJIAR.TKR <>P UGBTS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • R. v. Jarosz B. C. Supreme Court Vancouver Registry CC 820820 September 1982. a&ASOllAILE 1.1.CUSE - BllKATllAl.1'ZEI. ••••••••••••••••••••••••••••••••••••• Barr v. The queen County Court of B. C. Roseland Registry cc 102/82 DIPAIUD m.IVIBG - UFDSIBG '1'0 GIR SAllPUS r. mBATll legina v. Melgaard County Court of Vancouver I1land Vancouver 1982 Duncan Regi1try 044682 11 ................ ,12 Cl.DII.UL SGLIClllCE - DUGBIOUS m.IYIBG •••••••••••••••••••••••••••••• County Court of Weatainater January 1983 Ho. X828307 New We1tain1ter Regiltry I.. v. Stebbing 10 14 - 11 - ~UVIBILES - CHARTER OP RIGHTS •••••••••••••••••••••••••••••••••••••• W.W.R. [1983) 1 W.R.R. British Columbia Supreme Court 15 •PllOCKDOIAL SIDE !RA~· ••••••••••••••••••••••••••••••••••••••••• 18 POSSESSIOll OF A llAl.COTIC ••••••••••••••••••••••••••••••••••••••••••• The Queen v. Sinclair County Court of Westminster New Westminster Registry X81-7537 21 CBilTEI. OP RIGHTS - DllVl.llG VIII.LE aD>EI. SUSPERSIOH B. C. Court of Appeal February 1983 C.A. #821013 22 a. v. S.B. Anson v. The Queen B. C. Court of Appeal #821310 / February 18, 1983 (Also see page 9 of volume 7 of this publication) • • • • • • • • • • Ill • • • • • • Dl.DlllliG AP'TU 111.lVl.llG BUT JIU'OllE BUATllALYZD. DST • D'IDEllCE m 'DIE llT&AR.Y• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • R. v. Sloney County Court of Yale lCamloops Registry 23 CCC 404 DSTIMOllY OF .All .ACCOMPLICE - CORJlOBOli1'IOR • • • • • • • • • • • • • • • • • • • • • • • • • Vetrovec v. The Queen; Gaja v. The Queen (1983] 1 W.W.R. 193 Supreme Court of Canada UCOLLECTIOll OF EYEllTS - USE OF IDrEBOOlt. VITllESS m CJJESTIOll BIK m DASOIWSLE AMI> PROBABLE GllDUJIDS l'Oll SllEAllI1IG DPOIMATIOll • • • • • • • • • • • • • • • • • • • • • • • • • • The queen v. Jolliffe County Court of Westminster April 1982 No. X816154 New Westminster Registry 25 CALLlllG DIFOl!Wft' § 28 c..E MTIOL OF A tln'Oll YIBICLE ••••••••••••••••••••••••••••••••• Toews v. The queen B. C. Court of Appeal CA 801099 February 1983 . 29 DI.DDCB CX>DI • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 31 POSSUSIOll OF llMJSKUUJIRC toOLS llBVDSI CllUS MD '!Bl C1IAn'D OF UGBTS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Regina v. Fugard County Court of Vancouver Vancouver Registry December 1982 No. CC820806 33 - iii - POSSBSSIOR OF S!OLEN PIOPBl.TY ••••••••••••••••••••••••••••••••••••• Regina v. Horsfield and Muir Vancouver County Court, September 1982 Vancouver Registry CC820642 34 .......... 36 PAI.LIN<: m. DFIJSING • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 37 IS DIE •VAUING• A a>llDITIOR PIBCEDEllT 'IO AmlISSIBILITU Regina v. McKenna County Court of Westminster November 1982 New Westminster Registry No. 81-7014 Regina v. Bell County Court of Prince Rupert December 1982 Prince Rupert Registry No. 79/82 ASSAULT - TRESPASSING lll!VS IEPOl.TERS •••••••••••••••••••••••••••••• Regina v. Silber and Silber County Court of Vancouver September 1982 Vancouver Regstry CC820556 38 CARE m. a>llTJtOL • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 40 Mcilwaine v. The Queen County Court of Vancouver Island, January 1983. Victoria Registry 22317 lllVASIOH OF PllIVACY - BUGGIIIG A CZLL BLOCK • • • • • • • • • • • • • • • • • • • • • • • • 41 Regina v. Johnny, B. C. Court of Appeal - March 1983 - CA810711 caoss EIAMIKATIOR mi CLAIMED Q)()D CJIARACTER ••••••••••••••••••••••• The Queen v. Wilson B. C. Court of Appeal - March 1983 42 CA 821147 ................ 43 CAii UCESSIVI USE OP JIORCI D SKLP lllRllCI Momrr 10 IMllSIADGllTll? - ,_,YC>C:&TlOll • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 46 UFUSDIG 10 PIODOCI lalVD.'S LICEllCI - oasnucr1011 Regina v. White and White County Court of Prince Rupert December 1982 No. CC196/82 6 CC173/82 a. v. Paid Supreme Court of Canada March 1983 - 1 - BILL C-127 In our booklet dealing with Bill C-127, •ome co111Dents are ude on pages about begging as contained in section 244 of the Criminal Code. The comaents are valid but •hould have included the hardly noticeable but •ignificant change to eubsection 244(l)(c) c.c. We did not notice this obscure change until the day after we published the book.let. In respect to •assault by begging" the section now reads: .. A person commits assault when • • • while openly wearing or carrying a weapon or an immitation thereof, he accosts or impedes another person •o•• begs. The capitalized and underlined ·oa· used to be ·and.. in the old eection. This change is •ignificant in that the elements of the offence used to be conjunctive and are now alternative. This Eans that begging while openly carrying a weapon now amounts to assault where before the begger had, in addition, to impede or accost another person. Although this is •ubject to judicial interpretation, it is now con•tructive assault for someone to openly carry or wear a weapon or an iDDitation thereof and 1. 2. 3. accost another person; impede another person; Oil beg. This •ans that while ar11ed as described above and accosting or i•peding •oaeone is assault as i• to beg while eo ar11ed. **••• - 2 - UFUSillG 'ID GI.YB IRIA!B SAllPLB 1lr'l1I. lllVIJIG CDllTACDD 1111 CDUSSICI. al THE ACCUSED'S CHOICE - UASOllABLE UQJSE The Queen v. Davignon No. 22/82 County Court of Cariboo Williama Lake Registry A police officer who was directing traffic at the scene of an accident was alerted about the. unsteady driving of the accused who bad just passed by (he was not involved in the accident). The officer caught up to the accused in about 600 yards and stopped him at 8:35 p.m. Noticing some symptoms of impairment, a demand for breath samples was made and the accused arrived at the police station at approximately 9:08 p.m. The accused, who had already indicated at the scene that he was only too willing to do what was demanded of him, stipulated that he firstly wanted to speak to his lawyer. Be made phone calls to his lawyer's office and home but was not successful in reaching him. It was suggested to the accused that he should phone another lawyer but he insisted on contaeting this particular lawyer before complying with the demand. At 9:28 the accused was urged to comply but refused and was again given the opportunity to try to phone his counsel. As he was simply not getting anywhere the breathalyzer operator entered a refusal in the log book. At trial in the Provincial Court the accused, of course, claimed that in view of his right to counsel, he had a reasonable excuse to refuse giving the samples of breath. The trial judge had responded that: " • • • there is no evidence that allowing m>re time would have accomplished anything useful, in my opinion anyway. The conclusion is inescapable that there was a refusal and no reasonable excuse". The accused appealed his conviction and argued his case on the basis of a decision by the County Court in Chilliwack in October of 1981* where the circumstances were nearly identical to those in this Davignon case. In the Eddy case the County Court Judge had said (speaking to police being busy and having other functions to perform other than sitting by while the suspect makes ahaustive attempts to contact his lawyer): •However, be that as it . .Y, a person's right to * &. v. Eddy Chilliwack Registry Nwaber 214/81. - 3 - contact counsel cannot be treated lightly. Vhen a person is in custody and that person is facing possible criminal charges he 1• clearly entitled to contact counsel of bis choice". In eHence • it was held that Eddy vas acting in a bona fide manner while trying to contact counsel and as far as the County Court in respect to Mr. Davignon (the accuaed) was concerned. ao was be. Appeal allowed Conviction aet aaide. Note: Although this was not an iasue in this case the County Court Judge explored whether there were reasonable and probable grounds for the officer to make the demand for breath samples. Be held that. bad this been a ground for the appeal, he would have allowed it. The officer, the Judge aaid, bad only aome information from another person. He then jumped in his car, went 600 yards and atopped the appellant•. The lack of evidence of iaproper driving, incoordinatlon, or difficulty in producing documents coupled with an apparently insignificant observation that the hack of the accused's ahirt was out of his blue jeans, left the evidence woefully abort of persuading tbe Court that the demanding officer bad reasonable and probable grounds to make his demand. Comment: There are matters in this case that should cause aome concern. The reasons for judgment indicate that the Court assumed that the accused was in custody. There is no reason given for this conclusion. One need not to have been arrested to be detained, but detention does require physical control or restriction*. A aiaple demand and a compliance vi thout being locked in tbe back of a police car or being handcuffed. or other indications that there was •coapulaory or actual physical restraint• does not by itself cauae a suspected iapaired driver of whoa a deaand for breath aaaplea ia •de to be detained or arrested. light to counsel 1a guaranteed to arrested or detained peraons only. Another Mjor problea created by precedents of thia kind 1a that it force• police to uae alternative •ethods to reaove iapaired drivers froa the road. It coapel•• for purely practical reasona, that the * Chroaiak v. The queen 49 c.c.c. (2d) 2S7. 1 of thia publication. See also page 3 of Volume - ... discretion the peace off ice rs will exercise is not based on the lev.l of illpairment or gravity Of circumstances, but aiaply if they can afford the time to proceBS the suspect. Discretion, based on au~h consideration, is an abuse of the principles on which the exercise bf original and discretionary authority is based. It is also a matter of concern if the right to counsel is extended to counsel of one's choice. When a certain lawyer simply cannot be located, after reasonable attempts have been made, then the Brownridge* decision by the Supreme Court of Canada seems applicable. It clearly points out that where an accused has been given an opportunity to contact a lawyer but is unable to do so after repeated attempts through no fault of the police, refuses to provide a breath sample he does not have a reasonable excuse for refusing. One could argue that since the Brownridge decision the Charter of Rights became effective and that it invalidated this precedent. However, the Right to counsel existed at common law and was codified in 1960 in the Bill of Rights. Even at the time of the Brownridge decision in 1972 the Right was so basic and judicially supported that it was suggested that the Right to counsel would have caused Brownridge to be acquitted for refusing to give a breath sample even if the section had not specified that the refusal had to be without reasonable excuse. Some Justices of the Supreme Court said that a denial to counsel •vitiates a convi~: tion for this offence". Furthermore the decision in the Eddy case (in which the County Judge found support for his views) was well before the Charter coming into effect. Although the Courts are likely to pay more attention to a Right included in an entrenched constitution than one existing at common law and codified in an ordinary statute (as the Bill of Rights is), it seems that the application of it was as stringently enforced by the Courts before the Charter as they have since this constitutional document came into effect. In 1970, the beathalyzer laws were enacted as a partial remedy to the slaughter and maiming of people on our highways which we do at a rate which would be called civil war i f it was the result of a national diapute. It worked reasonably well and was of usistance to prove various elements to the drinking/driving offences. Far be it frc:a me to advocate oppressive procedures or excessive measures or anything that violates the principles that ensure a fair and impartial trial, however, we have managed over the years to convert something that was deaigned to &Hist in coabatting a aerious aocial ill into an obstacle. Innovative legal philosophies and bureaucratic servitudes are well on their way to render these Criminal Code provisions a legialati ve tiger with aevere dental problems. * Brownridge v. The queen (1972) 7 c.c.c. (2d) 417 - sIn addi tlon there are grave doubta i f legialation alone can remedy thi• problem. Iapaired driving 18 •ocially con•idered an act of indiacretion; aoaething like a virus ve all are •u•ceptible to. Sboplif ting, which does not physically jeopardize anyone, aay •an aocial devastation and irreparable harm to our credibility, and giving intoxication as an excuse will no doubt aggrevate the aocial adversities to our reputation. That Pete was roaaing around a department store in a atate of intoxication and did not pay for merchandise is socially unacceptable; that be had attended a retirement party, had a few too ..ny and wiped out hie fellow aan on the way home, calls for understanding and compassion. After all, that could happen to all of us. History contains an abundance of proof that law is seldom remedial unleas there is social disapproval of the act it prohibits. Its a aat ter of fact •ocial disapproval is often remedial by itself. It reduced pollution while social acceptance increased dissolve11ent of families. Although these examples are simplistic and involve other considerations, they are basically sound to aupport that aocial rejection and disapproval often precedes legislation and supersedes it in effectiveness. Perhaps we have to have an all out propaganda campaign to expose the drinking/driver as a public enemy; a person who perhaps violated the law but aore importantly was so incredibly inconsiderate, so egotistical, ao utterly negligent that be is quite prepared to randomly maim, kill or just jeopardize hie fellow citizen for the sake of getting home and being spared the inconvenience for not having his car available to him when be auet get to work tomorrow with that terrible hangover. * **** - 6 TllE lllWIIBG C1I •PLACE• SQICRTRG A PEI.SOii 111DD DIE IOOD AllD llUJGS M:r (SZCl'IOB 10) Olt IWlCOTIC CORTIOL Ac:r (SICTIOll 37) Recently a B. C. 1DUnicipal constable stopped a known drug trafficker on the street and detected a strong smell of hashish on him. He searched the man and found a paper bag. The suspect grabbed the bag out of the officer's band and ran. Be was later apprehended and charged with obstructing a peace officer in the lawful performance of his duty. The bag, which he conceded in testimony contained the prohibited 1DUshrooms, was not found. The accused raised a technical defence and submitted that the officer's search for drugs on his person was unlawful as it was unauthorized by statute or common law. The incident occurred on a public street. The accused argued that section 37 of the Food and Drugs Act did not apply. The applicable portion of Section 37 of the Food and Drugs Act reads as follows: "A peace officer may at any time (a) without a warrant enter and search any place other than a dwelling-house, and under the authority of a writ of assistance or a warrant issued under this section, enter and search any dwelling-house in which he reasonably believes there is a controlled drug by means of or in respect of which an offence under this Part has been committed; (b) search anr person found in such place; and (c) seize and take away any controlled drug found in such place and any other thing that 11ay be evidence that an of fence under this Part has been committed ; " The accused submitted that the section authorizes the searching of persons only in "any place" the officer "aay enter and search without warrant" upon reasonably believing there are controlled drugs by means of which an of fence under the Act is committed. The section implies that "any place" is a constitutionally protected place; a place police have no right to enter if it is not for the reasonable grounds for believing that drugs are present. Only in "any place" like that entered by police upon prerequisite grounds to do so, aay any person found "in such place" be searched, the accused claimed. - 7 - A public place is not included in the •any place• u uaed in the •ection, argued the accused, hence the officer vaa not in the lawful perf oraance of hia duty. The Provincial Court Judge agreed and gave the Crown a couple of weeks to ahow thia defence wrong. In the absence of doing ao the accused would be acquitted. To assist, a search was done of cases on this iaaue. auf f icient interest to include it in this ~lume. It aee• of The B. C. case in which this wry iasue was decided in 1977 ia Regina v. Hamilton (County Court). The reasons for judgment can be found on page 146 of Volume 7 of the British Columbia Law Reports. This Hinds case was decided on a charge under the Narcotic Control Act. Section 10 of that Act, with the exception of some necessary differences in subsection (c), is identical to 8ection 37 of the Food and Drugs Act. In the Hinds case, a police constable encountered a car parked in a peculiar position off the highway. Upon checking it be found aarihuana on the ground next to the car. . Be deterained that the narcotic belonged to the passenger. Be then turned his attention to Hinds, the driver, who submitted hiuelf to a body search. When the officer reached under the belt line be felt a plastic bag adjacent to Binds' aborts. When the officer attempted to pull it out the accused objected and resisted the officer. A passing motorist usisted and Hinds was subdued, arrested and charged with resisting a peace officer in the lawful performance of his duty. Binds raised arguments identical as related above. They were to no avail in the Provincial Court and he appealed his conviction to the County Court. Be even had a more restricted view of what "'place· ahould include and submitted that the section implied by saying that •entering"' . .y be done without warrant, that it referred only to a building or structure. This particularly since in the next breath it 11entions a dwelling house as an exemption to such entering unless there i• a writ of aaaiatance. The County Court disagreed with Baailton '• •ieva and concluded that one can enter any place whether this be a field, a garden, a atreet, lane or building. Therefore, the words in aection 10 of the Narcotic Control Act do not have the liaitationa Ballilton suggested. Baailton'• appeal was disaiaaed and hia conviction upheld. Thia case baa not been overruled and la to the beat of ay knowledge •till the lav in I. c. ***** - 8 - CUDUILift TBE VOJlD OF TD ACQJSBD YS. 'l'B&.T OF A POLICE OFFICER R. v. Scoville October 1982 County Court of Cariboo No. 1/82 Ashcroft Registry The patrol car and the vehicle pulled over by it, stopped simultaneously. When the officer came to the driver's door the accused alighted from it. The officer did not ask i f the accused was driving and the accused did not indicate whether he was or not, but was nevertheless convicted of impaired driving. The accused testified that his girlfriend was driving and that they had switched places the very moment they had come to a stop. He gave no reason for having done so. This meant that there was no direct evidence that the accused had been driving other than the officer's testimony that the accused came from behind the wheel. The accused appealed his conviction on the grounds of the precedentl that ". • • an explanation given by an accused that could reasonably be true, despite the fact that the tribunal was not convinced that it was true, entitles the accused to the benefit of reasonable doubt and accordingly, acquittal". This argument was quickly defeated by the Crown who brought to the attention of the Court that this aust only be applied in cases where the accused 1111st explain or else stand condemned. For instance where a person is in possession of goods recently obtained by crime. He must explain right away or by means of testimony or else the inference may be drawn that he committed the crime by which the goods were obtained or did have knowledge that they were so obtained2. It does not apply in all cases where an accused, in his defence, decides to .come up with some version of the events in issue that would exculpate him criminally. 1 R. v. Gavrilovic (1974) 18 c.c.c. {2d) 287. 2 R. v. Sugiyoma [1976) 2 B.C.L.R. 164 - 9 - The County Court found that the constable'• evidence vas liaited but •. • • that in term of ti• and proximity. the appellant vas 110st certainly the peraon in the operator'• position .. the appellant'• vehicle and the police vehicle came to a atop • • • •• The verdict of the Provincial Court Judge was not unreasonable and was supported by the evidence. Appeal dismissed Conviction Upheld. ***** 10 - CUDIBILITY SBCTIOll 12 OP DIE CA•ADA BVIDDCI Acr .&llD DIE CllAUD OP Uc:aTS R. v. Jarosz B. C. Supreme Court September 1982. Vancouver Registry CC 820820 Section 12 of the Canada Evidence Act allows a witness to be cross examined on whether he has been convicted of any offence. This, of course, to discredit him and thereby shed doubt on his testimony. If an accused person selects to testify at his trial, the same rule applies. Section ll(d) of the Charter of Rights guarantees us to be presumed innocent until proven guilty. Although this presumption was alive and well prior to the Charter coming into effect, the accused, when cross examined at his trial re his previous conviction, claimed that since the entrenchment of this right in the Charter, section 12 of the Evidence Act is now invalid. In other words he claimed that having •constitutionalized' the right, it carries now more weight and has greater impact than what it did previously. For good measure, the age old argument was thrown in that when a jury bears that the accused has a record it will not be able to use that evidence exclusively to deal with his credibility (whether to believe his testimony). The jury will inevitably be influenced (particularly when the convictions include a crime similar to the one for which he stands trial) to believe that the accused is guilty of what is alleged against him. The Court concluded that credibility is critical in many cases and that both the Crown and the defence must have the ability to test credibility within the limits of the law. When a jury is properly instructed on this issue it will not result in an unfair trial or affect the presumption of innocence. Application to rule Evidence Act Invalid was denied. ***** section 12 Canada - 11 - UASOllAIU DCUSE Barr v. The queen County Court of B. C. Rossland Registry CC 102/82 The accused was involved in a single vehicle accident on an abandoned stretch of road. A paBBer-by gave him a ride to the next town and dropped him off at the police station where the accused was promptly subjected to sobriety tests followed by a demand for samples of breath. The accused who had sustained very minor personal injuries (hand and forehead) refused to give samples of any kind until he had received some medical treatment. Although the officer had expressed that the injuries were too ainor to serve as an excuse to refuse to give sa11ples, he drove the accused to the hospital where ·some treatment .. was given. The accused was convicted of failing to give breath samples and appealed claiming that bis request for •dical attention was bone fide, secondly that the officer had lacked the reasonable and probable grounds to aake the demand. The accused did not lead any evidence about his injuries while the onus was on him to show on the preponderance of evidence that he had a reasonable excuse because of .. circUlll8tance which rendered compliance with the demand either extremely difficult or iikely to involve a substantial risk to his health . . . . . * The County Court Judge could not find anything in the evidence that gave the accused such an excuse. In regards to the second ground the evidence showed that the accused arrived at the Police station fast asleep on the back seat of his benefactor'• car. When awakened with difficulty the accused said he vas alone vhen he had the accident 1 1/2 hours ago. Furthermore he •olunteered that he had nothing to drink since he drove his car. Therefore, deaand. the officer bad the grounds prerequisite to -king the Appeal dismissed. Conviction upheld. ***** * Regina v. Nadeau 19 c.c.c. (2d) 199 - 12 - IMPAIUD DR.IVDIC UPUSDIG 'IO GIVE SAllPLBS OF BUATll Regina v. Melgaard County Court of Vancouver Island Duncan Registry 044682 Vancouver 1982 The accused was seen driving a car that 'wandered' within its own lane. He was given a roadside sobriety test and a demand for samples of breath was made. The accused responded that he did not mind to give the samples but objected to have to go with the officer. It was pointed out to him that that amounted to 'refusal' and an appearance notice was prepared for impaired driving and refusing to blow. While this was done the accused 'demanded' to have his driver's licence returned to him and was not willing to wait until the notice was completed. The accused was then arrested for being drunk in a public place. The following morning, approximately six hours later, the accused was released and the appearance notice then served on him. During his custody he was not given the opportunity to provide the demanded samples of breath. The accused was convicted of both impaired driving and 'refusing' and appealed these verdicts. The County Court Judge was very critical of the way police handled the case. He considered the arrest for drunkenness '"spurious'" and said someone could be excused for inferring that the officer had limited experience in dealing with impaired drivers. Co11111ent was made of the fact that no opportunity was afforded the accused to redeem himself and give the samples and that none of the station officers were called to verify the accused's condition when booked. Furthermore the County Court Judge seemingly reluctantly accepted the facts as they had been found by the learned trial Judge, '"although I think my reaction to the evidence would have been different ..... be •aid. The County Court Judge found the Crown's case flimsy and far short of meeting the burden of proof; the drunkenness charge was '"trumped up'"; the role of 'the other constable' very paHive and his evidence of a kind that added nothing to the Crown's case; the lack of an opportunity to give samples of breath after the arrest was deprivation - 13 - of •natural ju•tice•; and •ince the admini•tration of ju•tice begins vith the police, the handling of the c.a•e vaa unfair llftd !aproper. Furthermore the County Court Judge obaerved that the place where the accu•ed had done his drinking was no more than 5 ainute• away from the accu•ed'a hoae (what bearing this h.. ia anyone'• gue••) and that the work the accused had been doing •aight well explain in part at least the condition of his eyes and perhaps his balance·. In re•pect to the accused'• belligerent attitude at the acene the Judge observed that the officer •became very irritated with the accused's behaviour, who admittedly was abuaive and upset, for which there could be a number of explanations·. The accused's appeal was allowed. The two convictions were quashed. ***** - 14 - CRJJIJDI. llBGLIGDCE - DAllGDOUS DUVIllG R. v. Stebbing County Court of Westminster New Westminster Registry January 1983 No. X828307 At 1:00 a.m. there were four cars on a one mile stretch of a four lane highway and death and serious injuries resulted from a bead-on collision. Three of the cars were proceeding north and the fourth in a southern direction. The three cars were two vehicles side by side doing in excess of 160 k.p.h. while the speed limit was 70 k.p.h. anl:l the third was a police car following at nearly a 1/2 mile distance. The accused was in the curb lane. After be had entered the stretch of road he had accelerated very quickly as had the other (cutting out all the descriptive niceties, they were simply drag racing although the reasons for judgaent do not aay so). The Court said, ..An unspoken challenge and acceptance of that challenge might be inferred. I do not do so·. The two cars touched one another slightly and the accused beaded for the ditch while the other car in the center lane headed for a terrible bead-on collision, death and destruction. The police officers witnessed the actions leading up to the collision and the accident itself. As the police officers had not activated the emergency lights on the police car, the Court inferred that the officers did not apprehend any danger from driving at a high speed in view of the road conditions or density of traffic. The Court held that the major collision was of only peripheral relevance to the proceedings. In other words, the accused was not to blame for the collision. Therefore, the necessary moral element for criminal negligence driving, alleged against the accused, was lacking. However, the Court held that dangerous driving is an included offence in criminal negligent driving and concluded: ·Driving at a speed far above the limit which either eliminates the ability to unoeuvre safely when the unexpected occurs or which leads directly to loss of control when there b an intervening event, the potential for which event is recognizable although not be expected, is dangerous within section 233(4), particularly where there is a real danger to at least one other person then the driver, in this case Mr. Saith• (the accused's passenger). Convicted of dangerous driving ***** - 15 - JURllILBS - CBAUD or nGBTS a. v. S.B. w.w.R. (1983) 1 w.R.R. British Columbia Supreme Court S.B. vas a 12 year old charged vith three delinquencies, to wit breaking & entering vith intent; aischief and .etting fire to . .terial which could likely cause a building fire. Under the provisions of the Juvenile Delinquents Act the Court ia authorized to Mntence S.B. to an Industrial School until he reaches the age of 21 years. Considering his present age, that means that the •xiaum imprisonment to which S. B. is liable 1a 9 years - in any event, a period in exceBS of 5 years. Section ll(f) of the Charter of lights states: ·Any person charged with an offence baa the right to the benefit of trial by jury vhere the maximum. punishment for the offence is imprisonment for five years or a aore severe punishment•. Defence counsel aade a preliminary objection in Provincial Court challenging the Judge's jurisdiction to try S.B. without a jury. As the Judge rejected the 1ubmiBSion the issue was taken to the Supreme Court. The Crown took the position that .ection 11 of the Charter does not include delinquencies. Furthermore, the proceedings are, according to section 5 of the Juvenile Delinquents Act, to be sulllll&ry in nature. Hence, there is no provision for a juvenile to elect how he wishes to be tried unless he is transferred to adult court. The Supreme Court Justice had to conaider if the Charter of tights renders these provisions of the Juvenile Delinquent• Act of no force or effect insofar as they are inconsistent vith one another. Secondly, if section 1 of the Charter vhich, in essence, tella the Judiciary that they aaat not apply the Charter beyond the reasonable liaita aa can be deaonatrably juatified in a free and de110cratic •ociety, ueapta the Juvenile Delinquents Act froa being conlistent with the Charter. - 16 - The Supreme Court of B. c. concluded: 1. That a juvenile charged with an offence known as a delinquency for which he can be sentenced to more than five years to an industrial school, is entitled to elect trial by jury if he so desires; 2. That the Juvenile Delinquent Act'• denial of juveniles being tried by a jury, is not merely a reasonable limit which is demonstrably justified in a free and democratic society; and 3. The Juvenile Delinquents Act ia of no force or effect to the extent that it is inconsistent with section ll(f) of the Charter. This simply means that a juvenile, in many i f not aost cases, will have the right to a jury trial. Comment: This is another delay in the pursuit of the objectives of our juvenile laws which were designed to get on with the aost iaportant aspect of preparing the '"generation in the wings.. to cope with and to be constructive aeabers of society. The laws which were intended to be a practical means to an end are becoming the end in itself. It is important to demonstrate to our young citizens, that the system which determines their guilt or innocence is fair and just. However, manipulative legal 11aneuvering has no place in a juvenile justice system; it is too damaging to the impression it leaves with the young person; their sense of justice is still too basic, the co-existance of factual guilt and legal innocence in our aystea is too complex for them. Therefore, we hardly impress the next generation or do anything constructive for them with iapleaenting all our legal luxeries in their justice ayetea. What is necesaary or appropriate in the adult ayatea is capable of being euperf luous and inappropriate when we deal with young wayward•, particularly in view of tbe stated objective of tbe juvenile procedures. Our proposed Young Of fenders Act places a heavy emphasis on access to counsel at nearly every stage of tbe juvenile's involveaent in the procedure. Instead of doing the customary scoffing of this, we must not underestimate the dile- this places on conscientious counsel. Hie ethical obligations to look after the legal intereat of his client and the pedagogical objectivea of the juvenile law to deal with the - 17 - child u one who requires help, guidance and proper aupervieion, are ·diabolically opposed to one another. A delinquent youth with bis basic under•tanding of justice and unawarenea• of procedural niceties, vbo i• witness to the tactic• rendering him legally innocent while he b factually guilty, has an experience with our legal ay•tea not unlike the child taken to a brothel to introduce it to the beauty of love. The ethics and precedents which coapel our lawyen and judges to act as they do ·wen dealing with juveniles is surely inconsistent with the guidance and help Parliament had in aind for those we are to prepare to become responsible 11eabers of aociety. Another thought that one cannot help to surface ia the legal submissions when a jury is selected. The jury history dates back to the Magna Carta of 1215, which determined in article 39 that no one shall be imprisoned or penalized other than by tbe judgment of bis peers. It will be interesting if those by statute eligible for jury duty are seen as his elders rather than his peers. Perhaps a jury of citizens of his own age uy well have a concept of justice that is more fair, fundamental and in line with the delinquent's understanding of it than ours. Another solution to the juvenile procedure problellS may well be to adopt the inquisitory system instead of the adversary one we now use. ***** llote: Since writing all these comments, the B. c. Court of Appeal rendered judgment on this case (February 12/83, CA 821306). The Justices unanimously decided that the purpose of the Juvenile Delinquents Act is not to punish but to provide treatment to a child in need of guidance and supervision. Confinement in an industrial school does, therefore, not constitute punishment. Hence• section ll(f) of the Charter does not provide for a juvenile to have a jury trial if he, due to hie qe, is eligible to be committed to an industrial 1chool for 5 years or aore. • • • •PLOP-PLOP, FIZZ-FIZZ, OH WHAT A RELIEF IT 1s• - 18 - ·PIOCEDUliL sm:s TIACllJIG. Anaon v. The queen B. c. Court of Appeal #821310 - February 18, 1983 (Also eee page 9 of 'VOlwae 7 of this publication) Anson was charged with po88e88ion of heroin for the purpose of trafficking. At the very outset of the trial the accused asked the Judge to rule if section 8 N.C.A. was still operable now that the Charter of Rights calls for the presumption of innocence and stipulates that the fundamental principles of justice 11\1St be adhered to in processes by which persons can be deprived of property or liberty. When the trial judge ruled that section 8 N.C.A. can co-exist with section 7, ll(d) and 52 of the Charter, the accused was granted an adjournment so he could ask the Supreme Court the same question. When he also lost there (see reasons in Volume 7 of this publication) he took the 11atter to the B. C. Court of Appeal. Section 24(1) of the Charter of Rights states: •Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent juristiction to obtain such reaedy as the court considers appropriate and just in the circumstances". It was feared that this section would cause what is known in the U.S. as procedural sidetracking. Every time a Charter iBBue would be raised and the trial court's ruling would not be to the liking of one of the parties, the proceedings would have to come to a stop until the matter is decided by a higher court. There were also some questions raised as to what level of court bas the competent jurisdiction to deal with disputed Charter i88ues. To avoid the ·side tracking" it should be the Court that bas jurisdiction to try the accused for the offence alleged against him. The B. C. Court of Appeal held that the point of law the accused raised was premature. He firstly bad to be found guilty of possession of heroin before aection 8 N.C.A. would arise. The Court also said that: •1t every case is to be interrupted each time a conatitutional point arises while prerogative relief ia aought, while appeals are taken to this Court mid to the Supreme Court of Canada, then the adainistration of juatice would be chaotic, the cost to the accuaed would be oppresaive, and the cost to the public unjustified". - 19 - The Court of Appeal ruled that each level of court •hould, 1D nearly all caaee, rule on the constitutional point and continue and c:oaplete the trial. 1f the verdict i• guilty then the accused can include that point in the grounds for hie appeal. Accuaed'• appeal diallieeed Note: The Alberta Court of Appeal has ruled aillilarly in November of 1982 in The Queen v. ·Kendall. - During the aonth of February the Supreme Court of Prince Edward Island and the Court of Appeal of Ontario held in the Queen v. Carroll and The Queen v. Oakes respectively, that aection 8 N.C.A. is unconstitutional and inoperative. It may be of interest to explore what the Ontario Court of Appeal bad to say about section 8 of the N.C.A., the aost aevere reversed onus clauses on the statute books. The Court reiterated that a reversed onus' clause is contrary to •the presumption of innocence· provision in the Charter, ~ (a) it places a burden of proof on the accused beyond proving aomething on a balance of probabilities; or (b) it requires the accused to prove aomething unreasonable to expect him to be able to prove. that is This has always been the test applied to determine the propriety of reversed onus clauses. The Ontario Court of Appeal considered it necessary however, that since the presumption of innocence and the right to remain silent are now entrenched in our constitution, another aaf eguard had to be added. Every presumption of fact has a proven fact u a prerequisite. For instance, to presume the fact that a person bad care or control of a aotor vehicle, the Crown (if i t relies on the preauaption in s. 237 c.c.) aust first prove the fact that he occupied the aeat ordinarily occupied by the driver. The Court held that froa here-on-in •rational connection· between the proven fact and the presumed fact aust be conaidered to determine if the presumption can co-exist with the Charter. It aaid that auch rational connection only exists where one can aay that the proven fact aakes the preaumed fact a probability .and poaaeaeion of a narcotic doea not aean that trafficking it · is probable. Bence, S. 8 N.C.A. '• preauapUon is unconstitutional, in Ontario and Prince Edvard Ialand at least. Hot having had the opportunity to read the reasons for judgment in its entirety, the quantity of heroin Oakea had in hi• posseaaion I do not know. - 20 - It •eems teapting to deduce that if •ection 8 N.C.A. i• •truck down and inoperable, the only way to prove the charge of possession for the purpose of trafficking is by the possessor admitting that purpose or •bowing that he did traffic. (Of course, if the latter is the case •possession for the purpose" aay only be the back-up charge). It also seems reasonable to assume that the allegation against Oak.es afforded the Ontario Court of Appeal to deal with the constitutionality of section 8 N.C.A. and that it ruled the section inoperable in all circumstances and not just in circumstances as they were in the Oakes case. A lot of common law surrounds section 8 N.C.A. and it shoul·d not have been weighed against the Charter without putting all that co!llllon law on the scales with the section to see if the aggregate tips it in favour of the constitutionality of the presumption. However, losing the section is not as devastating as it seems. To put it like one very experienced drug law enforcer "it is a non issue". In other words, helpful. the section was not abused and was not all that If the section is inoperable the co111Don law is still valid, but the burden to prove will be on the Crown to prove beyond a reasonable doubt that the purpose for the possession was to traffic. It seems not inaccurate, that in most cases where there is no direct evidence of the intent to traffic, evidence of packaging, documents and the quantity of the contraband rather than section 8 N.C.A. dictates whether the charge will be possession or possession for the purpose. The judges of the facts (juries or judges sitting alone) will still be instructed of their right to draw an irresistable inference from inculpatory evidence that so surrounds the accused that either he explains or stands condemned or convict on evidence that is consistent with guilt and inconsistent with any other rational conclusion. If this were not 10, and particularly where the accused is a known trafficker, the law would be as absurd as to be coapelled to assume that the driver of a bread truck carries his lunch until we actually see him making deliveries. Please note that this Ontario decision (Oakes v. 'lbe Queen) is not binding on the B. c. Courts ***** - 21 - POSSESSIOB OP A llAROOTIC The Queen v. Sinclair Registry X81-7537 County Court of Westminster New Westminster The accused, the registered owner ad •ole occupant of a car, was •topped by police. A paper bag protruded from under the eeat and was found to contain five different kinds of narcotics. When questioned, the accused denied any knowledge of the bag or its content. Due to this ad the fact that the car had been stopped a few weeks earlier with a woman driving it caused the County Court Judge to be very concerned about concluding that the accused (charged with five counts of possession for the purpose of trafficking) was in possession of the narcotics. The Crown invited the Court to follow a decision by the New Brunswick Supreme Court* where the circumstances were similar, but where, instead of saying '"I don't know'" like this accused, Vautour said, ·1•m fucked· and when asked what he said, replied: •That really fucks it... This the County Court Judge held was an indication of guilt on the part of Vautour and, therefore, the cases are distinct from one another. Although it could be said that the accused had control over the bag and its content, none of the other ingredients in the definition of '"possession'" in section 3(4) c.c. had been proved. This being the case left '"personal possession" the only aeans to ehow possession. Co1111on law states that for personal possession, one aust have knowledge (not only of the presence of the contraband but also in the case of prohibited items knowledge what it is) must unually handle it, and aust have a aeasure of control. The County Court concluded: '"Under the circumstance•, if I were directing a jury at this time, I would be forced to the conclusion that there i• no evidence upon which they could come to the conclusion beyond a rea1onable doubt that thil aan was guilty of the poaseasion of these drugs, or that 1uch . .idence waa •o deplorably weak it would not be worthy of the• to consider a further upect of the caee". ***** * a. v. Vautour 1 C.C.C. (1970) 324 - 22 - CBara 01' UGllTS DUYUG VllILB UllDD SUSPDSIOR B. C. Court of Appeal February 1983 C.A. 1821013 Section 7 of the Charter of Rights reads: '"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Recently {September 1982) section 94(2) of the Motor Vehicle Act became effective. This subsection, was no doubt, aimed at the defence of "no knowledge" in regards to a "driving while suspended" charge. The Courts have consistently held that a person cannot be convicted of this offence unless the Crown showed the accused had knowledge that his driver's licence was under suspension. Apparently, to circumvent this, subsection 94(2) stipulates that the offence is one of '"absolute liability'". A reference was made to the B. C. Court of Appeal {a rare procedure that can only be exercised by the cabinet) to of fer an opinion on the constitutional validity of the subsection. The B. C. Court of Appeal assumed more jurisdiction under section 7 of the Charter than what was anticipated. It was and is believed that section 7 only refers to procedural laws and issues only and not substantive law. Section 94(2) M.V.A. is substantive law and yet the B. c. Court of Appeal concluded that it had jurisdiction to strike it down. The reasons for judgment are confusing and leave numerous questions unanswered. However, subsection 94(2) M.V.A. is invalid legislation and everything, including knowledge of the suspension on the part of the accused mist be proved. ***** - 23 - R. v. Sloney County Court of Yale kamloops Registry CCC 404 The accused had a motor vehicle accident near •Joe'• Cabaret•. Before police arrived to investigate, the accused • • • • had one at Joe's·. At trial the Crown relied on section 237(1)(c) which provides that, in the absence of evidence to the contrary, a certificate shoving blood alcohol content at the time of analysis 18 proof of the alcohol in theaccused's blood at the time of driving. The trial judge found that the ·one at Joe's• was evidence to the contrary and there was, as a consequence, no proof what the accused'• blood alcohol content was at the time of driving. The Crown appealed the accused'• acquittal of a charge of ·over 80 mg·. The prosecutor argued that the only B. C. case* similar in facts to this Sloney case, and decided by the B. C• . Court of Appeal in favor of the accused's position here, · had been superseded by the Supreme Court of Canada. The cases cited by the Crown all addressed the meaning of •evidence to the contrary• but none were similar in fact to this case or Kazan's. The Supreme Court of Canada had this to say in a case where the defence showed a possibility of m>re than one centigrade difference in temperature between the room air and that of the standard alcohol 1olution: •Mere poBSibUity of eome inaccuracy will not assist the accused. What i• necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the aanner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analyah to the extent that it would leave a doubt a• to the blood alcohol content of the accused being over the allowable aaxi11Um·. It vae the underlined portion of the quote the Crown clai•d changed the law as established in ~zan. The accused'• breath analyses * l. v. ~zan SS CCC (2d) 444 - 24 resulted in readings of 180 and 170 mgs. Would the one drink •at Joe's• vi th these readings, leave doubt that the accused'• blood alcohol level was over 80 mgs. at the time of driving? The •practical question" was whether, because of the "presumption of equalization" (Section 237(l)(c) c.c.), the accused had to show that his blood alcohol level at the time of driving, because of •the one at Joe's" was below 80 mgs. , or does the burden of proving that it was over 80 mgs. remain with the Crown in these circuastances. The County Court answered that, by enlarge, the Courts have placed the burden of proof on the Crown and said that in these circumstances, the certificate is only evidence and not proof of the blood/alcohol level at the time of driving. In other words, the Crown should have called an expert to interpret the reading, taking the "one at Joe's" into consideration. Not having done that, the trial Judge had found as a fact that there was doubt what the level was at the time of driving. The appeal court could not disturb such a finding. Crown's appeal dismissed Acquittal upheld ***** - 2S - nsTIJIOll1' r. M ACCOllPLICI COUOIORA1'101' Vetrovec v. The queen; Gaja v. The queen (1983) 1 w.w R. 193 Supreme Court of Canada The accused and •everal others were convicted of conspiracy to traffic in heroin. At their trial a witness who had •muggled heroin from Hong Kong into Canada for them, had testified how these two accused had •trapped the heroin on him and had paid him for his efforts. The trial judge, in his six day address to the jury (after a one hundred day trial which resulted in a transcript of over nine thousand pages) had warned that it was dangerous to convict the accused unless the evidence of the accomplice was corroborated. Then the Judge had listed a number of items seized from the accused which were capable of corroborating the accomplice's evidence, euch as the passports of both accused ehowing that they were in Hong Kong when the accomplice said they were, paraphernalia related to the drug trade, large •ums of 110ney, etc. The defence argued before the Justices of the Supreme Court of Canada that the evidence the trial judge considered to be capable of corroborating the accomplice's testimony was no auch evidence as it only related to the drug trade generally and not •pecifically to the transactions between the accused and the accomplice. Nothing corroborated the "'overt acts"' the acomplice claimed to have taken place, claimed the defence. The fact, for instance, that they were all in Hong Kong at the same time was too remote to corroborate all the things the accomplice aaid happened. The Supreme Court of Canada decided to reassess the general principles relating to the law of corroboration respecting the testimony of accomplice• and concluded that it was in need of reform. In 1820 the English courts .Sopted a real comaon 11en•e approach to the acceptance or rejection of the te•tiaony of an accomplice. One aentence in an .Sdre•• to the Jury in that year said it all: •tou are, each of you, to aak youreelf this queetion • • • 'Do I upon the whole, feel convinced ir;i my conscience, that this evidence 11 true, and auch as I . ., safely act up it?'"' - 26 - However, prior to and eince that tiae, there bas been a lot of •oul •earching about this iesue. It was perceived that there 18 eoaething •unsavory" about a person who participates in a crime and then, of ten for gain, accuses his partners in that crime. This resulted in the •accomplice warning" by Judgee to the juries as early as the 18th century which actually, like the one quoted above, 8ll0unted to: "Beware when you consider his testimony, he was an accomplice". In reasons for Judgements and books, a lot bas been •aid about this, euch as: ". • • the main reason for the rule was that an accomplice may try to save hiuelf from punishment by procuring the conviction of others". "The danger is, that when a man is fixed and knows that his own guilt is detected, he purchases impunity by falsely accusing others". ". • • an accomplice cannot be trusted because be will want to suggest his innocence or llinor participation in the crime and to transfer the blame to the shoulders of others". "It of ten happens that an accomplice is a friend of those who committed the crime with him, and he would 1111ch rather get them out of the scrape and fix an innocent man than his real associates". • • • an accomplice is not to be believed since he is a self confessed criminal and is morally guilty". etc. Some of these things were said before and after 1916 when a precedent eetting decision was made by means of which "corroboration" was defined and added to the •accomplice warning" and later by statute and co111on law to other evidentiary essentials. The British Lord eaid: "We bold that evidence in corroboration auat be independent teati110ny which affect the accused by connecting or tending to connect him with the crime. In other words it met be evidence which iaplicatea him, that ia, vhich conf ir• in •o• aaterial particular not only that the crime has been co-itted, but aleo that the prhoner co-1 t ted it". - 27 We have •ince •trictly applied the definition to the extent of ignoring the real i••ue, whether or not the accoaplice 1• credible and can be believed. A ncent trend has nlaxed the application 80•what, and law nf ora recommendatione are to liait ita use and in certain circwutance•, i t has been legislated that it 1a DO longer nquired for the tutimny of rictims of certain criaes (Bill C-127). The Supreae Court of Canada reviewed that trend and the opinione of learned authors cd posed the question: '"Why have a epecial rule for .ccoaplices at all?. It reasoned that the Courta do not have to issue warnings when shady, untrustworthy, and disreputable witnesses testify. '"Why then should we autoaatically require a warning when an accoaplice takes the stand?" The Court concluded that the theory of corroboration is unsound and over cautious and has created an incredible body of coaplex law. •The result is that what was originally a siaple common sense proposition - an accomplice'• testillOny should be viewed with caution - becomes transforaed into a difficult and highly technical area of law·. The result is that what ought to be simple does now, because of its complexity, go right aver the heads of a jury and when they get to the jury room, they will, despite judicial instructions, approach the aatter with COlllllOn sense. The Supreme Court of Canada held that accoaplices must be treated like any other witness. In some circumetances it . .y be appropriate for a Judge to iHue a clear and sharp warning of the risk of accepting the evidence of any witness, whether an accoaplice or not. The jury had, accomplice. in this case, obviously believed the testiaony of the Accused appeals dismissed. Comment: Perhaps to soften the blow for the defence bar who mist love the labyrinth of law surrounding corroboration (which aakes it difficult for a judge to instruct a jury without a flaw 80aewhere) the Supreme Court of Canada pointed out how haraful the practice was to the accused. While all of the comaon law around corroboration was there to protect the .ccused, he discovered to his horror that at the conclusion of his trial, when the judge is •opposed to warn the jury to be careful in .ccepting the .ccomplice 's testiaony, he was obligated to •ua up all of the evidence harmful to the accused, which aay Mrve to corroborate the .ccoaplice' s evidence. All of the damaging aspects that were •prinkled all through the evidence, are DOV all •ynoplised like a reainder to the jury of everything inculpatory in tbe evidence. It must not be forgotten that this case only addresses tbe narrow que1tion if •corroboration• mist be included in the •accoaplice warning• to a jury. The ruling does not 1eea to strike down all the other co1me>n law and atatutory provisions dealing with corroboration. ***** - 28 - IBCOLLBCrlOB I:. IWBllTS - USE I:. IDl'BIOO~ C&U.IRG IIO'OllWft' AS VITDSS 'lO CJJBSTIOll Biii Cll BASOllABLB AllJ> Pm>BABU: GIOUllDS FOR SWIWlillG UPOlllATIOll The Queen v. Jolliffe County Court of Westminster April 1982 1816154 New Westminster Registry No. the 20th of April 1 the accused was apprehended by police for impaired driving and refusing to give samples of his breath. The two count information was sworn on the 6th of September. The trial was held 23 months after the date of the alleged offence. The officers could not recall the details of the incidents and relied on their notebooks for their testimony. The officer who prepared the R.c.c. had a •specific independent recollection of preparing that report". This caused defence counsel to apply to have the informant called as a witness to assess the reasonable and probable grounds he swore be had to believe that the accused committed the alleged offences. The trial judge refused to grant the adjournment necessary to call the witness and the accused was convicted. Be appealed on the grounds that be should have been allowed to question the informant as the law* states that the onus is on the defence to show on the balance of probabilities that the informant did not properly inform himself. He had been deprived of this opportunity. On The County Court Judge agreed that the defence can call the informant for the purpose stated above. However, it applied to do so when the Crown closed its case. It is a judicial discretion whether to adjourn for the calling of additional witnesses. The defence had plenty of time to do so and the cases on this issue show that the appearance of informants are commonly applied for before or at the onset of trial, or with reasonable notice and not causing unnecessary delays. When informants are called by the defence, it is to challenge the jurisdiction of the Court as a fundamental isaue; after all, if the information is a nullity, the Court has nothing to act on as this document is the foundation of the charge and justifies the proceedings. In this case there was no allegation that there was no proper basis for laying the charge. Accordingly, the appeal was dismissed, and Conviction upheld. ***** * a. v. Peavoy 15 C.C.C. (2d) 97 - 29 - CUE OR COBTIOL OF .A IDIOR ftlllCLB Toevs v. The queen B. C. Court of Appeal CA 801099 February 1983 The accused was found asleep in the cab of his pick-up truck on private property. His head vaa near the passenger door, his buttocks under the ateering wheel ad his legs reaching the floor. The lower part of his body was in a aleeping bag. The accused had attended a party in the house aituate on the property where he vaa found. As he had too auch to drink, he had arranged for a friend who also was at the party, to drive him home. At around 1 :00 a.a. be entered his truck, placed the key in the ignition ao his stereo would work and went to aleep. At 5:15 a.m., police &potted the accused and took him in for breath tests which resulted in readings of 160 and 170 mg. This resulted in a conviction for •care or control while over 80 ag." which the accused appealed. A decision by the Supreme Court of Canada on the meaning of care or control* established that an intention to drive was not an essential element of the offence of "over 80 mg.". But the question raised in this case 1e: •can a person have care or control of a motor vehicle if his intention is to sleep in the vehicle rather than to drive it?" In regards to this, the Supreme Court of Canada said in the Ford case that intent to set the motor vehicle in aotion was not an essential ingredient to prove care or control. However, apparently, in view of Ford having started the car several times to stay warm, the Supreme Court had added : •care or control may be exercised without auch intent where an accused performs some acts or series of acts involving the use of the car, its fittings or equipment, auch as occurred in this case, whereby the vehicle uy unintentionally be aet in aotion creating the danger the aection is designed to prevent". The B. C. Court of Appeal concluded that the accused Toews did not have the care or control of hie truck. The Crown failed to establish * Ford v. The queen (1982) 65 c.c.c. (2d) 392. - 30 - the inference the accused intended to use the truck as a aotor vehicle - that is to have the care of control of it. As this •mtal element was not established, the appeal was allowed conviction was quashed. Comment: It is regrettable that the helpful Ford decision by the Supreme Court of Canada had to be tampered with and watered down. When reading the reasons for judgment it seems not unreasonable to assume that the B. C. Court of Appeal did all the maneuvering it could to avoid a conviction based on the application of a statutory presumption provision in circumstances for which it was apparently not intended. Well enough, should perhaps have been left alone. Nothing constructive seems to have resulted from this dispute of the application of the Ford decision; on the contrary, it has it less clear and, in B. C. at least, an unknown quantity. ***** - 31 - IYIDBllCI CODI Canada and aost of its provinces have legislated Evidence laVB which atipulate epecific rules of evidence. However, coneidering all the rules of evidence one will discover that what is contained in the Evidence Act is ainiscule as mat evidence rules exist at co1111on law cryatalized from judicial precedents or rules of the court. The Law Reform Commission of Canada addressed iteelf to the aultitude of evidence ·rules and recommended an Evidence Code for Canada. This was nearly a decade ago and, although the idea of a Code was eupported, particularly by the Bar Association, the euggested content came under heavy criticism. The idea did not gather dust and the Conference of Uniformity Commissioners were given a mandate to come up with a new draft. The work is now finished and is a report on evidence and is available in most court house libraries. Some fear that an Evidence Code is another step towards codification of all law and leaving less and less to common law. Codified law is simply not flexible enough while common law can adapt itself to contemporary eociety through judicial precedents. With codified law, issues based on semantics often cloud erita and facts. The reports on the common law system really did not justify codification. It seems consistent with the bureaucratic philosophy that in the absence of a written rule or policy, the matter cannot be dealt with. Nevertheless, reports indicate some intereating changes in the proposed rules of evidence as they relate to criminal law, particularly in the areas of statements, corroboration, alibi, expert evidence, and competence and compellability. The following are predictions aade by knowledgeable people of the interpretation of the new rules, in respect to rules eurrounding the ad11i11ibHity of etatement. It ie proposed that a •peraon in authority• be defined. To determine if a peraon to whom a statement is aade was in fact a person in authority, the belief of the accuaed at that t i • is important. The couru apply a aubjective rather than an objective teat. As long as the accueed did not believe that the person to whom he epoke was a peraon who had authority with reapect to proaecution, then, regardless of his poaition, the recipient of the atateaent ie not a peraon in authority. - 32 - This eubjective test bas been criticized on many occasions, and it seems that the proposed definition is a compromise between the two tests and it •includes aomeone whom the accused could reasonably have believed had authority with respect to the prosecution·. In relation to voluntariness, the proposed rules seem to make the test leBB severe. Its definition seems to suggest that the •operating mind'" test established by the Supreme Court of Canada in Horvath v. The Queen (see page 22 of Volume 7 of this publication) will no longer apply. The proposed evidence rules also call for a lesser burden of proof to show that a statement was voluntarily given. It provides that it must be proved on the balance of probabilities rather than beyond a reasonable doubt. When an accused testifies during a voir dire or in his defence, it is permitted that he be asked in cross-examination i f the statement he .made is true. The proposed Evidence Code prohibits this question. The argument has always been that when the Crown selects to adduce a state11ent in evidence, it does so to prove the truth of its content. If the statement is exculpatory and not believed, then it is possibly harmful to the accused's credibility. But it is the Crown's prerogative whether or not to adduce the statement. If the accused testified during the voir dire in the absence of the jury (the ones who mat determine if the content of the statement is to be believed) he does so in relation to the "voluntariness" only. The question at that stage is irrelevant. If he is asked the question when he testified in his defence, and the statement is inculpatory, then he is in a position of having to incriminate himself or collJDit purjury. In other words, the question deprives him from testifying on his own behalf. It is also suggested that Courts are allowed to consider the contents of statements to determine it they were made voluntarily. ***** More to follow in our next ~olumes. - 33 - POSSBSSIOll al ll>lJSIUUTIW: 1001.S UYDSK OllDS AID> 'llllt CllilTU OF UGBTS Regina v. Pugard County Court of Vancouver Regiatry December 1982 No. OC820806 Vancouver The accused was found in poaseasion of a pair of aocks, a acrewdriver, and a flashlight, in circuastances that gave rise to believe that these things were to be used for bouae-breaking. At the onset of his trial the defence counsel asked the Court what its obligation was under aection 309(1) C.C. which atates that in circumstances like these the proof lies with the accused to ahow (on the balance of probabilities) that the tools were not intended for auch use. Counsel, of course, submitted that the reverse onus was contrary to the presumption of innocence (s. ll(d) Charter of Jlights). ln Ontario and Manitoba a County Court Judge and a Provincial Court Judge J;especti vely*, found that it is too aabiguous for a accused to detenaine what evidence gives reasonable rise to the presumption. In other words, when does a accused have to prove a contrary intention? The County Court Judge held that whether the presumption arises is a question of law. lf the accused is in doubt if there is sufficient evidence for him to have to rebut the presumption, he simply -kes a aotion of '"no evidence" at the conclusion of the Crown's case. lf there is enough evidence for the trier of facts to draw the inference that house-breaking was the intended use, the aotion will aiaply be denied. The Court held that section 309(1) c.c. does not abrogate the Charter of llights and Freedoms. * a. •· Bol•• and a. •· lovdezuk. - to the beat of my knowledge unreported. - 34 - POSSBSSIOB OF S'l'OLBll nonan Regina v. Horsfield and Muir Vancouver Registry CC820642 Vancouver County Court, September 1982 Three days after a break-in of a home, by a party unknown, the two accused at tended at the apartment of a friend. Horsfield brought a colour T.V. set that was taken during the break-in. The accused Muir and the friend stayed at the apartment while Horsfield went out to replenish the beer stock. His driving caused police to chase him. Horsfield went to the apartment block and used the intercom to alert his friends to get rid of the T.V. as the police were on his heels. Muir took the T.V. down some back steps and secreted it at the rear of the apartment building among the trash cans. When caught, Muir admitted to have hidden the T.V. in response to Horsfield's request. He admitted to knowledge that Horsfield had taken the set in a break-in and had hidden it in a park from where both accused retrieved it on their way to the apartment. The accused were charged jointly with Break and Entering and possession of stolen property with a value in excess of $200.00. Firstly the Crown did not prove the value of the T. V. set and as a consequence, the charge was reduced to "possession under $200." Then the evidence adduced by means of Muir's statement that Horsfield had told him that he had committed the break-in, had no evidentiary value against Horsfield to prove the truth of its content. It is a well established dictum that whether or not persons are charged jointly• the confession or admiSBions of the one is not evidence against the other. This meant that there was no evidence that either of the accused had committed the break-in. However, the statement had full value to show knowledge on the part of Muir that the T. V. was stolen. Muir's defence counsel raised an interesting argument. He questioned whether his client's physical possession of the T. V. set (when he carried it out of the apartment and hid it behind the building) was a form of posseasion prohibited by law. Basing his arguments on pre•ioua judicial decisions• counsel submitted that possession for the purpose of disassociating oneself from a possession iaposed upon him, is not an unlawful poHesaion. For example• if there was a smash and grab and the pursued culprit forces the proceeds of his crillinal act into the bands of a innocent bystander then if that bystander disaaaociates hiuelf from the poHeHion by discarding theae proceeds• bis temporary possession is not an unlawful one. - 35 - The Court agreed with the viewa of defence counsel but held that where it 1a found as a fact that the purpose of the discarding vae to .asist the culprit, then the poaseaaion is culpable. Said the Court: "'I a11 satiefied from the circwutances that when Muir carried the televhion Ht froa the apartaent block and aecreted it behind the building he did · ao in order to aid and abet Horsfield, to evade detection by the authorities and to mecrete the itea. This was not a circumstance where posseHion was iaposed upon him unwillingly". Both accused acquitted of B & E Convicted of possession of stolen property ***** - 36 - IS 'IBB '"VAlllUG• A COllDinOll PDCEl>Bft !O .&mlISSUILITrf legina v. McKenna County Court of Westminster Westminster Registry No. 81-7014 November 1982 Hew During the trial for a drinking/driving offence, the Judge would not admit a statement made by the accused to the police officer because there was no evidence of a warning. Said the trial judge: '"But i f the accused is not warned, 1the Court must have llOme doubt in its mind . . ... . The accused was acquitted and the ruling on the admissibility was one of the grounds for appeal by the Crown. The County Court Judge said: "In my opinion that is incorrect. There is no basis for that conclusion. There is a bash for stating that it is desirable to give a warning, and the fact that a warning was not given is a factor to be considered in determining voluntariness" • AB there was no coersion, promise, or threats, the conversation was voluntary and the statement was admissible. **** * - 37 f AILillG Oil UPOSillG l.egina v. Bell County Court of Prince Rupert - Deceaber 1982 legistry No. 79/82 Prince Rupert The accused vas tried for •refusing• to comply with a demand for aamples of bis breath. He had accompanied the officer and did put his mouth on the 110uth-piece and apparently did blow. The aamples be gave were •imply inadequate to aalte an analyaes. The accuaed vu convicted and appealed claiming that perhaps he bad. •tailed· · to aupply an adequate aample of breath but ·he had not •refuaed• to coaply with the officer'• deaand. The semantics about the distinction between these two verbs is as old as the aection itself, and has been argued over and over again and reached several times the Courts of Appeal. Here are aome of the phrases used in response to defence submissions that there i• a distinction: •They create a single of fence l offence of non-compliance • • • • that is one •. • • it is difficult to aee any difference between auch 'refusal' and 'failure' • • • ·2 •Section 235(2) in our opinion, creates offence, that is the failure or refusal comply with a demand • • • ·3 an to •. • • only one single of fence was created by the aection and that the word 'refuses' is fully comprised within the word 'fails' ao that a refusal was a failure".4 The County Court Judge held and agreed that 'refusal' includes 'failure' but not the other way around; and that the words are not aynoniaous in circwutances as they were here. Therefore the infonaation alleging that the accuaed ref used to comply, did not aeea to provide the particulars of the incident which vu the baais for the charge. The Court held not to be coapelled to follow the precedents quoted uove u the facts were distinauiahable f rOll thoae found in this caae. Appeal allowed Conviction aet uide ***** 1 R. v. Kitcheaonia (1973) 12 c.c.c. (2d) 225 Saakatchewan Court of Appeal • 2 a. v. llacLennan (1973) 13 C.C.C. (2d) 217 Nova Scotia Supre• Court, Appeal Diviaion. 3 R. v. llacHeil (1978) 41 C.C.C. (2d) 46 Ontario Court of Appeal. 4 a. v. llacLennan (1973) 13 C.C.C. (2d) 217. 8. C. Court of Appeal. - 38 - ASSAULT - TIBSPASSIBG lllVS UPOllTDS legina v. Silber and Silber Vancouver Begstry CC820556 County Court of Vancouver September 1982 Kr. Hicks (representing a T.V. station) phoned Silber Sr., (one of the accused) at his picketed furniture store. The labour problems were apparently news worthy and Hicks suggested to televise the strike activities and interview customers. Silber Sr., aade it abundantly clear that he did not want Hicks on his property. Despite this, Hicks showed up three hours later with Kr. Chu, his camerman, and did as he had proposed over the phone. After alerting police, Silber went out and grabbed the 111.crophone out of Hicks' hands and said: •I told you to get off my property•. Hicks replied: "I told you I was not going to accept your deal•. A tussle ensued between the accused Silber Sr., and Hicks and the accused Silber Jr. and Chu. The object of the latter was to remove the film from the camera. As a result, father and son were charged with counts of assault and were acquitted. The Crown appealed. The trial judge had found that Hicks and Chu were trespassers; Hicks directly as he was told not to come onto the property and Chu impliedly. The Judge bad described the scene as a powder keg and said that the defiance by Hicks and Chu of the owner's wishes could well have provided the proverbial spark. Be bad found the actions by the two accused not surprising as "the law cannot expect them to wait and judge with nicety whether or not they should wait for their lawyers·. The trial judge held that it was hard to imagine a mre flagrant and blameworthy trespaasing and that the actions by the Gilberts were understandable. When the Crown submitted that the accused never gave the trespassers a chance to comply with their instructions, the Court replied that they were given a three hour chance when Hicks was told not to coae onto the property. The County Court Judge defined trespaHing as unlawful entry or atay on another man's land. He noted that improper use of aomeone else's land is included in trespassing. Section 41(1) c.c. provides that a trespasser may be re110ved if no more force than necessary is used, and if the trespasser overtly resists he assaults the person who is authorized. to remove him. The Crown contended that the object of the struggle was not exclusively to re110ve the trespa88er& but predoainently to seize their equipment. In such circuaatancea said the prosecutor, section 41(1) c.c. is not available. In other word1, the Crown argued that the accused had ulterior motives and were after the equipment rather than the reaoval of the trespassers. - 39 - The County Court held that had the •ole objective been to interfere with the property of the tre•paeeers then the owners (accused) would find themaelvea not protected by the aectlone of the Criminal Code. Bovever, where •uch interference 18 justified ad •imply ancillary to the removal of tbe tre•paaeers, the protection of the law la available to thea. With a warning that landowners cannot rip film out of the cameras of trespassers and 8eize them, and will find themselves facing criainal charges if they do eo without just cause, the County Court Judge held that in the circumstances as they presented themselves in this case, the accused were entitled to the protection provided by •ection 41 c.c. Appeal dismissed Acquittals upheld. ***** - 40 COB Oil COll'raOL Kcllwaine v. The Queen County Court of Vancouver Island, January 1983. Victoria Registry 22317 The Supreme Court of Canada decided in February 1982* that it is !Wt necessary to prove that a person had any intention of putting a motor vehicle in motion to be found having the care or control of that vehicle. Nor is s. 237's definition of care or control exhastive and the only means to show care or control. The accused Mcllwaine parked in a park and drank beer with his brother. Be was found by police asleep and slumped over the wheel. He was taken to the police station and "blew 1.4". Be was convicted and appealed. The accused had testified at his trial that, realizing he had too much to drink to be driving, he decided to stay right - where be was and sleep i t off. Therefore he had no intention to put his pick-up truck in motion. One Justice of the Supreme Court of Canada had in the Ford case elaborated a little more on the meaning of care and control. Be said that the person had to exercise the care or control in such a way "that the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent". The County Court Judge concluded this to mean: "Put in another way negligence in the care or control leading to or likely to lead to motion is the basis of the offence but there is no need to prove the accused intends to put the vehicle in motion". The accused being asleep when found, could hardly have had any intentions to drive. Therefore he had successfully rebutted the presumption of care or control under s. 237 c.c. The question remaining then is if the accused had care or control in these circumstances. To answer that, the Court had to consider if unintentional setting in m>tion was applicable here, despite the fact that the accused claimed that the ignition key was in his back pocket. Regardless of the location of the keys, the circW1Stances were such that it was possible that the truck was unintentionally put in motion. Appeal dismissed. Conviction upheld. ***** * Ford v. The queen (1982) 65 c.c.c. (2d) 392 - 41 - legina v. Johnny, B. c. Court of Appeal - March 1983 - CA810711 The accueed and one "'Billy"' were charged with eecond degree aurder of a woman but convicted of . .nalaughter. They mppealed. The Crown had adduced convenationa between the two euapects while they ·were held in a cell block. The interception was authorized by a Judge under the Criainal Code provieions (s. 178 12 C.C.). The accused Johnny based his mppeal on the cell-block being a place where interceptions of private communications are prohibited and for which no authorization can be granted (1. 178.13 c.c.). Be claimed that the cellblock was a "'place ordinarily used by a solicitor or by other solicitors for the purpose of consultation with clients"'. Two of the three Justices agreed with the trial judge and found his observations reasonable. lie had said that the days the two accueed were in the cell-block no solicitor used that part of the premises to interview the accused or anyone elae. Furthermore, be held that cells are normally utilized to detain persons and not for lawyers to interview clients. The third Justice said that the normal utilization of the cells to detain persons did not preclude them being used for lawyers to interview detainees. Be questioned the interpretation the trial Judge had given to the term "any other place ordinarily used by a solicitor'". lie felt that frequency of use was not neceHarily a 11eans to establish if the place was "'ordinarily used• for something. •ordinary use" is a fluid concept, he said. Although he felt that there was a wrong interpretation, he did not feel that his perceived error in law resulted in an error to admit the evidence obtained. He joined his brothers in disaissing the accused's mppeal. ***** - 42 - caoss DAllIJIA.TIOll ow CJ.AIMltD GOOD CllAliCDll The queen v. Wilson B. C. Court of Appeal - March 1983 CA 821147 It is a basic rule that where an accused claims good character the Crown may lead evidence to show bad character. When an accused puts his character in issue he is wide open to rebuttal evidence and/or cross exallination related to the subject of character. The accused was charged with rape and his aggressiveness became an issue. He called witnesses to say how free of violence he was, drunk or sober. When the accused took the stand he was questioned about him slapping around a woman who bad resisted his sexual advances. However, the Crown did not call this woman as it had concluded that she would be an untruthful and unreliable witness. In other words, the prosecutor did not have "reasonable grounds for thinking that the imputation conveyed by the question was well founded or true". The Court of Appeal was of the opinion that there is a rule that overrides the basic rule mentioned above. The cross examiner who makes a suggestion of prior wrong doing on the part of the accused must have a proper basis for doing so". If this was not so "there is a risk of unfair prejudice to the accused through a powerfully persuasive innuendo being wafted in to the jury box". In this case the prejudice was so grave that no direction of the trial judge could cure it. The Court suggested that in some cases a voire dire should be requested to avoid cases like this. Two of the three justices of the B. C. Court of Appeal directed a verdict of acquittal. ••••• - 43 - ID'USIBC 'l'O nDDUCE Dl.IVBl.'S LIClllCI - OBSftlJCTIOB legina v. White and White County Court of Prince Rupert December 1982 Ro. CC196/82 + CC173/82 A police officer found a car parked on private property (a lot belonging to an auto body •hop) with •everal occupants. A dance was ongoing in a nearby comaunity ball and the officer'• eole reason for checking the car was his concerns about the poBSibility that there vas liquor being consumed in a public place and that the person behind the wheel (care or control) was impaired. (At trial, there vas no evidence adduced of either these offences). The officer asked the accused Mord,s White who was sitting behind the wheel to produce his driver's licence. While be was in the process of complying, the accused Henry White, told Morris not to do eo. Morris .ccepted Henry's advice and both were arrested for obstructing a peace officer in the lawful perfonaance of bis duty. They appealed their convictions by the Provincial Court. The trial judge had found that t~ car was a public place under the Liquor Control and Licensing Act mid that the lot was one the public resorted to. He had also said, that under the Motor Vehicle Act, be would have to strain the definitions to hold that the car was on a highway. However, in view of the grounds for believing an offence under the Liquor Act was committed, the officer was justified in what he did. The County Court Judge held that there was no evidence that either one of the accused had driven or operated the car on a highway. Therefore, considering the wording of section 30 of the Motor Vehicle Act, the officer had no lawful reason to ask for the driver's licence~ The trial judge had found as a fact that the lot was a public place in respect to the liquor laws, but not a highway so as to demand the inspection of a driver's licence. Therefore, there was no obligation on Norris White to produce his driver's licence and Henry White's advice was proper. Therefore neither accused obstructed the constable. Appeal allowed Convictions qua•hed Comlent: -It seems an exercise in seuntica to uke a distinction between the definition of •public place• and that of a •highway• under our liquor and traffic lava respectively, and circuutance1 a they are in this case. The vehicle wu clearly in a public place and on a highway. The only obstacle ia that the obstruction was not baaed on a refu•al to identify - 44 - oneself to an officer who has reasonable and probable grounds to believe that an offence was co111Ditted, but whether or not in these circU11Stances a person in care and control of a aotor vehicle is obliged to produce his driver's licence. Assuming that the courts had found that the lot was a highway, would their views in regard to that obligation have been any different? It seems clear that the County Court Judge would have held that there was no such obligation in that section 30 K.V.R. only compels this for a person who is driving or operating the motor vehicle while it is on a highway. It see• that "care or control" should be added to the section, particularly in view of all the other documents that need only be produced when one drives or operates his car on the highway. A Billlilar problem aay be encountered with section 62 M. V.A. which also places all responsibility to remain at the scene of an accident on the driver of the cars involved. An example of that is seen in Regina v. Kirby County Court Vancouver Island February 1983 Victoria Reg. #60668. Returning from a picnic, Kr. Kirby and his wife stopped at a · friend's home. When they entered the friend's home the Kirby's saw that their car continued its journey without them. The car rolled across the street into a parked motor cycle. The accused (Kirby) had been drinking at the picnic and the owner of the mtorcycle was far from amused when he viewed the remains of bis motorized steed, as a lll&tter of fact he was •angry, distraught and belligerent". At the advice of his wife, the accused went into the friend'• home and claimed to have . done this as he feared the cyclist would become violent. The trial court had convicted the accused as he had failed, as the driver of a motor vehicle to have complied with section 62(2)(b) K.V.A. (colliding with an unattended .:>tor vehicle and not locating and notifying in writing the owner of name, address, etc.). The Court had found that the accused's fear was restricted to the cyclist calling the police and the probable discovery that the running away of the car and the accused's drinking had causal connections. The accused appealed his convictions and argued: 1. that he was not the driver when his car collided with the m>tor cycle; or if he was the driver; 2. that he had complied with section 62 M.V.A. as far as the belligerence of the cyclist perlllitted; and 3. that he had acted in due diligence. The trial judge found that the accused was the driver by any definition. Be had parked the car improperly and was responsible for it rolling away on - 45 - ite own. ... The County Court Judge found this finding erroneous in law. Subaection (2) of Hction 62 refere to the driver apecifically. If the Crown had charged the accused under aubaection (1), it would have far aore to argue about. It places the obligation not only on the driver but also the •operator or other per1on in charge of a vehicle·. Heedless to say, 10• aectious of the Act require a little aore attention from the drafters of legislation. Purtheraore the Court ought to .:>re often apply that aection of the Interpretation Act (Federal and Provincial) which atatea · that enactaent aist be given the broad and liberal interpretation it requires to aeet its object. It is difficult to judge, by reading the reasous for judgment, whether the charge was justified or not. However• these cases do Ht precedents that have devastating affects when the aections are used in circumstances for which they were designed. ***** - 46- CAR UCBSSIVB USE OF FORCE Ill SELF DEFEllCB AJDJllT 'IO IWISLADGllTD? PaOVOC&TIOH R. v. Faid Supreme Court of Canada March 1983 The accused and another known drug trafficker (W.) lived in a trailer together. W. was known to have '"a violent temper". During a party the accused was told that W. bad or was going to put a "contract" out on him. When the accused arrived home he asked W. if what he bad heard was true. A struggle resulted. The accused testified that w., after some blow being struck had attacked him with a long bladed boning knife. During the fight, to disarm W., the accused ended on top of W. on the chesterfield with the latter "growling like a wild animal". The accused hit w. on the back of the head to render him unconscious. This only increased W. 's rage. Finally the accused got the knife away from W. but lost control over him. On the side of the chesterfield was a spear gun and W. · was heading for it. To prevent this and its obvious consequences the accused stabbed W. twice that he could remember. The wounds caused W. 's death. The accused had removed all evidence of the homicide scene; he bad the rug cleaned , took the chesterfield to the dump and burned the body of W. at the ·side of an abandoned road. Two weeks later the accused was arrested for trafficking and when questioned about his partner's lot, he made a number of admissions in respect to facts surrounding the murder and said: "He ripped me off, he ripped everybody off, the fucker deserved it". The above related circumstances were the accused's version and testimony. The Crown implied that the 1111rder was the result of a dispute over money and to rebut the accused's claim of self defence they showed that W. was 5'9" and 170 lbs., while the accused is 6 1 3" and 240 lbs. A jury convicted the accused of second degree murder. The Alberta Court of Appeal ordered a new trial and the Crown appealed that decision to the Supreme Court of Canada. The Alberta Court of Appeal had reasoned that there was a "half way house" on this issue; something of a compromise, somewhat of a legal shelter. Aasuaing that a person has justification to def end himself but uses excessive force in doing so and does thereby unintentionally cause the death of the aggressor. The Alberta Court had said that in such circwutances the absolute defence of a elf defence is, of course, not available to the accused as he is not guiltless of any wrongdoing. However, be should not be guilty of murder, but ~have the '"halfway house shelter of manslaughter" available to hi11. - 47 - The theory by the Alberta Court found no favor in the Supreme Court of Canada. The highest Court in the land unaniaoualy decided that there vas llO justification in codified law for this propolition. rurtbet'llOre it •would require proof and co•plicated jury charges and would encourage juries to reach compromise verdicts to the prejudice of either the accused or the Crown·. The Court concluded that there aiaply was no partial justification for excessive force. For whatever is excessive, a person ia liable and the consequences (death in this case) causes the defender to lose the defence of justification under aectiQn 34 of the Criminal Code. In other words, the Supreme Court of Canada said that there is no partial justification, and the accused is wholely responsible for the killing. However, where it is shown that the excessive force was applied without the specific intent to cause death or bodily ham likely to cause death (lee aection 212(3)) then, of course, the act does not amount to aurder but manslaughter. This is also what the trial judge had explained to the jury. The Supreme Court of Canada held that the Jury was properly instructed and concluded that the members obviously had not believed the accused when he explained that he had stabbed the victim in the back but had not intended to kill or cause bodily harm likely to cause death. The Supreme Court of Canada said that the uncertainty of this law exists · only in the llinds of lawyers and not jurors. •This jury was told that intentional killing was murder and . unintentional killing was aanslaughter. They found Faid guilty of aurder. 1 aee no reason for suspecting that the jury could have convicted for airder while harbouring any reasonable doubt as to intent". The Court found that the instructions to the jury were accurate and that Alberta Court of Appeal was in error. Accused's appeal dismissed. Conviction of aecond degree aurder restored. Another utter capable of reducing mrder to unslaughter is provocation. Bovever, preaence of provocation by itself 1a 1 inadequate to do so. There llU8t be a wrongful act or insult that would cause any nonaal person, for tbe 110ment, not to be master of his own •ind. If in auch atate one acts on tbe audden, before there 1a time for bis pa88ion to cool, then, if his reaction to the insult or wrongful act causes the death of the one who provoked him, that aarder uy be reduced to unslaughter. Of course, Faid had to choose what defence to use. It is obvious that aixiag the defence of aelf defence with provocation is like attempting to llix oil with water. The control required for the foraer, to aeaaure the resiltance to the - 48 - aggression endured ao it is not excessive, is totally inconsistent with claiming not to have mastered yout own mind due to passion, rage and the like. Although the victim had delivered blowe to the accused, the accused had in his evidence claimed the contrary to all the emotions required to create provocation. To successfully raise provocation as a defence (which is only capable of reducing mirder to manslaughter) it has to be shown that the accused must have killed because he was provoked, ·not merely because provocation existed". Defence counsel raised the issue of provocation before the appeal courts and said that perhaps the jury should have also considered such possibility. Of course, whether there is evidence capable of concluding that the accused was provoked is a aatter of law and for the judge to decide; whether the accused was provoked is a matter of fact and for the jury to consider. In this case there was evidence of provocation, but none that the accused was provoked. *****