POLICE ACADEMY

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

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

IN MEMORIAL
On
February
28,
2004,
53-year-old
RCMP Corporal Jim
Galloway was shot
after gunfire erupted
at the scene of a
standoff at a home in
Spruce Grove, Alberta. Officers were originally
called to investigate a report of a bullet hole in a
vehicle. A resident told investigating officers
that there was an agitated man in a nearby
residence and he was armed. The RCMP
emergency response team was called in to seal
off the area.
The suspect attempted to leave the area in a
vehicle. Gunfire erupted and Corporal Galloway
and the suspect both sustained severe injuries.
They were taken to hospital by ambulance where
Corporal Galloway and the suspect were
pronounced dead.
Corporal Galloway joined the RCMP in 1969 and
its police dog section in 1975. Among his many
personal initiatives to aid the search and rescue
(SAR) community was his work in helping Alberta
search dog teams form a province-wide
association, called the RCMP Civilian Search and
Rescue Service Dog Association, and teaching
and implementing standards for SAR dog teams.
In 2002, Corporal Galloway
Certificate of Achievement
in Halifax at SARSCENE,
the annual search and
rescue workshop sponsored
by the National Search and
Rescue Secretariat.

Volume 4 Issue 2
March/April 2004

received

a

Corporal Galloway had 35 years of service with
the RCMP and is survived by his wife and family.
This information provided by the Officer Down
Memorial Page available at www.odmp.org/canada

‘ACTIVE’ POLICE
SUPERVISION MOST
INFLUENTIAL
If police supervisors
want to have the most
influence
on
their
subordinates,
they
should
consider
leading by example and
working alongside them. In a recent U.S.
Department of Justice publication (June 2003)
by Dr. Robin Shepard Engel entitled How Police

Supervisory Styles Influence Patrol Officer
Behavior, the author examined how much

influence four supervisory styles—traditional,
innovative, supportive, and active—had on
subordinate performance. “The most important
finding was that style or quality of field
supervision can significantly influence patrol
officer behaviour, quite apart from quantity of
supervision,” said the report.

The traditional supervisor expects aggressive
enforcement, rather than community oriented
activities, and is more likely to take over
encounters with citizens or instruct officers how
to handle situations. They are “highly task
oriented and expect subordinates to produce
measurable outcomes—particularly arrests and
citations—along
with
paperwork
and
documentation.” As well, traditional supervisors
are more likely to punish, rather than reward,

2

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Volume 4 Issue 2
March/April 2004

HIGHLIGHTS IN THIS ISSUE
Pg.
1

In Memorial
‘Active’ Police Supervision Most Influential

1

Strip Searches:
Essentials

7

Uncovering

the

Bare

Mediation Skills for the Law Enforcement
Supervisor

19

Patrols on the Wild Side: Where Facts are
Often Funnier than Fiction

34

Finding Fun in Fitness

44

Straight Shootin’ from the Bench

45

Officers Down

49

Police Leadership
Sponsors

2004

Conference

50

Plus 20 Case Summaries
Unless otherwise noted, all articles are authored by
Sgt. Mike Novakowski, MA (Abbotsford Police). The
articles contained herein are provided for information
purposes only and are not to be construed as legal or
other professional advice. The opinions expressed are
not necessarily the opinions of the Justice Institute of
British Columbia. “In Service: 10-8” welcomes your
comments on or contributions to this newsletter. If you
would like to be added to our electronic distribution list
contact Sgt. Mike Novakowski at the JIBC Police
Academy
at
(604)
528-5733
or
e-mail
mnovakowski@jibc.bc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases – Periodicals.
I. Justice Institute of British Columbia. Police Academy.
II. Title: In service, 10-8. III. Title: In service, ten - eight.

Volume 4 Issue 2
March/April 2004

and their ultimate concern
subordinate behaviour.

is

controlling

Innovative
supervisors
tend
to
form
relationships and have more positive views of
subordinates. They are not very task orientated
but generally encourage new police methods and
philosophies, like community policing and problem
solving efforts, through coaching, mentoring, and
facilitating. Innovative supervisors are more
likely to delegate decision making, rather than
take over situations, and are less concerned with
enforcing rules and regulations than the
traditional supervisor.
Supportive supervisors provide inspiration and
protect subordinates from unfair discipline and
criticism. They “are less concerned with
enforcing rules and regulations, dealing with
paperwork, or ensuring that officers do their
work. They may encourage officers through
praise and recognition, act as counsellors, or
display concern for subordinates’ personal and
professional well-being.”
Active supervisors perform a dual role—street
officer and supervisor. They are heavily involved
in field operations, engage in patrol work
themselves, and embrace a philosophy of leading
by example. “These supervisors attempt to
strike a balance between being active in the field
and controlling subordinate behaviour through
constant, direct supervision. Supervisors with an
active style are characterized by directive
decision making, a strong sense of supervisory
power, and a relatively positive view of
subordinates”, but are sometimes viewed as
micromanagers.
The study found that active supervisors had the
most influence over patrol officer behaviour,
including:
•
•
•

Less time per shift on administrative tasks;
More time per shift on problem solving and
other community-policing activities;
More time per shift on proactive activities;
and

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3

•

Subordinates are twice as likely to use force
against suspects.

The number of arrests or citations was not
affected by supervisory style. Rather, the longer
a supervisor was on scene, the more likely an
arrest was to occur.
As the study noted, “An ‘active’ supervisory
style—involving leading by example—seems to be
the most influential despite potential drawbacks.
Indeed, active supervisors appear to be crucial
to the implementation of organizational goals.”
A complete copy of this report is available from
the U.S. Department of Justice website at
www.ncjrs.org/pdffiles1/nij/194078.pdf.

FORCING LAWYER RISKS
ADMISSIBILITY OF BTA
CERTIFICATE
R. v. Hesketh, 2003 BCPC 173
A police officer arrested the
accused for impaired driving
and read him his s.10 Charter
rights,
the
breathalyzer
demand, and police warning. He
acknowledged
understanding
and
was
transported to the police station where he was
asked if he wanted to contact a lawyer. He
replied, “Don’t need one. No way. No breath
samples, period.” The officer asked again
whether he wanted a lawyer and the accused
replied, “What’s he going to do for me?”, while
shaking his head negatively. A call was
nevertheless made to legal aid and he was placed
alone in a telephone room to speak to counsel.
Two breath samples were subsequently obtained.
The time taken between arrival at the station
and the first sample of breath, including the
time necessary to facilitate contact with
counsel, was about half an hour.
The accused was charged with impaired driving
and over 80mg%. At his trial in British Columbia
Provincial Court the accused argued that he had

4

twice unequivocally, once by words and once by
gesture, indicated he did not want to speak to a
lawyer. In his view, the police did not respect his
decision not to exercise his right to counsel and
therefore, by taking the time to facilitate
contact with a lawyer, did not take his breath
samples as soon as practicable as required by the
breath demand section of the Criminal Code.
Justice Lenaghan agreed. He found the officer
acted contrary to the clearly expressed decision
of the accused and unjustifiably delayed the
taking of the breath samples. Although the
officer was acting in good faith by trying to act
in the accused’s best interests, “the right to
counsel is an individual constitutional right and
that the decision to exercise it or not to
exercise it is one that is exclusively that of the
subject individual. It cannot be appropriated by
another person, regardless of how wellintentioned that other person might be”, ruled
the judge. The certificate of qualified technician
was excluded as evidence because the breath
samples were not taken as soon as practicable.
Complete case available at www.provincialcourt.bc.ca

CANINE USE VIOLATES

CHARTER

R. v. Yuen, 2003 ABQB 776
The accused, a suspect in
transporting drugs, arrived at
the Calgary airport on a flight
from
Vancouver.
Police
surveilled him as he departed the plane and he
was eventually approached when he exited the
departures level at the airport. He was asked for
his plane ticket while a police dog sniffed his
carry-on baggage that he had placed on the
ground. The dog made a positive indication for
narcotics on the bag and also showed an interest
in the accused himself. He was arrested and
provided his Charter right to counsel, but
nothing was found in his bag. Police did, though,
locate 495 grams of cocaine wrapped in plastic
around the accused’s midsection. He was charged

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Volume 4 Issue 2
March/April 2004

with possession of cocaine for the purpose of
trafficking.
At his trial in the Alberta Court of Queen’s
Bench, the accused argued that his rights under
the Charter had been infringed. Justice Phillips
found that the police had detained the accused
when he was stopped and asked for his ticket.
However, this detention was lawful for an
investigative purpose. The police had an
articulable cause to detain him based on the
information they had on him and his subsequent
activities after arriving at the airport.
The warrantless dog sniff however, was an
unreasonable search under s.8 of the Charter.
“The police…may conduct a brief, minimally
intrusive detention, such as asking to see one’s
plane ticket…but the law does not go so far as to
their using a drug detection dog to search for
contraband (such as drugs), where there is no
concern of officer safety,” said the judge.
Without the dog sniff, the police did not have
reasonable grounds to arrest. Therefore, the
arrest was tainted and the common law power of
searching incident to arrest could not be used to
justify the finding of the drugs. Despite the
Charter breach, the evidence was nonetheless
admitted under s.24(2) because its admission
would not bring the administration of justice into
disrepute.
Complete case available at www.albertacourts.ab.ca

ASD DELAY REASONABLE, BUT
DEPENDS ON CIRCUMSTANCES
R. v. Ritchie, 2004 SKCA 9
The police stopped the accused
when he made a turn from the
wrong lane and slowed to a near
stop at a green light. He had an
odour of alcohol on his breath, slurred speech,
and was unsteady on his feet. A police officer
demanded he provide a sample of his breath into
an approved screening device (ASD) under
s.254(2) of the Criminal Code, but had to radio

Volume 4 Issue 2
March/April 2004

for one to be brought to the scene. During this
contact, the accused was uncooperative and
made repeated demands as to his “options”. It
took 11 minutes for the screening device to
arrive, but the accused refused to provide a
sample. He was arrested, told of his right to a
lawyer, and charged with impaired driving and
failing to provide a breath sample.
At his trial in Saskatchewan Provincial Court the
accused was acquitted of the impaired driving
charge but was convicted of failing to provide a
sample. He argued that the 11 minute delay while
waiting for the arrival of the ASD did not
comply with the requirement that the sample be
taken “forthwith”. The judge disagreed,
concluding that “forthwith” does not mean
immediately. In his view, the section allows for
some flexibility and the police acted in good
faith. However, the conviction was overturned by
the Saskatchewan Court of Queen’s Bench. The
Queen’s Bench justice interpreted the word
“forthwith” to mean immediately—thus the police
did not comply with the demand section.
Furthermore, she ruled the delay provided an
opportunity for the accused to be advised of his
right to counsel while they waited for the ASD
to arrive, or alternatively, the police could have
transported him to the station for an intoxilyzer
test, which was only 2 blocks away. The Crown
appealed to Saskatchewan’s top court.
In a unanimous judgment, the Saskatchewan
Court of Appeal reinstated the conviction. After
reviewing case law, Justice Sherstobitoff found
the word “forthwith” was not synonymous with
“immediately”. Rather, it means “as soon as
possible”, which will depend on the all
circumstances. Included in these circumstances
is whether “there is any realistic possibility that
the subject could successfully contact counsel
and get legal advice.” In this case, the
Saskatchewan Court of Appeal ruled it was open
to the trial judge to conclude that the 11-minute
delay from the time the demand was made until
the ASD arrival was reasonable and satisfied the
meaning of forthwith. As for advising the

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5

accused of his right to counsel, the court noted
that there was no means available at the scene
by which the accused could communicate with a
lawyer. Taking him to the station for an
intoxilyzer test, as suggested by the Queen’s
Bench justice, was also not an option. An ASD
demand only requires a reasonable suspicion, but
an intoxilyzer demand requires reasonable and
probable grounds for which, absent an ASD
result, there was no evidence.
Complete case available at www.canlii.org

PRIVACY NOT BREACHED BY
PRESENCE OF VIDEO CAMERA
R. v. Cairns,
(2004) Docket:C39952 (OntCA)
The accused failed a roadside
screening test and was taken to
the police detachment for a
breath sample. After police
arranged contact with duty counsel, she was
placed in the holding cell area equipped with a
video camera and spoke in private for three to
five minutes. The camera was not capable of
recording audio and was not on when the accused
was in the room, but she was not told of this.
Subsequently. She provided two breath samples
of 138mg% and was charged.
At her trial in the Ontario Court of Justice, the
accused argued that her right to counsel under
s.10(b) of the Charter had been violated.
Although she did not testify that the camera’s
presence affected her conversation with duty
counsel, she did say she believed the police were
watching and listening to her. The judge
concluded that the accused had not satisfied the
constitutional burden in establishing she was not
given privacy. In his view, there was no evidence
the camera was on, that the police were
watching, or that her conversation could be
overheard. Her appeal to the Ontario Superior
Court of Justice was dismissed, but she appealed
further to the Ontario Court of Appeal.

6

Ontario’s highest court affirmed the earlier
judgments and dismissed the appeal. The right
to counsel under s.10 of the Charter includes the
right to privacy during the conversation with a
lawyer. In this case, there was no actual breach
of the accused’s privacy—the police could not
and did not overhear her speaking with duty
counsel. However, that does not end the enquiry.
It is nonetheless possible to establish a breach,
if the accused could satisfy the court that she
reasonably believed, based on the circumstances,
that she could not consult with a lawyer in
private.
In this case, the presence of the camera by
itself was insufficient to establish a perceived
breach. The accused did not ask about the
status of the camera nor tell the police that she
had concerns about her privacy. Duty counsel did
not complain and she did not suggest that her
communication with counsel was hampered. The
Ontario Court of Appeal agreed with the trial
judge that the accused failed to satisfy the
burden, on a balance of probabilities, that her
right to counsel was infringed.
Complete case available at www.ontariocourts.on.ca

PRISONER’s PRIVACY IN
EFFECTS GREATLY REDUCED
R. v. Blais,
(2004) Docket:C38311 (OntCA)
The accused was arrested by
police and held at a detention
centre. His personal effects
were seized by jail staff and
placed in a sealed, but transparent plastic bag.
Sometime later, a detective went to the
detention center and viewed the accused’s
belongings without opening the bag. He saw a
key, which resembled another key taken from
one of his co-accused that opened the door to a
residence where stolen property was found. The
detective returned a second time, compared the
key again without opening the bag, and satisfied
himself it was likely the same key. A search

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Volume 4 Issue 2
March/April 2004

warrant was subsequently obtained and the key
was seized. The key, which formed part of the
overall evidence, was admitted and the accused
was convicted in Ontario’s Superior Court of
Justice.
The accused appealed his conviction to the
Ontario Court of Appeal arguing, in part, that
the two warrantless inspections of his effects
amounted to unreasonable searches and tainted
the search warrant used to obtain the key. In his
view, the evidence should have been excluded
under s.24(2) of the Charter.
The existence and degree of a reasonable
expectation of privacy depends on the “totality
of the circumstances”, including presence at the
time of search, possession or control, ownership,
or historical use of the property or place
searched, ability to regulate access to the place,
and the reasonableness of any subjective
expectation. In dismissing the appeal on behalf
of the court, Justice Rosenberg concluded that
once the accused’s belongings had been lawfully
seized by correctional authorities, his privacy
expectation in those items was greatly reduced.
He stated:
[The accused’] expectation of privacy was that
the state would preserve the goods and return
them to him upon his release. He could not
reasonably expect that agents of the state
would not inspect those goods, although he
could expect that the police would obtain a
search warrant before actually taking them
out of the possession of the gaoler who was
under a duty to safeguard them. This is
exactly what [the police] did in this case and I
therefore see no violation of s. 8.

Moreover, even if there was a breach of the
accused’s privacy expectation, the court ruled the
evidence was nonetheless admissible because the
officer acted in good faith and tried to comply
with the law.
Complete case available at www.ontariocourts.on.ca

STRIP SEARCHES:
UNCOVERING THE BARE
ESSENTIALS1
Personal searches of
arrestees vary by degree
of intrusiveness. They
range from pat down or
frisk searches, through
strip searches, to body
cavity searches. They do
not, however, go so far
as to justify the forced seizure of bodily
samples from persons2. Like many Charter issues,
there are competing interests. With personal
searches the privacy interest of the individual
collides with law enforcement’s interest in
finding evidence and ensuring safety.
As a general rule, the more intrusive or affront
to human dignity that a search is, the greater
the objective justification required. Moreover,
the police must minimize the interference
necessary to achieve their goals commensurate
with respecting the privacy and dignity of the
individual by conducting the strip search in a
reasonable manner.

What is a Strip Search?
In R. v. Golden 2001 SCC 83, the Supreme Court
of Canada adopted the following definition of a
“strip search”:
[T]he removal or rearrangement of some or all
of the clothing of a person so as to permit a
visual inspection of a person’s private areas,
namely genitals, buttocks, breasts (in the case
of female), or undergarments.

Not all removal of clothing, however, will amount
to a “strip search”. For example, in R. v.
Kitaitchik, (2002) Docket: C32740 (OntCA), the
Ontario Court of Appeal reviewed police action in
seizing the accused’s clothing for a murder
1

A similar article has appeared in both the Blue Line (February 2004) and The
Thin Blue Line (Vol. 3 Issue 2) publications.
2
R. v. Stillman [1997] 1 S.C.R. 607 (S.C.C.)

Volume 4 Issue 2
March/April 2004

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7

investigation. The day after his arrest, the
accused was told to remove all of his clothing and
he was immediately given a fresh set of his own
clothing. The seizure occurred in a private room
with only one other person present, no force or
intimidation was used, and no attempt was made
to examine his body. While reviewing the trial
judge’s admission of the clothing under s.24(2) of
the Charter, Justice Doherty found that the
accused had not been strip searched as described
in Golden. He stated, “While the seizure of his
clothing was clearly an intrusive act, it was not
akin to stripping him for the purpose of viewing or
examining his most private areas.”

Can an Arrestee be Strip Searched?
Strip searches can properly be conducted as an
incident to arrest. However, although a search
incidental to arrest does not generally require
reasonable grounds beyond the grounds necessary
to support the arrest, a strip search is an
exception to this common law rule. Strip searches
represent a significant invasion of privacy, and
are often humiliating, degrading, and traumatic
experiences. Before undertaking a strip search,
the police must possess reasonable grounds to
warrant the search independent from the
grounds justifying the arrest. Strip searches
carried out as a matter of routine or policy,
abusively, or for the purpose of humiliating or
punishing the arrestee will be unreasonable.

The Golden Nuggets
In Golden the police strip searched the accused
in a sandwich shop after he was arrested for
making a drug transaction. He had initially
resisted the efforts of the police to remove 10
grams of crack cocaine contained in a plastic
wrap that he was holding between his buttocks
by flexing his muscles. He was eventually forced
to lie face down on the floor with his pants and
underwear pulled down to his knees. After
Golden accidentally defecated, an officer was
able to remove the drugs when Golden relaxed
his buttocks. He was transported to the police

8

station where he was again strip searched.
Golden was convicted at trial of possession of a
narcotic for the purpose of trafficking, a
decision upheld by the Ontario Court of Appeal.
However, on further appeal the Supreme Court
of Canada found the search unreasonable and a
violation of Golden’s rights under s.8 of the
Charter to be secure against unreasonable
search and seizure.
As a result of this case, the following principles
concerning strip searches emerged:
The common law power to search incidental
to arrest does include the power to strip
search.
Although permissible as an incident to
arrest, strip searches are presumptively
unreasonable and the onus lies on the police
to justify the strip search.
Strip searches must be conducted in a
reasonable manner. The physical manner or
method of the search must be carried out in
a just and proper fashion. The search must
not be abusive and the scope of the intrusion
must be proportionate to the objectives of
the search and other circumstances of the
situation. In deciding whether the manner in
which a strip search was conducted meets
the constitutional requirements of s.8 of the
Charter, the following questions provide
guidance:
•
•
•
•
•
•
•

www.jibc.bc.ca

Was the search conducted at the police
station, if not, why?
Was the health and safety of all involved
ensured?
Was the search authorized by a
supervisor?
Was the officer the same gender as the
arrestee?
Was the number of officers involved in
the search reasonable?
Was the minimum force necessary used?
Was the search conducted in private so
others could not observe?

Volume 4 Issue 2
March/April 2004

•
•

•
•

•

Was the search conducted as quickly as
possible?
Was the search conducted in a fashion
that ensures a person is not completely
undressed at any one time?
Was the search only a visual inspection
or was there physical contact?
Was the arrestee provided the option of
self-removal or medical assistance if a
weapon or evidence is observed in a body
cavity?
Was a proper record of the reasons and
manner of search kept?

Strip searches are inherently humiliating and
degrading regardless of the manner in which
they are conducted and therefore cannot be
carried out as a matter of routine or policy.
Strip searches performed routinely or under
policy will not be rendered reasonable unless
there is a compelling reason justified in the
circumstances.
There is a distinction between strip searches
on arrest and strip searches related to
safety in full custodial settings, such as a
prison. The appropriateness of routine strip
searches of individuals entering into a prison
population cannot be used to justify strip
searches of individuals briefly detained by
police or held overnight in cells. Although
police officers have legitimate concerns that
short-term detainees may conceal weapons,
these concerns cannot justify routine strip
searches of all arrestees regardless of the
particular circumstances surrounding the
arrest and must be addressed on a case-bycase basis.
Strip searches are to be generally conducted
at a police station except in cases of exigent
circumstances where the police have
reasonable grounds to believe that the
search is necessary in the field such as an
urgency to search for weapons that could be
used to harm the officer, others, or the
arrestee.

Volume 4 Issue 2
March/April 2004

A person should be provided the opportunity
to remove items themselves or the
assistance or advice of trained medical
professionals should be sought to ensure
material can be safely removed.
When the reasonableness of a strip search is
challenged, the Crown (police) bears the onus
of proving on a balance of probabilities that
it was warranted:
•

In the case of strip searches in the
field, the police must demonstrate
reasonable grounds to both justify the
arrest and the strip search, exigent
circumstances, and that the search was
conducted in a reasonable manner.

•

In the case of strip searches at the
police
station,
the
police
must
demonstrate reasonable grounds to both
justify the arrest and the strip search,
and that the search was conducted in a
reasonable
manner.
Exigent
circumstances need not be proven.

Following the Golden Thread
How has the reasoning in Golden since been
applied? What follows are a number of recent
cases where courts have considered the
Supreme Court of Canada’ s judgment.
In R. v. B.B., 2002 BCCA 388, the accused
appealed his conviction after a police officer
detained him driving a motor vehicle under the
Controlled Drugs and Substances Act and
conducted a strip search by asking him to take
down his pants and underwear. He remained
seated in the car in a very dark area where
there was little traffic and the officer stood in
the open door of the car between the accused
and anyone who may come by. The officer found
a plastic baggie containing nine flaps of cocaine
in the accused’s genital area.
The officer testified he conducted the strip
search in this fashion because (1) if the
information had turned out to be incorrect, the

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9

accused would be on his way and would not have
to be taken down to the station to be searched,
(2) it was very busy and there was a limited
number of officers working, and (3) the need to
protect the evidence from possible destruction
by the accused during the drive to the station.
In ruling that the accused’s s.8 Charter right
had been violated, the British Columbia Court of
Appeal stated:
[T]he reasons [the officer] gave for strip
searching [the accused] at the scene, rather
than at the police station did not meet the
requirements for a lawful strip search as an
incident of arrest set forth in Golden. It
cannot be justification for a strip search in
the field that, if the search turns out to be
negative, the citizen searched can then go on
his or her way. This rationale suggests that a
strip search is really a way of doing detained
citizens a favour by saving them a possible
trip to the police station. I think it is fair to
say that the majority of citizens would
rather be spared the favour. In fact, the
evidence here is to the effect that [the
officer] was motivated by the desire to save
himself a trip to the police station, if
possible, in order to avoid the time and paper
work which such a trip would involve. Had
there been evidence of a significant need for
his services at the time of this arrest,
beyond the usual requirements of patrol duty,
that would have been a valid consideration in
determining whether exigent circumstances
existed which justified a search in the field.
There was, however, no such evidence of
exigent circumstances here. Further, there
is no evidence of a concern that [the accused]
might be armed; nor is there any persuasive
evidence that [the accused] could have
disposed of the cocaine while being taken
from his car to the police station.
Presumably he would have been handcuffed in
such a manner as to prevent him from
removing anything from his pants. He would
also have been in the custody of [the officer]
and in the company of the ride-along, who
could have kept him under observation for
the short drive to the police station.

10

However, the evidence was admitted under
s.24(2) because the police protected the
accused’s privacy interest as best they could
under the circumstances and did not have the
benefit of Golden at the time.
In Ilnicki v. MacLeod, 2003 ABQB 465, the
plaintiff brought an action against the police
alleging his Charter rights were violated,
including a s.8 breach when he was strip
searched. The plaintiff had been arrested by
police on an unendorsed warrant for no
insurance. He was taken to the police station
where he was subjected to a strip search, which
he resisted. A wrist lock was applied and the
accused subsequently sustained a strain to his
arm. Although the arrest was lawful, Justice
Acton found the strip search unnecessary and
unreasonable in the circumstances. The
plaintiff’s custody was a short term detention
like the type mentioned in Golden. Furthermore,
the use of force was inappropriate. No other
alternative actions were attempted, like warning
him first that force would be applied if he did
not cooperate, telling him he would have to stay
in the search room until he complied, or
consulting with the sergeant about how to gain
compliance. As a result, the plaintiff was
awarded $5,000 for the indignities of the strip
search and $6,000 for the arm strain.
In R. v. Pringle, 2003 ABPC 7, the accused was
arrested following his erratic driving and for
evading police. He was transported to the police
station where he deliberately avoided providing a
breath sample so the 2-hour limit would expire.
He allegedly struck a police officer and was sent
to the Edmonton Police Service downtown
division where he was routinely strip searched
and lodged in a holding cell until his release,
rather than being released as originally intended.
The accused was charged with impaired driving,
refusal, failing to stop for police, and assaulting
a police officer. Relying on Golden, Justice
Lefever ruled that an arbitrary policy for
conducting strip searches without information
that the detainee may be carrying drugs or a

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Volume 4 Issue 2
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weapon is unjustified. In this case, the accused
was sent downtown to teach him a lesson and
punish and humiliate him by subjecting him to a
degrading strip search. It was “high handed and
without lawful justification” and a “gross abuse
of the police power of detention”. The accused
was acquitted of all charges.
In R. v. Dispersio, [2003] O.J. No. 2917 (OntCJ),
the accused was arrested after he failed a
roadside screening device. He was transported
to the police station where he also failed
breathalyzer tests. Since he refused to provide
his correct address and indicated that he would
not attend court, he was taken to the police
detention facility. While there, he was strip
searched by an officer prior to being lodged in
cells where he would be held for a bail hearing.
The officer conceded that he had no specific
reasons to suspect drugs or weapons were
concealed and testified that he did the search
for safety reasons because of his own individual
practice, not as part of any departmental policy.
The accused undressed himself and was never
completely without clothes. Justice Takach
found it difficult to distinguish between shortterm detainees and those entering a larger
prison population. In the judge’s view, the
concern for prisoner and officer safety is
identical for both short term and long term
custody and the failure to search temporarily
detained individuals creates the same danger.
“As an aside, whether lodged for short term or
long term, there is a significant public interest in
protecting a suspect not just from others,
including other inmates and those in authority,
but as well from the suspect himself. It is not
unknown that prisoners lodged for a short term
have harmed themselves or even taken their own
lives”, said the judge. In this case the search
was held to be reasonable.

In R. v. Agostinelli, [2002] O.J. No. 5008
(OntCJ), the accused was arrested for impaired
driving and transported to the police station for
breathalyzer samples. After providing two
samples, the accused was strip searched in a

Volume 4 Issue 2
March/April 2004

hallway in the presence of two officers, without
being told why. The area of the search was not
private and one where others might see what was
happening. Although he was not touched by the
police, he lowered his pants and underwear and
made a complete turn. However, there were no
reasonable grounds the accused had concealed
weapons, evidence, or instruments. The judge
found that the police were following a rule that
all persons be stripped before being lodged in a
cell. As a result, the court concluded there was
no compelling reason for the search and that it
was not reasonable. The search took on an
element of punishment; designed to humiliate,
demean, and intimidate. The accused’s charges
were stayed.
In R. v. Keewatin, 2003 ABPC 67, the accused
was arrested on an outstanding provincial
warrant for being drunk in a public place. He was
subjected to a cursory search, handcuffed,
transported to the police station, and placed in a
holding cell. The female officer decided to send
the accused to the downtown detention facility
for a bail hearing, but first had him submit to a
strip search before a male officer for safety
reasons. The search took place in the accused’s
cell and he was asked to remove his clothes.
During this process, the officer saw a bulge the
size of a golf ball containing crack cocaine in one
of the accused’s socks. The strip search
continued but no other contraband was found.
Although the manner of the search was handled
in an exemplary fashion, Justice McNab ruled
that it was nonetheless unreasonable. A more
thorough hands-on, pat down search should have
been conducted before jumping to the strip
search. If this had occurred, the cocaine would
have been found and at that point a strip search
would have been far more defensible. Blindly
following a policy without considering the
particular circumstances of a case does not make
the strip search either necessary or lawful. The
cocaine was excluded as evidence.
In R. v. Hornick, [2002] O.J. No. 1170 (OntCJ),
five male police officers raided a private event

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11

to conduct a liquor inspection where only women
were gathered in varying states of undress to
explore their sexuality. Two female undercover
officers had earlier entered the premises and
observed breaches of the provincial Liquor
Licence Act. Justice Hryn concluded that the
circumstances in this case were analogous to a
strip search, even though the police did not ask
the patrons to remove their clothing. Although
the police had the authority to enter and
conduct a liquor inspection, the way the police
carried it out was unreasonable. Male officers
were used when the attendees would reasonably
expect that men would not be present. The
police knew the patrons were in various stages of
undress and there was no announcement or delay
prior to entry, which would have allowed patrons
to get their clothing. There was no urgency nor
was there any attempt to have female police
officers enter. As a result, all the evidence was
excluded including the female undercover
officers’ observations made before the police
entry.
In R. v. S.F. & J.L., [2003] O.J. No. 92 (OntCJ),
two young offender females were arrested for a
month old robbery after they attended the
police station in company of their parents at the
request of the police. Both girls were held for
judicial release and subjected to the booking
protocol that required a strip search to
determine whether they were hiding any weapons
or contraband. Up until this point no search, not
even a minimally intrusive frisk search, had been
conducted. The strip search was overseen by a
female officer in an area designed to provide a
measure of privacy, but was partially captured on
surveillance videotape. The search screen
intended to afford privacy was not high enough
and the girls’ breasts and upper bodies were
videoed. Nothing was found during the search.
Justice Katarynych concluded that even though
the police were concerned with safety, there
were no reasonable grounds to believe that
either girl posed a safety concern. The police
response in this case did not reflect the specific

12

circumstances that existed and the strip search
was completely unnecessary. Furthermore, the
manner in which the search was conducted was
also unreasonable. Firstly, no pat-down search
was conducted prior to the strip search. This
left the girls more vulnerable than necessary
because a frisk search may have been sufficient
to address police concerns. Without it, the
means to ascertain whether there was in fact a
need for a more intrusive search was bypassed.
Secondly, a portion of their naked body was
captured on videotape, which resulted in
“excruciating embarrassment”. Consequently, the
charges were stayed.
In R. v. A.B., [2003] O.J. No. 2010 (OntSCJ), the
accused was arrested for forcible confinement
and assault after police responded to a 911 call
and found his wife tied up with tape on her mouth.
He was frisk searched at the scene and
transported to the police station where he was
strip searched by a lone male officer in a small
room as part of a routine procedure prior to being
placed in the holding cells. He was also strip
searched again at the courthouse the next
morning. At his provincial court trial the judge
found the first search reasonable without
considering the distinction between persons held
at the police station and those going to court or
jail. The second courthouse search, however, was
ruled unreasonable because it was long after the
arrest and was not based on any particular
concern linked to the accused. Despite this
Charter breach the accused was convicted, but
appealed arguing, in part, that the first strip
search was also unreasonable. Appeal Justice
Durno of the Ontario Superior Court of Justice
concluded that the first search was conducted as
a matter of routine or policy and found the judge
erred in failing to distinguish between station
house detentions and those entering a larger
population. However, in applying Golden, the court
was “not persuaded that one strip search of those
who will be attending court cells, in itself, is
unreasonable, provided the search is conducted in
a reasonable manner.” The first strip search was

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March/April 2004

not unreasonable in this case, but the second
routine strip search was without further
justification. Nevertheless, the stay application
was dismissed.
In R. v. Clarke, Heroux, & Pilipa [2003] O.J. No.
3884 (OntSCJ), the three accused were
arrested for their involvement in a riot that
occurred a month earlier when protesting
demonstrators became violent and clashed with
police. Clarke was arrested in the morning, and
subjected to three separate strip searches—on
arrival at the police station, later by
investigators, and a third time when he could not
make bail and was taken to the Toronto jail. Both
Heroux and Pilipa were also arrested and strip
searched at the police station. Nothing was
found, but several breaches of the police strip
search policy occurred, including no proper strip
search reports and the complete removal of
clothing. The accused brought an application for
a stay of proceedings, in part, arguing that their
s.8 Charter rights were violated when they were
strip searched. Despite the absence of
reasonable grounds to believe any of the three
had weapons or drugs on them, Justice Ferrier
found the strip searches conducted not per se
unreasonable . They were conducted for the
safety and security of the accused, the police,
and other prisoners. He concluded that it would
be rare when a strip search of a person entering
a prison population, which he defined as persons
reasonably expected to come in contact with
others being detained by the state, would not be
reasonable. The judge said, “The police could
reasonably be concerned about an inadvertent
introduction of a dangerous object into the
police station. These concerns may not be
satisfied even with a thorough pat-down search.”
However, the police in this case did not keep
proper records of the strip searches, did not
allow removal of the clothing in stages, and the
second and third searches of Clarke were clearly
unjustified and unreasonable. Furthermore, the
court found the detentions of the accused
arbitrary because they were not brought before

Volume 4 Issue 2
March/April 2004

a justice as soon as practicable and could have
been avoided had alternative means been
considered, thereby eliminating the need for the
strip searches altogether. Nevertheless, the
request for a stay was rejected.
In Peart & Grant v. Peel Police Services Board,
[2003] O.J. No. 2669 (OntSCJ), two plaintiffs
sued police following their arrest when they fled
from a gas station in what was believed to be a
stolen car. Among other issues, like racial
profiling, the action claimed damages for
assaults and indignities suffered as a result of
breaches to their Charter rights, including strip
searches. At trial, there was evidence that the
general practice of the Peel police was to strip
search all arrestees brought to the police
station for safety reasons and to uncover
evidence of any offence. Justice Lane found the
searches to be reasonable. They were conducted
shortly after the arrest at the police station in
private with the view to protect the police and
the prisoners or to find evidence. The police
were investigating why the plaintiffs fled and
“such a search could reasonably be expected to
throw light on their sudden flight from the
PetroCanada station by disclosing whether they
had anything concealed on their persons which
explained their conduct”, said the judge. Here,
the officers also conducted the searches in a
reasonable manner. Although they were stripped
entirely naked, it was only for a brief period.
The police respected the privacy and dignity
interests of the men under the circumstances
and there was no body cavity search. The
plaintiffs Charter rights were not violated by
the strip searches and the action was ultimately
dismissed.
In R. v. Seenathsingh, (2002) O.J. No. 5010
(OntCJ), the accused was arrested, while seated
at a donut shop, for possession of marihuana. He
was told to stand up and the officer saw that his
pant zipper was down. This was consistent with
the officer’s experience in previous arrests
where suspects leave their zipper down to allow
easy access to drugs kept in the underwear. A

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13

brief pat down was conducted and a piece of
crack cocaine was found in his jacket. The
accused pushed the officer and tried to run
away, but was unsuccessful. Enroute to the
station, the officer noticed the accused
fidgeting in the back of the police car—a knife
and some cocaine was found under the seat. He
was booked in and strip searched resulting in a
bottle of hashish oil and marihuana being found
in his underwear. The accused argued at his trial
that his Charter rights were violated. Justice
Bovard, however, found the searches were
lawfully carried out as an incident to the
accused’s arrest and therefore did not infringe
s.8. The accused was convicted.
In R. v. Ferguson, [2003] O.J. No. 3242 (OntCJ),
the accused was strip searched in the booking
room with the doors closed after she provided
breath samples of 220mg% and 205mg%, but
before she was lodged in cells to sober up. Her
private areas were never touched by the officer
nor was she ever completely naked. The officer
testified the search was conducted for safety
reasons and to locate possible anti-depressant
pills the accused was taking. Justice Baldwin
found the search reasonable. Although there was
nothing more than a mere suspicion that pills
would be found, the search was justified on
safety grounds. “It seems reasonable to me that
a person being placed in the cells, even for a
short duration, should not have weapons, even
small ones like a razor blade, on their person,”
said the judge. The accused was extremely
intoxicated with volatile emotions, she lacked
good judgment, and she was incapable of taking
care of herself which all helped provide
objective grounds to justify the strip search.
Furthermore, metal detectors were not being
used by the police service at the time, which may
now be a major factor in subsequent strip
searches ruled the judge. Even though the
officer failed to properly document the search
as required by Golden, this was insufficient, in
the judge’s view, to render the search

14

unreasonable. The stay application was rejected
and the breath samples were admissible.
In R. v. Douglas, 2003 BCPC 392, the accused
was strip searched at the Vancouver police
lockup following her arrest where she resisted
the efforts of police officers to restrain her
during an alcohol involved traffic stop. At the
lockup, the accused refused to submit to the
search, but complied when an officer pulled out
her handcuffs as if she would force the search.
She was directed to take off all her clothing,
turn around, bend over, spread her cheeks, and
cough. At the time, the jail had a policy to strip
search all detainees except bylaw offenders or
those in custody for being drunk in public to be
released when sober. Justice Bruce found the
arrest and subsequent pat down search lawful.
Furthermore, upon entering the Vancouver jail,
corrections staff continue to have the authority
to search incidental to arrest for general safety
purposes including strip searches when a
detainee is mixed with the general prison
population. However, this does not include the
right to strip search persons where the officer
in charge has not yet decided to detain in
custody. A blanket strip search policy with
respect to these persons is not justified. Rather,
the searching officer requires proper grounds to
warrant the strip search—mere suspicion is not
enough. Factors to consider include the person’s
history of secreting weapons or contraband, and
their criminal record or demeanor, like violent
behaviour. In this case, there were proper
grounds for corrections personnel to be
concerned with their safety. The accused was
violent, had been fighting, and was to be charged
with assault. However, despite possessing the
requisite grounds for the search, it was not
conducted in a reasonable manner. The search
was not carried out in private—the window of
the cell was open. The accused was entirely
disrobed, rather than having her clothes
removed in stages. And finally, when the accused
initially refused to submit to the search, a
corrections officer implied force when she

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Volume 4 Issue 2
March/April 2004

presented her handcuffs. Despite these
concerns, a stay of proceedings was not
warranted.
Interestingly, Justice Bruce went one step
further and ruled that when prisoners object to
a strip search an additional right to counsel is
triggered. No case law was cited to support this
contention even though the Supreme Court of
Canada has previously ruled that the right to
counsel derives from arrest or detention, not
from the fact of being searched (R. v. Debot
(1989), 52 C.C.C. (3d) 193 (S.C.C.)) It will be
interesting to see if this line of reasoning is
accepted by other judges. It seems unlikely that
an additional right to a lawyer would be engaged
only if the detainee objects to the strip search.
Surely, if there is any right at all, as suggested
by Justice Bruce, it should be duly afforded to
all persons the police seek to submit to a strip
search, regardless of whether they object or
not.

provide a foundation on which to justify a more
intrusive strip search. Moreover, police agencies
need to consider metal detectors. Again, a
positive reading on such an instrument may
provide the police with the necessary grounds to
initiate a strip. Remember as well, the definition
of a strip search accepted by the Supreme Court
of Canada involves the visual inspection of the
private areas or undergarments. Asking someone
to remove their hat, take off a bulky jacket, or
kick off their shoes, would not appear to be
captured by this definition. And don’t forget to
document, document, document. Keep current
and stay safe!!!

The Bare Essentials
As a result of reviewing these cases a few basic
tenets appear to develop. The common law power
to strip search a person incidental to an arrest
requires the following:
•
•

•

•

a lawful arrest (the police had reasonable
grounds);
the search must be truly incidental (or
connected) to the arrest;
o safety; and/or
o evidence
the police must have reasonable grounds to
justify the strip search independent from
the grounds for the arrest itself; and
the strip search must be conducted in a
reasonable manner.

As a matter of practice, officers must feel
comfortable and be proficient at conducting
thorough pat down searches. A proper pat down
may provide the necessary grounds to justify a
strip search. For example, while frisking a person
an unnatural bulge is detected. This may then

Volume 4 Issue 2
March/April 2004

www.jibc.bc.ca

15

16

www.jibc.bc.ca

Volume 4 Issue 2
March/April 2004

A proud sponsor of the
Police Leadership 2004 Conference

Volume 4 Issue 2
March/April 2004

www.jibc.bc.ca

17

The Vancouver Police Union
Wishes You A Successful Police
Leadership 2004 Conference

A Proud Sponsor of the
Police Leadership 2004
Conference

18

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Volume 4 Issue 2
March/April 2004

ARRESTEE MUST BE DILIGENT
IN TALKING TO LAWYER
R. v. Wilford,
(2004) Docket:C40169 (OntCA)
The accused was arrested for
impaired driving after he was
found standing beside a vehicle
driven into a ditch with the
keys in the ignition, given the
breath demand, read his right to counsel,
cautioned, and asked if he wished to speak to a
lawyer. He answered, “I’ll blow first”. The
arresting officer believed this meant the
accused would speak to a lawyer after he
provided breath samples.
In between the two breath samples, the
breathalyzer technician asked several questions.
The accused admitted he had been driving, that
he had three or four beers prior to the accident,
and performed three sobriety tests at the
officer’s request. Following the tests, the
accused did not renew his request to speak to a
lawyer, but rather indicated he wanted to go
home.
The accused testified at his trial in the Ontario
Superior Court of Justice. He said that by
stating he would blow first, he was postponing
his right to counsel but should not have been
asked any questions by the technician. Thus, he
suggested, his answers to the questions were a
violation of his s.10(b) Charter right. The trial
judge found no Charter breach and admitted the
evidence, but the accused appealed to the
Ontario Court of Appeal. In dismissing the
appeal, the court stated:
The test for waiver of a Charter right is a
strict one and that…"the standard required
for an effective waiver of the right is very
high". It is also well established that once a
detainee states that he or she does wish to
consult counsel, the police must "hold-off"
and refrain from questioning the detainee
until the right to counsel has been

Volume 4 Issue 2
March/April 2004

satisfied…Having heard the [accused’s]
response "I'll blow first", and in view of the
importance of the right to counsel, it might
have been more prudent for the police to
have warned the [accused] that the
technician might ask him to answer some
questions or to perform certain sobriety
tests. However, since a detainee must be
"reasonably diligent" in asserting the right to
counsel…we are not persuaded that the trial
judge erred in law in finding that the
[accused] had waived his right to counsel,
particularly in light of the [accused’s]
admission on cross-examination that he did
not intend to actually speak to a lawyer "until
after you completed the first blow, sobriety
test, the conversation and the second blow".
[para. 10, references omitted]
Complete case available at www.ontariocourts.on.ca

MEDIATION SKILLS FOR THE
LAW ENFORCEMENT
SUPERVISOR
Kevin M. Gilmartin, Ph.D.
The services that any
organization may request of
it's supervisory personnel
can be quite varied. Often
times
Supervisors/
Commanders are called upon
to assist in an on-going
conflict within the work place. These conflicts
can take various forms including conflicts
between two coworkers—a coworker and a
supervisor—and on occasion a coworker and a
citizen. The use of Supervisory individuals to
resolve these conflicts appears a logical decision
many times by the appropriate management
authority, however it can lead to a good
supervisory individual very quickly "getting in
over their head". This requires the Supervisory
employee to appreciate the basic difference
between mediating a conflict and providing
support services to employees effected by a
conflict. One is primarily a counselor role, that
of helping people deal with their thoughts and

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19

feelings about a conflict and attempting to
minimize the emotional dysfunction that can be a
product of a workplace conflict. The other role
is that of mediator.
The mediator's role is to create a process
whereby the conflict is eliminated and the
effected parties learn functional conflict
resolution skills in addition to solving the present
problem at hand. Although the role of both
counselor and mediator have similar appearance
at first glance they are essentially different
processes with different outcomes and means to
obtain their respective goals.
Supervisors/Commanders
must
clearly
appreciate the differences and at all times be
quite certain of which "hat they are wearing". It
is also imperative that the supervisory person
wears only "one hat". An individual cannot begin a
relationship with an individual as a counsellortype, discover a conflict and begin assuming the
role of a mediator. A mediator has no vested
interest in the benefit to either party in a
conflict. A mediator's role is for the benefit of
both individuals by creating conflict resolution.
The mediator is neither negotiator, which would
be attempting to benefit one side in a resolution,
nor arbitrator, which is to weight the evidence
by both sides and impose a solution. The
mediator creates a setting whereby the parties
resolve their own conflict with a mutually agreed
upon solution.
Studies have demonstrated that the majority of
Americans feel that the number one ranked
source of emotional stress in their life is
created by conflicts in their individual
workplace. Providing a process whereby these
conflicts are handled appropriately and
effectively not only creates significantly more
productive workplaces, but if the studies on
stress are accurate, it produces personal lives
that are more fulfilled and less reflective of
strain and distress carried home from the work
environment. The organization and all individual

20

parties concerned
mediation.

benefit

from

conflict

Supervisors/Commanders functioning as a
mediator need to realize that conflict within a
work group in and of itself is not necessarily
destructive or dysfunctional. Conflict, if handled
correctly, can be quite constructive. It can
signify a need for healthy change and can be the
impetus for growth of the organization. It can
be an opportunity for the parties involved to
directly
and
truthfully
communicate
expectations they hold for each other which in
the past often times had not been directly
expressed. This non-direct or less than candid
communication between parties in the workplace
is often times the source of many conflicts that
grow far beyond the initiating cause. Competent
mediation of conflict can assist in the creation
of a positive work environment where creative
problem solving can take place and emotional
investment in the unit productivity can be
emotionally safe. Conflict that goes unaddressed
or is poorly managed can rapidly create an
environment of distrust, covert conflict, clique
development, and a generalized air of passive
hostility that can destroy the working
atmosphere. Dysfunctional conflict can have a
work unit feeling at risk emotionally, producing
only minimal output and on occasion exploding
into uncontrollable emotional or physical rage.
When coworkers are aware of an unaddressed
conflict in the workplace they can be forced to
"take sides" in the issue or spend critical work
time attempting to avoid the conflict; time that
should be spent attempting to increase the
functioning of the work organization.
The mediator needs to remember that conflict
between people is, in itself, inevitable. It is not
good or bad. The question is whether or not the
conflict is competently mediated to become a
functional situation or left to remain a
dysfunctional entity within the workplace. "Good
" workplaces like "Good" relationships or
marriages are not determined by the presence
or absence of conflicts, but by the presence or

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Volume 4 Issue 2
March/April 2004

absence of good conflict resolution and problem
solving skills.
Supervisors/Commanders need to remember
that the goal of conflict mediation is quite
different than the goal of other crisis
intervention types of procedures. In crisis
intervention the goal typically is to resolve an
emotional issue by permitting ventilation of
emotions and expression of perceptions. In
conflict mediation, although some of the same
goals appear to exist, the major goal is to
resolve the conflict by having the conflicting
parties engage in a process whereby each party
hears the perception of the other party in clear,
uninterrupted, behavioural terms. Unlike the
counsellor or crisis intervention role of the
supervisor, the mediator role requires a
structured authority based format. The
mediator must create the setting where the
conflict can be resolved by each party being
"Structured" to hear the perceptions of the
individuals with whom they are having the
dispute.
Many times, conflicting parties, once they reach
the point in the conflict of being more focused
on the conflict than the workplace goals, lack the
necessary communication tools to take the
conflict one step further and bring it to
resolution without assistance. The workers
involved in a dysfunctional conflict begin going to
great lengths to avoid the individuals with whom
they have the conflict. This avoidance between
the conflicting parties can grow to extreme
isolation between the parties and facilitate the
rapid development of an atmosphere of distrust
and blame. The parties avoiding each other many
times will take their perceived grievance to
coworkers that are uninvolved in the dispute in a
hope to create allies or receive support for their
respective position in the conflict. Parties in
dysfunctional conflicts are highly motivated to
have coworkers perceive them as the reasonable
individual who is basically a "victim" of the
unreasonableness of the other disputant.
Unaddressed, this type of conflict can leave

Volume 4 Issue 2
March/April 2004

coworkers feeling like they have to choose sides
in a conflict situation. Although the conflict does
not impact the uninvolved coworkers initially, as
a dysfunctional conflict grows, the division in a
work force can destroy the morale of a unit and
increase feeling of burn-out, detachment, and
overall apathy to the unit goals. Conflicts that
have gone unresolved in a workplace have
created situations that have ranged from
economic destruction of a company or enterprise
to the tragedy of episodes of workplace violence.
Workers many times lack the necessary
communication skills to address emotional issues
in the workplace. Reacting emotionally to work
issues can be seen as inappropriate for the work
place. Workers and supervisors can both believe
than any emotional interaction at work is
inappropriate. "That's a personal issue, keep it
out of the workplace"—this thinking does not
permit the situation many times to be selfresolving and subsequently suppressed feelings
can lead to a continuum of emotionally driven
conflict behaviours. The goal of the mediator is
the creation of a setting, whereby each party
hears the other conflicting party in it's entirety
and at the same time has the opportunity to
express their own beliefs, thoughts, and
perceptions about the conflict situation.
The mediator's ultimate goal however, is to have
the parties involved generate a mutually agreed
solution to the problem. The solution is one
generated by the conflicting parties and not one
suggested or imposed upon the disputing parties
by the mediator. The solution is created by the
conflicting parties, the environment that permits
the solution to be generated by the conflicting
parties is created by the mediator. The
mediation process is different at this point from
other
interventions
with
which
the
supervisors/commanders might be familiar. It is
not the mediator's role to make suggestions,
provide emotional interpretations, or generally to
"Solve the Problem". The mediator is basically a
structurer of a situation and an instructor in
providing the disputants a problem-solving

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21

format, which is potentially available for future
conflict situations.
Mediation intervention basically revolves around
a two-staged process. In the first stage the
mediator has to obtain a thorough understanding
of the issues and positions involved in the
conflict. The second stage is the creation of a
mutually agreed upon solution by the conflicting
parties and the implementation of the agreed
upon strategy for resolution.
In
attempting
to
obtain
a
thorough
understanding of the conflict, the mediator
needs to know not only what is taking place, but
the degree of emotional intensity and
subsequent dysfunctional behaviours that are
being generated as a function of the conflict.
To someone not personally involved in a longterm dysfunctional conflict in the workplace, the
issues may seem petty, however the emotional
energy invested in such a conflict can have major
implications. The mediator must obtain as much
information concerning the situation as possible.
The mediator at this point can be at an extreme
disadvantage. Where can the mediator obtain
information about the conflict? How does the
mediator know if the "independent or neutral"
sources of the information about the conflict
are themselves not involved or influenced by the
conflict or by their own beliefs about the
conflict? The mediator that forms preconceived
beliefs or projects their own values into a
conflict situation places in jeopardy their
effectiveness as neutral uninvolved facilitators
of conflict resolution.
Contamination by background information can
impact a mediator through many sources. The
mediator needs to remember in many
organizations the informal pipeline or the formal
chain or command both can be impacted by a
conflict situation and have already chosen sides
in the conflict. The information provided by
these "Independent" parties may really only be
an attempt consciously or unconsciously to

22

communicate to the mediator the beliefs
supporting their chosen side in the conflict. If a
conflict situation is of a magnitude significant
enough to require the services of a mediator,
the chances are quite good the agency head
requesting the mediation has already drawn some
conclusions concerning the conflict and quite
possibly is providing a biased background
appraisal of the situation.
The best source of information about a conflict
is obtained directly from the conflicting parties.
Hearing the beliefs, thoughts, and perceptions
about a conflict can best be understood when
the mediator hears them directly from the
individual or individuals that hold the beliefs.
The idea of speaking to the involved parties
themselves is generally agreed with by the
agency requesting the mediation with one caveat;
"as long as they are seen separately". This is a
time for extreme caution by the mediator. The
mediator must create a setting, whereby each
party can express their entire "side of the
story" without being interrupted or drawn into a
debate with their disputing coworker about the
accuracy of any given point. The mediator has a
choice to make at this point in the information
gathering stage of an intervention. How does the
mediator hear the complete "Side of the story"
from each party? Commonsense would dictate
that if the ultimate goal of the mediator were
only to obtain the information about a conflict,
the least difficult course of action would be to
interview each party separately. This decision,
although easiest in the short-term, usually
creates an atmosphere destructive to the
ultimate goal of the mediation. It is here that
the mediator needs to appreciate that the
ultimate goal of the intervention is the creation
by the conflicting parties of a mutually agreed
upon solution to the conflict. The mediator is not
merely an investigator of the facts and beliefs,
but an architect of the setting that permits the
conflicting parties to resolve the conflict.
In virtually every case the mediator makes a
serious mistake by interviewing the conflicting

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Volume 4 Issue 2
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parties separately. Usually the decision to
"Interview" the conflicting parties separately is
rationalized using the logic of the crisis
interventionist, who has different goals than the
mediator of a conflict. The decision for separate
interviewing is often times made for reasons,
such as, it creates a less threatening
environment, it permits each party a chance to
speak their mind without fear of attack, it lets
the interventionist create rapport with each
party thus ultimately leading to a facilitated
resolution. These beliefs, in support of the
decision for separate interviewing of the
conflicting parties, might very well be valid and
accurate for the investigator trying to capture
independent recollections and statements of a
conflict, but actually can spell disaster to the
mediator. The course of action for the mediator
in almost every situation is to bring the
conflicting parties together and to conduct all
mediation relevant business in the presence of
all involved principals. Structuring the mediation
such that both parties must come together runs
against the logic or game plan of most
dysfunctional interactions. Those involved in a
conflict many times would prefer to "speak
about" the other party, as opposed to "speak
with" the other party.
The decision to interview the conflicting parties
at the same time and in each other's presence
creates the most significant initial challenge to
the mediator and is in reality the central
difference between mediational information
gathering and that of an investigator or crisis
interventionist.
The mediator, in bringing the parties together,
takes the "path of most resistance" initially, but
is establishing a setting, whereby the ultimate
resolution can occur. The decision to bring the
parties together at the same time is based on an
understanding
of
the
dynamics
behind
dysfunctional conflict. The conflicting parties
have been, in all likelihood, speaking about the
conflict to everybody, but the party with whom
they are having the conflict. The conflicting

Volume 4 Issue 2
March/April 2004

parties possibly have become proficient in
portraying themselves as the "victims " of the
behaviour of their adversary in the conflict. If
the conflicting parties had the communication
skills to approach each other and respectfully
articulate their individual concerns while
simultaneously respectfully listening to the
concerns of the other party, by definition
dysfunctional
conflict
would
not
exist.
Respectful disagreement might possibly be
present, but each party would speak and listen to
the other party utilizing communication skills.
That
environment
is
self-correcting
of
disagreements and possesses none of the traits
of the long-term dysfunctional conflict typified
by avoidance, distrust, and solicitation of
coworkers as allies to one respective side of the
conflict or the other.
By
interviewing
the
conflicting
parties
separately the mediator permits the conflicting
parties to continue to potentially engage in the
dysfunctional behaviour of trying to "win over"
the mediator to their "side" of the conflict.
Independent interviewing also ignores the fact
that the conflicting parties distrust each other,
possibly intensely, and are left to draw the
conclusion that the mediator is "taking sides"
particularly by the party not interviewed first.
Separate interviewing or speaking with one party
in a dispute without the other present puts the
mediator at significant risk of being perceived as
compromised in terms of neutrality. It also
permits the parties to continue utilizing the
dysfunctional
communication
style
that
permitted the conflict to be created and
maintained without previous resolution. Creating
an environment of direct and truthful
communication that permits resolution is the goal
of the mediator.
Each party can "assume" that everyone must
have a position in the conflict. If a conflict is
quite intense, parties can become so emotionally
invested in their respective position that
isolation from communication with the opposite
party can assume paranoid degrees of distrust.

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23

The mediator by bringing the parties together
possibly is creating the setting, whereby the
conflict is being discussed directly between the
parties involved for the first time.
The mediator must not be naïve in terms of
appreciating the potential demands created by
bringing the parties together. Often times, it
can be these very demands that cause an
inexperienced individual attempting a mediation
to speak with each party separately. It truly is
emotionally safer and less challenging, but
infinitely less effective. Interviewing the parties
separately also permits the belief to be created
from the initial intervention that somehow the
mediator is going to "Solve" the problem. The
"Solution" comes from the disputants not from
the mediator.
By bringing the parties together from the onset
of the intervention a stage can be created that
permits the conflicting parties to begin actively
practicing the behaviours that will ultimately
lead to resolution, as opposed to passively
waiting for the mediator to solve the problem.
The mediator, by definition, cannot solve the
problem. Unless the "Solution" is generated and
agreed upon by both parties, whatever the
mediator might have suggested would only be
rejected, sabotaged, and undermined by the
conflicting parties and not embraced as their
own solution. It is at this point a mediator must
continue to appreciate it is not their role to
assume responsibility to solve the problem. It is
the responsibility of the conflicting parties to
solve the problem. The mediator is creating and
structuring an environment and facilitating the
utilization of functional communication skills that
permit the parties to move past their
dysfunctional communication styles and work
towards mutual solution. The mediator cannot
assume responsibility to solve the problem. The
mediator cannot solve the problem, regardless of
their skill or wisdom. Only the involved parties
can generate a mutually agreed upon solution,
support it, and implement it.

24

With both parties together, the mediator must
create a functional problem solving setting.
Failure to control the setting can create a failed
mediation from the outset. The mediator must
control the setting by advising the parties from
the outset what the "Ground Rules" are and what
behaviour is expected during the mediation.
A mediator is wise to assume the authority role
of an unbiased party with interest in helping find
the solution to the conflict and no interest in
declaring one party a winner over the other
party in the conflict. A mediator is wise to
assume a somewhat detached, formal authority
status-based stature in the mediation setting. It
is not the mediator's responsibility to appear
cordial, informal, warm or sociable. The
somewhat emotionally distant stature by the
mediator facilitates the development of the
setting and maintaining the control needed to
perform the resolution intervention.
It is imperative for the mediator to advise both
parties at the outset what the rules are:
"I am going to ask each of you in turn to tell
me your perspective on this issue. I am going
to speak with each of you beginning with
Party A and then I am going to speak with
Party B. I will listen to both parties and I am
going to insist that while the other party is
speaking to me about their side of the issue
that you not interrupt or challenge what the
other party is saying"

This "Ground Rule", although easy to articulate,
is an ever-present challenge for the mediator to
enforce during the mediation process. Each
party will in all likelihood continue to practice
the dysfunctional communication techniques that
helped create the conflict. The mediator can
expect statements by one party to be met with
interrupted challenges to the accuracy, intent
and factual basis of the conflicting parties
articulation of their respective "Side of the
story". The mediator must be prepared to
immediately respond by regaining control of the
situation.

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Volume 4 Issue 2
March/April 2004

Control can be regained by restatement of the
ground rules or by the utilization of more subtle
responses, such as ignoring the statement of the
interrupting party and continuing to interview
the appropriate party who is giving their
respective "side".

rules and the mediator lacks assertiveness or
skill to control the situation. Having the
mediator sit between the parties is often an
advisable strategy; not across the table from
each other. Obviously the setting also would
need to be private and free from intrusions.

One example of a restatement of ground rules
by the mediator can be:

The mediator must be ever vigilant to maintain
the structure and integrity of the ground rules
and operating premises. A mediator must be
prepared for the more subtle manipulations or
distractions to the intervention. Ploys, such as
parties involved in a mediation asking questions
of the mediator during the intervention can put
the mediation under the control of the
conflicting party by attempting to change the
course of the process, as opposed to, under the
control of the mediator.

"I am listening to Party A right now I will
listen to you when they have finished"

The injection of structure is absolutely
necessary to create a resolution-generating
environment. The conflicting parties have the
capacity to manipulate, distort, and undermine
the mediation process if the mediator fails to
create and maintain structured control of the
setting. It is at this point the mediator must
fully appreciate the defined goal of providing the
structured situation. Many times disputing
parties will challenge the format and attempt
almost rebelliously to not permit a rational
structured process to exist.
Each party in a dysfunctional conflict wants to
be the "winner" and see their opponent as the
loser. It is the role of the mediator to create a
win-win situation by facilitating a mutually
agreed upon solution.
Something as simple as the room arrangement
needs to be considered. Some individuals
attempting to create an intervention may want
the conflicting parties "face to face" to air their
differences. Typically this would not be an
advisable strategy, as much as the conflicting
parties potentially can begin arguing "at" each
other, as opposed to, speaking "with" the
mediator. It is advisable for the mediator to
arrange seating that takes proximity and eye
contact of the conflicting parties into
consideration. The parties in the mediation
intervention are to speak to the mediator not to
each other.
This can be the most common loss of control by a
mediator. The parties fail to abide by the ground

Volume 4 Issue 2
March/April 2004

The mediator has no responsibility to abide by
the expectations of normal social conversation
and to respond to questions politely. The
mediator can assert control and authority by
either ignoring questions directly or if needed by
responding "I am asking you what your thoughts
about this are, my thoughts are not the issue we
are dealing with". A rather direct detached
professional restructuring early on in an
intervention can shape and maintain the
necessary setting for conflict resolution.
One of the first goals of the mediator is to
understand thoroughly, each disputant's beliefs
and perceptions concerning the conflict
situation. It is not the mediator's role to
determine the accuracy of the beliefs. The
mediator is not a fact-finder. The mediator is
the developer of a problem resolving setting with
the disputing parties generating the solution. A
thorough understanding of each party’s beliefs
does not signify either agreement or
disagreement with the beliefs by the mediator.
It is important for the mediator to remember in
a great number of conflicts the difficulties lie
not in the facts of the situation, but in the
beliefs about the situation held and not directly
communicated by each party to the conflict. By

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25

creating a setting that has each party hearing
the conflicting party express their individual
beliefs about the conflict many times is an end in
itself.
The techniques of dysfunctional communication,
such as, isolation and avoidance many times have
the disputing parties unaware of what actually
the other party believes. In creating a setting
with each party "hearing out" the other party
"uninterrupted" can at times greatly facilitate a
resolution in itself. It may actually be the first
time one party has heard what the other party
believes and can rapidly lead to communicating
where the conflicting parties "got at odds" over
misunderstanding of simple behaviours.
Dysfunctional communication techniques lead to
projection of intent onto the other party
without any feedback loop for reality checks or
"checking it out directly". The results of such a
communication style are often distrust, anger,
projection of blame onto the other party, and
intense isolation from any functional problem
solving techniques.
It is of paramount importance for the mediator
to understand in detail each party's position on
the issue. It is best that each party be
interviewed one at a time until the complete
story is given before moving on to the second
party. Moving point by point between parties at
this time does not permit the mediator to either
maintain control or gain a full understanding of
the central issues involved. Parties, in turn, can
begin by "putting on the table superficial or
superfluous" issues to test the waters and see
what happens before they "risk" saying how they
really feel about an issue. These tests by the
conflicting parties can be to determine if the
mediator is going to take sides on the issues or
is going to be injecting what the mediator thinks
is "fair" and imposing that on the parties. Each
party is given a structured and facilitated
opportunity to express completely "their side of
the story".

26

It is the skill of the mediator that creates the
setting, whereby emotionally charged mistrust is
transformed into articulated perceptions by
each party in behavioural terms. Behavioural
terms means describing "what" the other party
is doing specifically, not describing how the
party "feels" about their disputant's actions.
As the mediator develops the setting for each
party to discuss their perceptions of the issues,
careful attention continues to be needed to
prevent loss of structure and control. The
mediator must assist each party in being able to
express their thoughts, feelings, and beliefs in
behavioural terms. This can be one of the
biggest challenges to the mediator who is
working with parties many times who are only
reacting to their own emotional feelings about
the situation and have long since abandoned any
effort at attempting to articulate their
thoughts clearly and as objectively as possible.
It continues to be of paramount importance that
the mediator focuses the conversations to them
and not let the dialog deteriorate to eyeball-toeyeball exchanges of accusations between
disputants directly.
The facilitator must generate non-leading open
ended questions that facilitate the speaking
party in defining "what and how" is going on in
the conflict situation from their perspective.
The mediator is wise to steer clear of the "why"
of events taking place. "Why" leads to projection
of emotions, values, and judgments into the
situation with each disputing party attempting to
vilify their adversary and put themselves forth
as the reasonable "victim". Using "What-HowWhen-Where" as prompts forces each party to
articulate behaviour and not respond with
emotional tirades and accusations.
It is important that the mediator not permit the
parties to discuss events from the long-term
past, but to keep the parties focused on the
"here and now". Many times conflicting parties
will attempt to "muddy the waters" by forcing
numerous potentially irrelevant issues into the

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Volume 4 Issue 2
March/April 2004

mediation process. The facilitator needs to deal
with one major issue at a time. The mediator,
however, must not decide prematurely what the
major issue is, but permit the parties involved to
define the problem from their perspective. It is
at this point many times mental health
professionals performing mediation confuse
mediation with psychotherapy by interjecting
their interpretation of what is transpiring
between
the
parties.
Whether
the
interpretation is accurate or not, is basically
irrelevant to mediation. All that counts is that
each party is given the structured and
facilitated opportunity to express completely
their story. It is only important what the
disputants say and hear from each other in a
mediation because they are the parties that will
generate the mutually agreed upon solution to
the issue.
One of the biggest challenges for the mediator
is assisting each party with expressing
emotionally laden thoughts into behavioural
terms. "He just does it to make me mad" would
need to be responded to by the mediator with
the prompting question "What are they doing
that you believe they are doing to make you
mad?" The question forces the speaker away
from their own interpretations of the opposing
parties intentions and forces them to speak in
terms of objective clearly defined behaviours,
"What is the other Party doing?”
People often times can not agree with "why"
someone is doing something, but they normally
can agree with "What" they are doing. The
facilitator must accept each party's perceptions
nonjudgmentally. The mediator is not a judge or
problem solver, but rather a facilitator of a
structured process. If a given party’s version of
the events in question is inaccurate the mediator
can rest assured that the disputing party will
point out their beliefs about the inaccuracy when
they are permitted to articulate their own
statement of the events.

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March/April 2004

By utilizing active listening skills and reflection
techniques the mediator has each party in turn,
clearly and in behavioural terms, complete their
respective version of the events. This process
has the mediator utilizing communication skills,
such as reflection of content, summarization of
events, and reflection of emotion. The mediator
can put the summarization to test by reviewing
what the respective disputants believe about the
conflict. One example of this might be:
"John, am I correct that you are angry at Joe
because you believe he intentionally leaves
the equipment dirty after he uses it?"

The mediator should reflect back each major
point of the disputant’s "side of the story"
before moving onto the next party. The mediator
can test that each party has finished expressing
their version of the situation when they respond
to the question "Is there anything else you would
like to add?” in a negative mode. A "No" response
by each party in turn lets the mediator know
that each side in the conflict has had the
opportunity to fully articulate their thoughts to
the point of completion. The mediator would at
this point reflect the summary content back to
each party to assure individual agreement.
Once each party has agreed with the mediator's
summary of their respective problems in
behavioural terms, the facilitation of the
mutually agreed upon solution begins. It is
important that the mediator not play problem
solver and make suggestions. The mediator must
elicit remedies point by point from the
disputants. At this juncture the mediator begins
moving between parties after each specific point
of the problem is addressed. This is unlike the
initial information-gathering phase where the
mediator remains with one party through to
completion of their respective statement of the
issue.
The resolution is reached point by point in
specific terms. Generalized statements of
agreement by each party, such as "we'll get along
from now on", are not mutually agreed solutions

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27

but rather generalized "feel good" platitudes
often times utilized as a means of avoiding the
more behaviourally specific problem solution.
The basic question the mediator utilizes at this
phase is:
"What do you suggest to remedy this issue?"

If either party reverts to accusations or
projection of emotion onto the other party the
facilitator brings the person back to behavioural
terms and focuses on the solution. At this point
the problem has already been defined and the
parties are being asked to put forth solutions to
remedy the specific aspects of the situation.
"What do you suggest", can be repeated after
each negative response by either party. It
forces the individuals into the solution phase and
away from remaining in the dysfunctional nonproductive re-articulation of projection of blame
onto the other party for the problem.
The mediator must remain neutral and not
project their own solutions or feelings into the
situation. If the mutually agreed upon solution
appears one-sided to the mediator, it is of no
importance. It is not the mediator's perceptions
that count, but rather the perceptions of the
conflicting parties. If a mutually agreed upon
solution of behavioural changes is arrived at by
the disputing parties, the mediator has
completed their major work.
Once the "solution " has been arrived at by each
party, the mediator would need to get each side
to "sign off" on the specific behavioural changes
they have agreed to perform. "Signing off" can
be taken quite literally. Many situations benefit
by the mediator putting in writing the specific
agreed upon behaviours that constitute the
solution. Having each party read their agreed
upon behavioural changes and sign the agreement
reinforces the idea of contractual commitment
to the behavioural change.
For some parties involved in a dysfunctional
conflict the structured communication process

28

of competent mediation is a new experience. In
order to see that the solutions are actually being
put into use, it is important that the mediator
follow-up with the disputing parties after a
reasonable period of time has passed. This is to
determine if each party is in fact producing the
behavioural change they agreed upon. This
follow-up session not only determines if the
agreed upon changes are taking place and
reviews the accountability of each party, but
also reinforces the concept of functional
problem solving.
The mediator must remember that problem
solving is a skill and that many of the parties
involved in protracted disputes or dysfunctional
conflict lack the necessary skills for functional
problem solving. If the mediator has been
successful in providing the structured setting
and process to reach resolution by the parties
involved, an important training and skills
development process has also taken place. Both
parties in the conflict have learned how to
approach the other involved individuals directly
and to communicate, in behavioural terms,
thoughts, expectations, and perceptions about an
event while at the same time, respectfully
permitting the other parties involved the same
privilege. Workforces that communicate and
problem solve with these traits rarely find
themselves unable to move past a conflict
situation. Conflict begins to signify the potential
for growth, not the need to create angry
fragmented groups of coworkers.
Editor’s note: “In Service: 10-8” would like to
thank Dr. Kevin Gilmartin of Gilmartin, Harris,
and Associates for permission in reprinting this
article. This and many other excellent articles
are available at www.gilmartinharris.com.

Note-able Quote
By three methods we may learn wisdom: First, by
reflection, which is noblest; Second, by
imitation, which is easiest; and third by
experience, which is the bitterest-Confucius

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Volume 4 Issue 2
March/April 2004

PRIVACY DEPENDS ON
CIRCUMSTNACES
R. v. Burley,
(2004) Docket: C39484 (OntCA)
The accused was arrested for
impaired driving causing bodily
harm and read his right to
counsel after he lost control of
his vehicle with two child passengers. He
complained of back pain and was taken to the
hospital by the arresting officer where he was
provided an opportunity to speak to a legal aid
lawyer. The accused was taken to a small
ambulance attendant room, equipped with a desk,
two chairs, and a telephone, where he was left
alone to speak in private. The officer told the
accused he would be out of earshot and stood 20
feet away down the hallway while maintaining a
line of sight to the doorway, but could not see or
hear him.
At his trial in the Ontario Court of Justice, the
accused testified he was uncomfortable speaking
to legal aid because he saw an elbow in the
doorway that he thought belonged to a police
officer. Because he constantly would move the
phone from his ear to check on where the police
officer was, he said he was deprived of adequate
consultation. However, he never complained to
the police. Rather, he said the police treated him
courteously.

that the totality of the circumstances—the
individual factual context—must be considered in
deciding whether there was an absence of
reasonable privacy in speaking with counsel. In
this case, the evidence was incapable of
supporting the trial judge’s conclusion. The Court
stated:
[The accused] was informed of his right to
counsel and he did speak to duty counsel
while alone in a room. He had a good rapport
with the only officer present during the
call and was told by that officer that he
would not be standing within earshot. The
[accused] spoke to counsel for five to six
minutes. At no time did he suggest to the
officer present that he was concerned
about his privacy. He did not ask that the
door be closed or that he be given an
opportunity to make a second call. [para.
25]

As a consequence, the accused’s belief he could
not retain and instruct counsel in private was not
reasonable.
Complete case available at www.ontariocourts.on.ca

J.P. ENTITLED TO MAKE
INFERENCES FROM I.T.O.
R. v. Shiers, 2003 NSCA 138

The accused was acquitted. The trial judge
concluded that the officer acted in a
commendable fashion, but held the accused was
not afforded an opportunity to speak in private,
contrary to s.10(b) of the Charter. The Crown
appealed, submitting that the accused’s belief
was subjective and unreasonable and that the
privacy afforded was more than adequate. The
accused argued that the trial judge was correct
and that he made no error in holding that privacy
was infringed.

A police officer swore an
Information to Obtain (ITO) a
search warrant to search for
drugs
at
the
accused’s
apartment. A confidential source told police that
marihuana had been purchased from the accused
outside his residence. He obtained the drugs
from a large plastic bag containing about 150200 grams of marihuana in one gram amounts.
The warrant was issued by a justice of the peace
and police located 292 grams of marihuana,
electrical scales and score sheets. He was
charged with possession for the purpose of
trafficking.

In ordering a new trial, Chief Justice McMurtry,
for the unanimous Ontario Court of Appeal, ruled

At trial in Nova Scotia Provincial Court, the
judge reviewed the warrant. Although there was

Volume 4 Issue 2
March/April 2004

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29

information connecting the accused to drugs and
connecting him to the apartment, the judge
found there was insufficient evidence to connect
the drugs to the accused’s apartment, the target
of the search. In her view, the source only
described what occurred outside the address
and there was nothing to connect the trafficking
to the residence. The judge found the ITO was
insufficient to justify the warrant, the search
thus violated s.8 of the Charter, and the
evidence was excluded under s.24(2). The
accused was acquitted.
The Crown appealed to the Nova Scotia Court of
Appeal. Justice Fichaud, authoring the unanimous
judgment, first noted that a reviewing judge is
not to substitute their opinion on the sufficiency
of information for that of the issuing judge.
Rather, the test is whether there was a proper
basis upon which the issuing judge could have
granted the warrant. This includes drawing
reasonable inferences from the evidence
contained in the information to obtain.
In this case, the question was whether the
issuing judge, drawing reasonable inferences
from the material in the ITO, could have
concluded that there were reasonable grounds to
believe that drugs or evidence were in the
accused’s apartment. In holding that the trial
judge did not consider drawing reasonable
inferences, Justice Fichaud stated:
The issuing judge, by drawing reasonable
inferences from the quantity of drugs said to
be in [the accused] possession at the time of
the transaction and the way in which they
were packaged, the evidence that [the
accused] was known to be involved in the drug
trade, the fact that the transaction took
place on the street in front of his residence
and other facts and opinions disclosed in the
Information to Obtain, could conclude that
there were reasonable grounds to believe
that the items targeted by the search were
in his residence.

Rather, the reviewing judge noted that there
was nothing on the face of the Information
"to suggest that [the accused] had been seen
entering or leaving that residence let alone
seen entering or leaving approximate in time
to when Source "A" had contact with [the
accused]."
It is correct that the Information does not
state whether or not [the accused] reentered his residence after the transaction.
But the issuing judge was entitled to draw a
reasonable inference that (1) at some point,
[the accused] would return to his residence
along with the remaining marihuana in the
plastic bag; and (2) items such as scales and
score sheets would remain at [the accused’s]
residence even if [the accused] was
temporarily absent.
By
overturning
the
warrant
without
considering whether there was evidence in
the Information from which the issuing judge
could reasonably draw the connecting
inferences, the reviewing judge substituted
her discretion for that of the issuing judge,
which was an error of law. [paras. 23-27]

Nova Scotia’s top court concluded that there
was sufficient material in the ITO that the
issuing judge could have reasonably inferred that
there were drugs, scales, and score sheets in the
accused’s residence. The warrant was valid and
the search and seizure did not violate s.8 of the
Charter. The appeal was allowed, a conviction
substituted, and the matter was remitted to
Provincial Court for sentencing.
Complete case available at www.canlii.org

Note-able Quote
Ours is a world of nuclear giants and ethical
infants. We know more about war than we know
about peace, more about killing than we know
about living. We have grasped the mystery of
the atom and rejected the Sermon on the
Mount—Omar Bradley

The reviewing judge did not consider whether
the issuing judge could have drawn such
reasonable inferences.

30

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Volume 4 Issue 2
March/April 2004

DRIVER NOT DETAINED WHEN
OFFICER APPROACHED PARKED
CAR
R. v. Calder,
(2004) Docket: C38748 (OntCA)3
A police officer followed a car
into the parking lot of a plaza.
He approached the vehicle on
foot and spoke to the driver
sitting in the vehicle, thereby
detecting a strong odour of alcohol coming from
his breath and noted his eyes were bloodshot.
After admitting to consuming three beers, a
roadside screening test was administered and
the accused failed. He was arrested, cautioned,
advised of his right to counsel, and given the
breath demand. At the police station, two breath
samples exceeding the legal limit were taken.
At his trial in the Ontario Court of Justice, the
accused was acquitted of over 80mg%. The trial
judge dismissed the charge after concluding
there was no legal justification for approaching
the accused because there was no basis for
believing he violated the Highway Traffic Act or
any other legislation. He found the accused had
been arbitrarily detained and, in his view, the
officer “conscripted…the evidence of the odour
of alcohol as he approached the vehicle”. As a
result, the failure on the screening device was
inadmissible for the purpose of providing
grounds for the breath tests and the
breathalyzer results were excluded.
The Crown appealed to the Ontario Superior
Court of Justice. Justice Killeen set aside the
acquittal and ordered a new trial. He found the
trial judge erred:
There are reasons to be found in the
uncontradicted evidence for concluding that
the officer's conduct toward the defendant
at his car did not constitute a detention
within s. 9 at all. There is no evidence that
3

See R. v. Calder [2002] OJ No. 30121 (OntSCJ) for more detailed facts of the
case.

Volume 4 Issue 2
March/April 2004

the officer blocked off the defendant's car
with his cruiser in any way, nor is there any
evidence that, when he was at the
defendant's car, he restrained or inhibited
the defendant in any way. He simply asked
the defendant a straightforward question
about his driver's licence and, in the course
of doing so, smelled alcohol, saw glassy eyes
and received an admission from the accused
that he had been drinking.
At that point, the officer arguably had a
reasonable suspicion that the defendant had
alcohol in his system, giving the officer the
right under s. 254 of the Code to demand a
roadside test, as he did. If a detention
occurred when the demand was made it was
justified under s. 254 and could hardly be
called arbitrary nor could it, for that matter,
lead to an argument that the roadside test
somehow became an unlawful seizure within s.
8 of the Charter. [paras. 30-31]

The accused appealed to the Ontario Court of
Appeal, but in a unanimous endorsement it was
dismissed. The Court ruled:
Like the Summary Conviction Appeal Court
judge, we disagree with [the trial judge’s]
analysis. The officer needed no legal
authority to approach the [accused] while he
was sitting in his vehicle in the public parking
area and he needed no legal authority to
speak to the [accused]. There is no evidence
upon which it could be said that the [accused]
was detained by the officer within the
meaning of detention as explained in R. v.
Therens (1985), 18 C.C.C. (3d) 481 (SCC).
[para. 3]
Complete case available at www.ontariocourts.on.ca

‘DECONSTRUCTING’ GROUNDS
FOR WARRANT IMPROPER
R. v. Saunders, 2003 NLCA 63
Three
confidential
police
informants provided information
that the accused was receiving
hash oil and keeping it at his
house. One source told police he had bought

www.jibc.bc.ca

31

some at the accused’s house while the two other
sources said drugs were there. On the basis of
this information the police obtained a Controlled
Drugs and Substances Act (CDSA) search
warrant, executed it, and found drugs and
money. The accused was charged with possession
of a controlled substance for the purpose of
trafficking contrary to s.5(2) of the CDSA.
At his trial in the Provincial Court of
Newfoundland and Labrador, the trial judge
ruled the police had violated the accused’s s.8
Charter right to be secure against unreasonable
search or seizure. In his view, the warrant was
improperly issued by the justice of the peace. As
a result, the evidence was excluded and the
accused was acquitted.
The Crown successfully appealed to the Nova
Scotia Court of Appeal arguing that the trial
judge failed to examine the “totality of the
circumstances” when assessing the sufficiency
of the information used to support the warrant.
Other issues raised included whether a justice
must specifically state on the warrant that they
are satisfied reasonable grounds exist and
whether night-time searches are restricted
under s.11 CDSA.

Totality of the Circumstances
In a 2:1 judgment, the Nova Scotia Court of
Appeal allowed the appeal and ordered a new
trial. In the majority’s opinion, “the trial judge
‘deconstructed’ every paragraph (and many
phrases within paragraphs) in the information to
obtain, concluding they suffered from some
inadequacy.” As Chief Justice Wells noted:
…the trial judge engaged in a critique of the
information to obtain ... almost as if he were
correcting a student's term paper ... and not
an assessment of the sufficiency of the
information in the "totality of the
circumstances". The approach taken by the
trial judge was like that of a person who
views a painting square centimetre by square
centimetre to identify defects ... which has

32

its place ... but then fails to step back and
view the painting as a whole. [para. 11]

And further:
If one "deconstructs" each item of
information from source "A" and then that
from source "B" and then that from source
"C" and applies the test as against each item
individually, as did the Trial Judge, then the
answer may well be "no", as the trial judge
concluded. But, if one considers the "totality
of the circumstances" one sees that the
information from the three sources is
corroborative inter se; because of this, the
whole of their information becomes greater
than the sum of its parts. To put it another
way, the sequence of pictures drawn by the
three sources tells a consistent story: [the
accused] sold hash oil, he kept it at his
residence, he had hash oil at his residence on
April 1, 2001. As such the whole could enable
the justice of the peace to conclude that
credibly-based probability had replaced
suspicion. [para. 15]

As a result, the majority viewed the whole
picture as capable of supporting the authorizing
justice’s issuance of the warrant.

Warrant Defect
The trial judge concluded that the justice must
be satisfied that reasonable grounds exist and
that such a statement must be contained in the
warrant itself. Otherwise, there would be no way
to determine if the issuing justice reached an
independent conclusion. Although the justice
must be satisfied that there are reasonable
grounds to issue the warrant, the majority held
that there is nothing in law requiring a justice to
specifically state, on the face of a s.11 CDSA
warrant, that they are satisfied reasonable
grounds exist. As Chief Justice Wells stated, “it
would seem more reasonable to take the justice’s
signature on the warrant as signifying that he
had satisfied himself as to the various
requirements set out in section 11 of the CDSA.”

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Volume 4 Issue 2
March/April 2004

Night-Time Searches
The trial judge found that there must be
something in the information from which a
justice could draw an inference that the nighttime search request had a reasonable basis.
Again, however, the majority along with Justice
Welsh disagreed. Section 487 or 487.1 Criminal
Code warrants cannot be executed at night
unless the preconditions under s.488 are
satisfied. On the other hand, s.11 of the CDSA
authorizes searches at any time. Justice Wells
stated:
While he specifically acknowledged that "the
information to obtain [a search warrant under
section 11 of CDSA] does not have to comply
with section 488(b) of the Criminal Code,"
the trial judge nevertheless concluded "there
must at the very least be something in the
information to obtain from which the justice
can draw an inference that the request to
search at night has a reasonable basis". With
great respect to the trial judge, that
conclusion produces precisely the same result
as would flow from a determination that
section 488(b) did apply to a search warrant
authorized pursuant to section 11 of the
CDSA.
The trial judge failed to recognize that
Parliament had separately imposed, by section
488, a prohibition on the nighttime execution
of search warrants granted under sections
487 or 487.1 of the Criminal Code unless the
specified preconditions were met. When
Parliament later enacted the CDSA and
delimited the search warrant granting
authority in section 11, it enacted that
certain of the provisions of the Criminal Code
relating to the granting and execution of
search warrants (e.g. 487.1, 489.1 and 490)
would also apply to search warrants issued
pursuant to section 11 of the CDSA. It did
not direct that section 488 was to apply and
did not, separately in section 11 of the CDSA,
preclude execution of a search warrant by
night unless (a) the justice is satisfied that
there are reasonable grounds for it to be
executed by night; (b) the reasonable grounds
are included in the information; and (c) the

Volume 4 Issue 2
March/April 2004

warrant authorizes that it be executed by
night. The courts must assume that
Parliament was attentive to the prohibition
against nighttime execution and the required
preconditions for any exception set out in
section 488 of the Criminal Code. In all of
these circumstances the inference, again, is
inescapable: Parliament deliberately decided
not to apply the same prohibition and
exception preconditions to search warrants
granted under the authority of section 11 of
the CDSA.
The decision by the trial judge amounts to a
determination by him that Parliament either
ought to have so provided in section 11 or
ought to have made section 488 of the
Criminal Code apply to section 11 search
warrants and he was going to apply the law as
though it had. The trial judge has no
jurisdiction to make such a determination and
this Court has no jurisdiction to approve of a
decision that so offends the separation of
powers principle inherent in the Canadian
Constitution.
Whether a court agrees or disagrees with
that decision of Parliament, it has no right to
make legal determinations that fly in the face
of it, unless it does so in the exercise of the
mandate imposed on courts by the
Constitution. We say this being mindful of
the fact that the place searched, pursuant to
the warrant in issue, was the respondent's
dwelling. However, no constitutional challenge
to section 11 of the CDSA was mounted,
either before the trial judge or before this
Court. The matter was not mentioned by
either party or by the trial judge. There is
therefore no basis for the trial judge
effectively reading into section 11 of the
CDSA the requirements he sought to impose
in this case.
We
conclude,
therefore,
that
the
determination by the trial judge that, in the
case of a search warrant issued pursuant to
the authority of section 11 of the CDSA,
"there must at the very least be something in
the information to obtain from which the
justice can draw an inference that the
request to search at night has a reasonable

www.jibc.bc.ca

33

basis" is, on the law as it presently stands, in
error. [paras. 30-34]

away. (Edited from a Times-Picayune news story,
January 2004.)

Another View

Laws of Irony Strictly Enforced

Justice Welsh disagreed with the majority that
the trial judge erred. In his view, a careful
paragraph by paragraph review is necessary to
assess the reliability of various pieces of
information to identify any deficiencies in order
to determine whether the totality of the
circumstances lacks a valid or substantial
foundation. He found that there was insufficient
information to establish the reliability of any of
the informants, even if their information is
consistent with each other. Further independent
police corroboration could have buttressed the
warrant, but was not undertaken. Justice Welsh
found the search warrant invalid, the search of
the accused’s residence a s.8 Charter violation,
and would have dismissed the Crown’s appeal.

Convicted murderer Paul Charles Denyer, who
told police back when he was arrested that he
had picked three women to kill because he "just
hate(s) (women)," began the application process
at Barwon Prison in Lara, Australia, for hormone
treatment and surgery to become a woman.
(Edited from a News Limited (Australia) news
story, January 2004.)

Complete case available at www.canlii.org

PATROLS ON THE WILD SIDE:
WHERE FACTS ARE OFTEN
FUNNIER THAN FICTION
collected by Cst. Ian Barraclough
Judge Takes a Whipping
In January Judge Peter
Garcia, driving relatives
to his courthouse in
Covington, LA, noticed
an odd sight directly across the street in the
municipal cemetery. Two women in pink lingerie
and holding S&M accessories were posing for a
photo shoot among the gravestones. Garcia
grabbed his camera to take his own souvenir
photo, which apparently angered the women, who
pursued Garcia back to his car, lecturing the
unknown-to-her judge about various "rights" she
thought she had not to be photographed. When
Garcia ignored her, she began to thrash the
judge's car with her whip before he finally drove

34

Thief Fakes
Police

Heart

Attack

to

Outwit

A crafty German thief escaped
police in Berlin after his arrest
by faking a heart attack and
fleeing when his handcuffs
were removed for treatment,
authorities in the western city
of Duesseldorf said Wednesday. "He started
complaining of chest pains in custody and said he
was having a heart attack," a police spokeswoman
said. "It seems he gave quite a convincing
performance, and you can't be too careful in
these situations."
The
40-year-old's
condition
improved
dramatically as soon as his hands were freed for
a scan in hospital and he ran half naked to the
nearest emergency exit. A subsequent police
search found no trace of the man. (Edited from
a Reuters news release, January 2004.)

Chilling Crime
Three men who went streaking
through a Denny's restaurant
were forced to chill out and
wait for the police when they
spotted a thief drive off in
their getaway car with their
clothes inside. Stranded naked outside Denny’s in
the January weather, the three young men
huddled together in the parking lot until police
arrived. "I don't think they were hiding. I think

www.jibc.bc.ca

Volume 4 Issue 2
March/April 2004

they were just concealing themselves," police
spokesman Dick Cottam said. The three entered
the restaurant before daybreak, wearing only
shoes and hats.
They left their car running so they could make a
quick getaway…but the streakers had the tables
turned on them in Denny’s as they stared out the
window in disbelief. A man who just finished his
breakfast inside the restaurant drove off in
their car. No charges were brought against the
streakers. "I think it was just three kids who
decided to fool around," Cottam said. He added,
"We always tell people to not leave their car
running." (Edited from an Associated Press news
report, January 2004.)

Works Slows Down At An Israeli Police
Station
Israeli police had to close an
entire floor of their station
because the pungent scent of
tons of confiscated marijuana
was making them high, an
Israeli newspaper reported.
The drugs, smuggled from Egypt, are kept in a
storeroom of a police station in the southern
town of Dimona. Police have confiscated so much
pot that their storeroom is filled to capacity.
"Every time I came to work I felt...like I was
high," the Maariv newspaper quoted one officer
as saying. "The smell of marijuana was killing us it was impossible to work." The newspaper said a
police medical officer ordered personnel to move
to another floor until all the drugs could be
destroyed. (Edited from a Reuters news release,
January 2004.)

Knife-Wielding 90-Year-Old Kiwi Sends
Intruder Packing
A
90-year
old
New
Zealand man grabbed a
carving knife from his
kitchen and chased away a
masked intruder who had
threatened his wife with a

Volume 4 Issue 2
March/April 2004

butter knife. The intruder waved the flimsy
weapon at David Saulbrey's wife when she tried
to ring the police to report a break-in at their
home near Wellington, the Dominion-Post
newspaper reported.
Saulbrey, who failed to hear the hapless
intruder's demand for money because he was not
wearing his hearing aid, then beat the burglar in
a search for a more threatening weapon. "Once I
got the carving knife I said, “Now you bastard,
you're in for it!”
“With that he threw his knife at me and took off
out the door," Saulbrey told the police. "I was
that bloody wild I would have stuck (the knife) in
his Adam's apple," he said. New Zealand police
said they did not recommend confronting an
armed intruder but praised Saulbrey's bravery.
"He's a tough old bugger. You wouldn't think he
was 90, that's for sure," Detective Scott Cooper
was quoted as saying. (Edited from a Reuters
news release, January 2004.)

Saying 'Cheese'
Thieves

Incriminates

Camera

Two
Chinese
thieves
captured more than they
had bargained for when
they took pictures of each
other with stolen digital
cameras, reported the China Daily newspaper in
January. They were both arrested when trying
to sell the cameras to passersby in eastern
Changzhou city, arousing suspicions of the police.
"Having stolen some cash and three digital
cameras, they were so excited that they took
photos of each other," the newspaper said. "But
neither of them knew how to delete the stored
pictures."

Mustache Means Money
Police in northern India are being paid an extra
65 cents a month to grow a mustache to give
them more authority, a newspaper reported in
January. Mayank Jain, a superintendent with the

www.jibc.bc.ca

35

Madhya Pradesh state police, told The Asian Age
that research showed that police with mustaches
were taken more seriously. However, he added,
the shape and style of police mustaches would be
monitored to ensure they did not take on a mean
look. (Edited from a Reuters news release,
January 2004.)

Car Thieves Call Police for Help
Two Danish car thieves called
police for help when they
realized the angry victim of
their latest crime was in hot
pursuit in another car. The
car's owner decided to chase
the men after witnessing the theft from his
home in northern Denmark, the local daily
Berlingske Tidende reported. The hapless
thieves, aged 19 and 21, called the police to
report themselves and asked to be picked up at a
nearby road, the newspaper said. (Edited from a
Berlingske Tidende news story, January 2004.)

Skeletons in the Closet
Three fugitives scrambled
into an attic to elude police
but surrendered when they
found a human skeleton in
their
hideaway,
Florida
police reported. The two men and a woman were
wanted on probation violation charges and
climbed into an attic to hide when police tracked
them down in Daytona Beach, police Sgt. Al
Tolley said.
Police noticed a hatch leading to an attic above a
second-story bedroom, and opened it. One of the
suspects called out, "Get me out of here.
There's a dead body up here," Tolley said. The
three were arrested and investigators were still
trying to identify the skeletal remains. A tenant
told police she had lived there about three
months and had noted a foul odor but could not
locate the source. (Edited from a Reuters news
release, January 2004.)

36

ASD NEED NOT BE TESTED
BEFORE DEMAND MADE
R. v. Danychuk,
(2004) Docket:C39898 (OntCA)
A police officer stopped the
accused driving after observing
a vehicle weaving over the
broken lines of a lane. An odour
of alcohol was detected coming
from inside the vehicle and the accused
admitted to drinking two beers. He complied
with a request to accompany the officer back to
the police car and sit in the rear. A roadside
screening device (ASD) breath sample was
demanded, but the accused refused. The officer
cautioned him about the consequences of
refusing. When asked if he would provide a
sample, the accused said, “No, I will go to court.”
Although the officer had the screening device
beside him, it had not been tested.
At his trial in the Ontario Court of Justice the
accused was convicted. The judge concluded that
the officer had the ASD available forthwith, to
be tested and then presented to the accused for
a breath sample. However, on appeal to the
Ontario Superior Court of Justice the conviction
was overturned and an acquittal was entered. In
the appeal justice’s view, it had not been proven
that the ASD was available forthwith because it
had not been tested to ensure it was ready to
accept a sample—the officer had not yet
presented it, and the purpose of the test and
the consequences of refusing had not been
explained.
The Crown successfully appealed to the Ontario
Court of Appeal. Subsection 254(5) of the
Criminal Code creates an offence for a person to
fail or refuse, without reasonable excuse, to
comply with a demand for a breath sample into
an ASD under s.254(2). The demand requires the
person to “provide forthwith” a breath sample.
This imposes a duty on the police to administer
the test “as soon as reasonably practicable or

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Volume 4 Issue 2
March/April 2004

within a reasonable time having regard to the
provision and circumstances of the case.” As
Justice Blair, authoring the 3:0 judgment, noted:
The rationale for this requirement is that
unless the police officer is in a position to
require a breath sample to be provided
before there is any realistic opportunity for
the detained person to consult counsel, that
person’s s.10(b) Charter right to counsel may
be unjustifiably infringed, and therefore a
demand cannot be validly within the scope of
subsection 254(2). [para. 15]

Justice Blair disagreed with the accused’s
submission that a valid demand requires proof
the police were immediately ready to administer
the test or that they advised the motorist of
the process and consequences of not complying
with the demand. Justice Blair stated:
As I read the language of subsection 254(2)
and appreciate its context, however, I see
nothing in it mandating - either expressly or
by implication - that before a demand may be
made the approved screening device must be
warmed up and tested as operational and the
police officer must have explained the
process and the consequences of a failure to
comply. Respectfully, it is an unwarranted
extension of the foregoing authorities to
read such requirements into the section
where the accused had categorically refused
to provide the requested breath sample, and
the summary conviction appeal judge erred in
law in doing so.
[The accused] refused, unequivocally, to
provide a breath sample. This court has held,
in such circumstances, that the Crown need
not even demonstrate the device in question
was an approved screening device as a
prerequisite to a valid demand…In addition,
this court and others have held that in such
circumstances the Crown does not have to
show an approved screening device was in the
possession of, or immediately available to, the
police officer at the time of the demand…
In my opinion, while it may be sensible for a
police officer to make sure the device is
working and the motorist apprised of the

Volume 4 Issue 2
March/April 2004

process and the consequences of noncompliance, it cannot be said - in the face of
these authorities - that these matters
constitute prerequisites to a valid demand for
a breath sample under subsection 254(2), in
my
opinion…[paras.
19-21,
references
omitted]

And further:
A demand will not be a valid demand under
subsection 254(2) if the police are not in a
position to administer the test "forthwith", i.e.
in a timely fashion before there is any realistic
opportunity to consult counsel…However, these
cases do not stand for the proposition that
the police must be in a position to "make the
demand good" the instant the request is made.
In fact, the opposite is true. [para. 23,
references omitted]

In summary, Justice Blair held:
A timely demand is validly made pursuant to
subsection 254(2), in my opinion, where (a)
the individual to whom the demand is made
has been operating a motor vehicle, or has
care or control of that vehicle, (b) the peace
officer who makes the demand reasonably
suspects that the individual to whom the
demand is being made has alcohol in his or her
body, and (c) the police officer is ultimately
in a position to require that the breath
sample be provided before there is any
realistic opportunity to consult counsel.
Where, as here, there has been an outright
refusal to provide a breath sample, it is not a
prerequisite to such a demand that the Crown
establish the approved screening device was
present at the scene, tested and ready to
accept a sample, or that the police officer
presented the device to the driver and
explained the purpose of the test and the
consequences of a failure to provide a sample.
[para. 26]

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

www.jibc.bc.ca

37

ANTICIPATORY WARRANT:
LAST, NOT FIRST RESORT
PROVISION
R. v. Brooks,
(2003) Docket: C35693 (OntCA)
As a result of confidential
information and surveillance,
the police had reason to believe
the accused was involved in a
dial a dope cocaine trafficking scheme. She
would contact customers by cell phone and
arrange a meet to deliver the cocaine. She only
kept a small quantity with her, and would return
to her residence to get more drugs when her
supply ran low. The police received information
that the accused was going to be very active the
next day. They obtained a general warrant under
s.487.01 of the Criminal Code from the Ontario
Court of Justice allowing them to enter and
search the accused’s residence for cocaine and
other evidence, provided certain pre-conditions
were met after conducting surveillance. Before
executing the warrant on her home, the following
would need to be satisfied:
•

•

three hours before entry, the police must
observe the accused as a driver or passenger in
a motor vehicle and on reasonable grounds
believe she was delivering drugs; and
upon her arrest and search, the police needed
to find cocaine in or ejected from the vehicle.

The pre-conditions were satisfied and the police
searched the accused’s residence. Marihuana, a
loaded handgun, crack cocaine, and other
evidence were found. At her trial in the Ontario
Court of Justice, the evidence was admitted and
the accused was convicted of cocaine possession
for trafficking, marihuana possession, and
weapon possession. The trial judge concluded
that the pre-conditions were not only
unauthorized by the warrant provision, but also
unnecessary to the validity of the warrant. In
his view, the warrant was valid without the
unauthorized pre-conditions and the evidence
obtained was admissible.

38

The accused appealed to the Ontario Court of
Appeal arguing, among other grounds, that the
police had other provisions in the Criminal Code
or Controlled Drugs and Substances Act
available to them to obtain a search warrant.
Therefore the statutory requirement of
s.487.01(1)(c) was not satisfied. Justice
Moldaver, writing the unanimous appeal judgment
agreed.
Section 487.01, also known as an anticipatory
search warrant, allows the police to execute a
warrant provided certain pre-conditions are met.
However, s.487.01(1)(c) only allows a general
warrant to be issued if “there is no other
provision [in the Criminal Code] or any other Act
of Parliament that would provide for a warrant,
authorization or order permitting the technique,
procedure or device to be used or the thing to
be done.” It is a last resort, rather than a first
resort provision.
In this case, “leaving aside mere possibilities,
the police had no reason to believe that the
[accused’s] arrest would trigger the destruction
of drugs or other evidence at her residence
before the police could obtain a conventional
warrant to search it.” In other words, the police
could have arrested the accused and then
applied for a traditional search warrant to enter
and search her residence. Since the police did
not comply with the statutory pre-condition of
s.487(1)(c), the warrant was invalid. As a result,
the accused’s s.8 Charter right protecting her
against unreasonable search or seizure was
violated.
Despite the breach however, the Ontario Court
of Appeal admitted the evidence under s.24(2).
The police acted in good faith, had reasonable
grounds to search the residence, and the
exclusion of the evidence, not its inclusion, would
bring the administration of justice into
disrepute. The accused’s appeal was dismissed
and her conviction upheld.
Complete case available at www.ontariocourts.on.ca

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Volume 4 Issue 2
March/April 2004

OWNERSHIP CLAIM DOES NOT
ALTER SEARCH INCIDENT TO
ARREST
R. v. Mohamad,
(2004) Docket: C36120 (OntCA)
After receiving information
from
Custom’s
officials
investigating the exportation of
a stolen vehicle to Amsterdam,
a police detective attended a
used car business where a Yukon truck was
reportedly parked that had the same vehicle
identification number (VIN) as the VIN declared
on the vehicle subject for exportation. The
officer blocked in the Yukon truck being driven
on the lot and spoke to the driver. The officer
noticed that the Yukon’s VIN was glued to the
dashboard, rather than riveted in accordance
with manufacturer standards. This was also the
case for a van parked beside the truck, causing
the officer to conclude the original VINs had
been removed and false VINs attached.

accused had removed the briefcase from the van
and entered a neighbouring building. The officer
located the accused and told him to take the
briefcase back to the van so he could thoroughly
search it before giving it to him. He returned
the briefcase to the van and its contents were
searched. In it, police found sealed envelopes
containing counterfeit VIN plates, stickers,
parts, and certification labels. The accused
denied knowledge of these items or how they
came to be in his briefcase. Other documentary
evidence was also found in the briefcase
including the accused’s passport and driver’s
licence. He was arrested and charged with
possession of the stolen truck and van as well as
a third vehicle later found at the used car
business.
At his trial in the Ontario Superior Court of
Justice, the accused argued that the police had
no authority to open and search the briefcase
once it was learned he owned it. In his
submission, he had not been arrested, was not a
suspect in any crime, and no basis existed to
issue a search warrant until after the briefcase
was opened. Thus, he contended his rights under
s.8 of the Charter had been breached and the
evidence was inadmissible. The Crown, on the
other hand, asserted that the police were
permitted to search the van and its contents to
discover and preserve evidence as an incident to
the arrest of Jebo, the business owner.

The driver said the truck belonged to the owner
of the used car business, Mr. Jebo. Jebo was
arrested for possession of stolen property and a
tow truck was called to attend the scene to
remove the truck and van for forensic
examination. The van was unlocked and the keys
were in the ignition. The officer entered the van,
took a look around, and saw a briefcase. He
looked inside the briefcase and saw documents
with the accused Mohamad’s name. As the tow
truck arrived, the accused approached the
officer telling him the briefcase was his and
that he had forgotten it in the van after test
driving it an hour earlier. When asked about the
van, the accused said he was going to but it. A
further search of the briefcase revealed the
presence of a dealer’s licence plate, air tickets
to Amsterdam, and shipping documents for the
van to Amsterdam.

The trial judge agreed with the Crown and found
no Charter violation. In his view, the officer had
seized the stolen van and had the authority, as
an incident to Jebo’s arrest, to inspect it and its
contents. The fact the accused had appeared on
the scene and claimed ownership of the
briefcase did not alter the officer’s authority to
search. The accused appealed to the Ontario
Court of Appeal arguing, among other grounds,
that the trial judge erred in admitting the
evidence from the briefcase search.

The officer left to give instructions to the tow
truck operator, but on return discovered the

Section 8 of the Charter protects a person’s
reasonable expectation of privacy against

Volume 4 Issue 2
March/April 2004

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39

unreasonable governmental intrusion. Thus, for a
person to argue that their s.8 right has been
violated, they must first demonstrate that they
had a reasonable expectation of privacy. If this
burden is met, the next consideration is whether
police conducted the search reasonably.
Whether a person has a reasonable expectation
of privacy depends on the totality of the
circumstances—it’s a contextual approach. Here,
the accused did not contend he had privacy in
the stolen vehicle, but rather only in the
contents of the briefcase. In holding that the
owner of a briefcase has a privacy interest in its
contents, Justice Cronk stated:
In the contemporary context, briefcases
often house highly confidential personal and
business information. They can serve, in a
practical sense, as portable offices for their
owners. In my view, owners of briefcases
generally have a reasonable expectation of
privacy in the contents of their briefcases.
[para. 25]

However, even where a person can establish a
privacy interest in the thing searched, the
search will not infringe s.8 if the police have the
lawful authority in the circumstances to search
it. One such authority, search incident to arrest,
was described by Justice Cronk as follows:
Search incident to arrest does not require a
warrant or independent reasonable and
probable grounds for the search. In those
respects, it is an exception to the ordinary
requirements for a reasonable search.
Rather, the right to search derives from the
fact of the arrest, which itself requires
reasonable and probable grounds or an arrest
warrant. If the arrest is unlawful, the search
is also unlawful…[para. 28, references
omitted]

In this case, the accused did not contest the
lawfulness of Jebo’s arrest, the manner of the
search, or its warrantless nature. Rather, he
suggested that once the accused claimed
ownership, continuing to search the briefcase
contents exceeded the incidental search scope

40

because there were no grounds to believe the
accused committed a crime or that the briefcase
contained evidence.
The law is clear that a search incidental to
arrest requires a legitimate purpose connected
to the arrest. As Justice Cronk noted, “The
legitimate purposes of search incident to arrest
extend to the protection of evidence from
destruction at the hands of the arrestee or
others and to the discovery of evidence that can
be used at the arrestee's trial.” The officer
testified he was looking in the briefcase to
locate evidence concerning the theft of the van
and the “re-VINing” scheme. He said he had
seized the van and the trial judge found he had a
duty to inspect it and its contents to discover
and preserve any evidence. The Ontario Court of
Appeal agreed. Justice Cronk held:
[The officer] had one of the purposes of a
valid search incident to arrest in mind when
he conducted his search of the briefcase,
that is, the discovery of evidence concerning
the charges against Jebo. It was open to the
trial judge to accept [the officer’s] assertion
of a bona fide subjective belief that he was
authorized to search the briefcase for that
law enforcement purpose. There is no
suggestion that [the officer’s] belief changed
at any point throughout the occasions when
he searched the contents of the briefcase.
In my view, [the officer’s] subjective belief
that searching the contents of the briefcase
might lead to the discovery of evidence
concerning the charges against Jebo was a
reasonable one in all of the circumstances.
The Plymouth van, which contained the
briefcase, was directly implicated in the
charges against Jebo. The van and the
briefcase were located on the premises
where Jebo was arrested and [the officer]
searched the contents of the briefcase a
short time after Jebo's arrest. The search
of the briefcase, therefore, was closely
connected to the arrest of Jebo.
Viewed in that context, I agree with the trial
judge that the [accused’s] attendance at the

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van and his claim to ownership of the
briefcase did not "alter the scope of [the
officer’s] authority" to search the briefcase.
Although [the officer] knew the [accused]
from "the past", the record before us does
not indicate how he came to know the
[accused] or how well he knew him. There is
no suggestion that his prior knowledge of the
[accused] was sufficient to persuade him that
the [accused’s] assertion of ownership of the
briefcase was true or that, in light of it, the
[accused] was an innocent and uninvolved
third party.
[The officer] was not obliged to simply
accept the [accused’s] assertions of
ownership of the briefcase and of an innocent
explanation for its presence in the stolen van,
and to terminate the search of the briefcase
on the basis of those assertions. That
proposition, urged by the [accused], defies
common sense and, if accepted, would render
the search incident to arrest power
meaningless in circumstances where, but for
the ownership claim, it is being lawfully
exercised for the purpose of discovering or
preserving evidence relating to a crime.
[paras. 37-40]

And further:
Here, on each occasion that [the officer]
opened the briefcase, he undertook his
search of its contents for the purpose of
discovering evidence relating to the crimes
for which Jebo had been arrested. The
searches were grounded in Jebo's arrest and
were carried out in a vehicle known to have
been stolen.
In these circumstances, I conclude that the
requirements for a valid search of the
[accused’s] briefcase under the search
incident to arrest power were met. The
search of the contents of the briefcase was
not unlawful or unreasonable and, hence, the
evidence obtained from that search was
admissible. [paras. 47-48]

The accused’s appeal against conviction was
dismissed.
Complete case available at www.ontariocourts.on.ca

Volume 4 Issue 2
March/April 2004

STATUTORILY COMPELLED
STATEMENT VIOLATES
CHARTER s.7
R. v. Zwicker, 2003 NSCA 140

A motor vehicle, owned by the
accused, was involved in an
accident, but the driver failed
to remain at the scene as
required by law. The accused
was served a notice under s.258(1) of Nova
Scotia’s Motor Vehicle Act (Act) requiring a
registered owner, at the request of a peace
officer, to supply the name and address of the
person in charge of the vehicle at the time of a
violation of the Act. Failure to furnish such
information is a summary offence. The accused
admitted she was the driver at the time of the
accident and she was charged with failing to stop
at the scene and failing to yield the right of way
under the Act.
At her trial in Nova Scotia Provincial Court, the
judge concluded that the admission of the
statutorily
compelled
statement
provided
pursuant to the Act violated the accused’s rights
under s.7 of the Charter—the principle against
self incrimination—and was inadmissible under
s.24. The accused was acquitted. The Crown
appealed to the Nova Scotia Court of Appeal
arguing that the trial judge erred in both finding
a s.7 breach as well as excluding the statement
as evidence.
Justice Hamilton, writing the unanimous
judgment, upheld the trial judge’s ruling. Section
7 of the Charter states:
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.

Because the accused could be imprisoned,
although remote, if she were found guilty of the
“quasi criminal” charges under the Act, it was
nonetheless a real possibility and thus had the

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41

potential of depriving her of her liberty.
Therefore, s.7 of the Charter was engaged. The
Nova Scotia Court of Appeal also agreed with
the trial judge’s assessment that the admission
of the statutorily compelled statement would
offend the principles of fundamental justice.
The four main factors to consider in such a
determination are:
•
•
•
•

whether there was coercion;
whether
there
was
an
adversarial
relationship;
whether the statement would likely be
unreliable; and
whether there was potential for abuse of
power in the obtaining of the statement.

In this case, the trial judge concluded the
coercion factor was neutral. The Crown had
unsuccessfully argued that because people
choose to drive or not, those that do drive
freely consent to the application of s.258 of the
Act. However, an adversarial relationship
existed. The accused was personally served the
notice by a police officer and they received a
response the next day. As well, there is a strong
incentive for someone to lie if the statement is
not protected from being used against the
person—thus the prospect of an unreliable
statement is very real. Finally, abuse of power
was a factor properly considered by the trial
judge. As Justice Hamilton stated:
Once a person is compelled by s. 258 of our
Act to tell the police what may often be one
of the essential elements of an offence, they
may be more apt to believe they should
provide more detail. Personal delivery of the
notice under s. 258 of our Act gave the police
a foot in the door so to speak that may lead,
intentionally or unintentionally, to the police
seeking more information and depriving the
owner of the principle against selfincrimination. [para. 37]

The statement was properly ruled inadmissible
and the appeal was dismissed.

42

FINDING FUN IN
FITNESS

Sgt. Kelly Keith, JIBC
Running
If you want to increase your endurance try
PLYOMETRIC strides, also known as bounding.
This is an exaggerated running stride that places
stress on the running muscles through a range of
motion that is greater than normal. Find a
smooth, gradual hill that is not too steep—grass
is best. Run up the hill—springing—off your toes
with each stride and land on the ball of your
other foot. Just after your foot touches the
ground, let your heel touch the ground and
simultaneously allow your knee to bend more than
normal.
This pre-stretches your muscles in
preparation for the next leg extension and toeoff.
Bound up the hill for 30-50 yards, jog down, and
repeat three or four times. Do this once per
week adding one or two reps per week until you
can do 10 reps with good form, then lengthen the
distance to 100 yards. You will not only improve
your running, you will also decrease your injuries
and increase your strength.
Make sure to
stretch your quads and calves after your
workout! You may be self conscious about how
this looks, however the benefits will come fast
and will far outweigh the downside !

Workout
Try working out on a mirror image basis of your
muscles. The workout is done on a super-set
model. The pairings are as follows:
•
•
•

Chest/Back/Shoulders - Day 1
Biceps/Triceps/Abs/Lower Back - Day 2
Quads/Hamstrings/Calves - Day 3

On Day 1 your first set is bench presses
followed immediately by rows to complete your
first set and so on and so on. Don’t get caught
up in which specific exercises you do. However,
by doing your workout with these pairings and

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Volume 4 Issue 2
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super setting each set (change order every
other workout such as rows then bench press on
following work-out) it will give you a change of
pace.

Tips to Increase Bench Press
•
•
•

•
•
•

Plant your feet firmly on the floor and drive
them hard into the floor;
Use a thumb lock grip (wrap thumbs around
the bar);
Vary your bench press grip width from
workout to workout. However, the optimal
grip is one that results in a 90 degree angle
at your armpit and 90 degree at your elbow
when the bar touches your chest at the
bottom;
Don't press the bar in a curved motion—go
straight up;
Incorporate deep dumbbell work; and
Pull your shoulder blades together and
contract your lats.

Nutrition
Meat cuts with "loin" in them tend to have less
fat such as pork tenderloin. If you buy ground
turkey—ensure it is ground turkey "breast".
Remember—“FAT FREE" does not mean healthy.
Take a look at how much sugar is in fat free
yogurt then compare this with natural
unflavoured yogurt that you can add fruit to and
you will have a low fat healthier snack !

Food For Thought
While reviewing the recruits’ fitness reports, I
constantly see them working on their strengths
rather than their weaknesses. For example, a
thin recruit that can run is spending three times
the time and energy on aerobic exercise, rather
than strength exercises. Spending time on our
strengths can often be more fun, however, by
spending time on our weaknesses we will become
better rounded. How do you spend your fitness
related time - on your strengths or weaknesses?

Note-able Quote
If there’s no wind, row—Unknown

Volume 4 Issue 2
March/April 2004

CRIMINAL HARASSMENT:
CONTENT MATTERS
R. v. Scuby, 2004 BCCA 28
The accused left nine telephone
messages for a police detective
who was a member of the
Domestic Violence Unit. The
detective had been investigating the accused as
a suspect in a break and enter that occurred at
his former girlfriend’s mother’s home. Five
messages, all in short succession, were left on
the mother’s answering machine and the other
four, again in rapid succession, were left on the
detective’s workplace voice mail. The messages
were threatening in tone against the detective
and his family. The accused was charged with
criminal
harassment
for
the
repeated
communication. However, in British Columbia
Provincial Court he was acquitted. The trial judge
concluded that the content of the messages,
rather than their repeated nature, led to the
detective’s fear. In the judge’s view, the
harassment envisioned by s.264 must be
grounded in the “repeated communication”, not
the words used.
An appeal by the Crown was successful. In
setting aside the acquittal and ordering a new
trial, Justice Prowse of the British Columbia
Court of Appeal found the trial judge erred in
separating the quantity of the calls from their
content in determining whether the detective
was harassed. A court must consider the
content, context, and repetitious nature of the
calls, rather than the number of calls by itself.
Justice Rowles, in an accompanying opinion,
added,
“[t]he
‘communicating’
found
in
s.264(2)(b)
comes
from
the
verb
to
communicate, or to share or exchange
information or ideas. The act of communication
means the transmission of information, thought
or feeling so that it is received and understood.
While it may not be so in every case, generally an
examination and consideration of the content of
the message would be essential to the

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43

determination of whether a complainant was
‘harassed’ by the repeated communication.” In
other words, the content, not just the number of
calls, is relevant in assessing whether a person is
harassed.
Complete case available at www.courts.gov.bc.ca

OFFICERS DOWN
Sgt. Dave Schmirler, Abbotsford Police
At around 2am on Monday
February 16, 2004 officers
Matthew Bowens (21 years)
and his partner Jennifer
Fettig (26 years) initiated a
traffic stop on a rusted 1989
Chev pickup owned and driven
by Eric Lee Marshall (22
years). Marshall had apparently tried to pick up
a local prostitute. Although taught a technique
in the academy where one officer remains at the
car watching the occupant(s), both officers
returned to their patrol car to initiate computer
queries. Neither must have sensed any danger
as they did not notify dispatch of the stop. The
press would later call it a “routine traffic stop”.
Had the computer check been completed the
officers would have learned that Marshall had no
criminal record. However, they would not have
known that he had recently decided to set up a
drug operation and was in possession of a street
purchased .40 caliber Glock. As both officers
sat in their car Marshall exited his truck and
went to the rear. From here he began firing into
the patrol car, blowing out the window and
wounding Bowens. Marshall fled to a nearby
fence line. Bowens exited his car, called for
assistance, and moved to cover at the rear of his
patrol car. This was the last broadcast that he
would make. From a distance Marshall continued
to fire at the officers hitting Fettig in the face
as she sat in the passenger side of the car.
Bowens would be shot nine times, including a shot
to the head. Marshall took Bowen’s gun and fled
the scene.

44

Matt Bowens would die at the scene and
Jennifer Fettig would die hours later.
Investigators found 22 x .40 calibre shell
casings.
Published reports indicate neither
officer returned fire. The shooting was partially
captured by the in-car camera.
With the deaths of officers Fettig and Bowens,
a disturbing trend of officers being killed
together continued. Since January 2003, 14
officers (seven pairs) have been killed in North
America.
February 2003—Alexandria, LA
PFC David Ezernack and patrolman Jeremy
Carruth were shot and killed during an SRT
operation to arrest a man who had ambushed an
officer the previous day, firing an automatic
rifle into the car. The suspect opened fire on
SRT members effecting the arrest.
March 2003—New York, NY
Detective James Nemorin and Detective Rodney
Andrews were involved in the undercover
purchase of a Tec–9 gun when they were each
shot in the head as they sat in their vehicle.
Surveillance units, who had been forced to leave
their view of the officers, heard the exchange
on the audio hook up.
June 2003—Fayette, AL
Corporal James Crump and Officer Arnold
Strickland (along with a police dispatcher) were
killed in the booking area of the Fayette Police
Department when a vehicle theft suspect
grabbed one of the officers’ service guns.
December 2003—Abbeville, SC
Sergeant Daniel Wilson was taken hostage and
shot while attending to a property dispute. The
suspects called police to report that an officer
had been shot—then opened fire on two other
officers responding to the call.
Constable
Donnie Ouzts was struck and killed. The attack
was pre-planned.

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Volume 4 Issue 2
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December 2003—Mishawaka, IN
Corporal Thomas Roberts and Patrolman Bryan
Verkler were shot and killed after they
attempted to lure a “shots fired” suspect out of
a house. The suspect exited and opened fire on
officers, killing both.
January 2004—Athens, AL
Officer Anthony Mims and Sergeant Larry
Russell were ambushed and killed while
responding to a call of a man wanting to speak
with the FBI. Mims was shot and killed in his car
as he arrived and Russell was shot and killed as
he attempted to get out of his car.
For those of us in Canada, do we write this trend
off as a “United States” problem?
Do we
remember Constable Denis Strongquill? He and
his partner approached three occupants in a
truck because they matched the description of
armed robbery suspects. The suspects shot at
the police car, chased it into the town of Russell,
and rammed it in front of the detachment
office. Constable Strongquill was killed because
he was trapped in his police vehicle after
suspects rammed it. He never had a chance to
exit and was unable to return fire due to a pistol
malfunction.
For police officers and trainers, this disturbing
trend forces us to analyze what is happening.
Are we still thinking tactically at every call? Do
we abandon safety procedures in favour of
efficiency and convenience? Is there a better
way to do things? More importantly, are we
prepared to defend against a determined
adversary waiting in ambush or that is willing to
initiate an armed or relentless assault? Do we
really train to expect the unexpected? Do we in
fact expect the unexpected on every call? As
determined suspects, sometimes with military
training or mental illness, ambush and attack
officers with incredible lethal force we have to
elevate our thinking. Do we think we have safety
in numbers at the expense of tactics?

Volume 4 Issue 2
March/April 2004

I don’t know the answers. I can only try and
change my mindset and help those I am
responsible for. I only hope that the deaths of
others would cause us to think and reflect.

STRAIGHT SHOOTIN’ FROM
THE BENCH
“Surely, the officer was not supposed to read
the appellant his [s.10 Charter] rights while he
was asleep.”—Madame Justice L’Heureux-Dubé in
R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.)

*********

“It would be impractical to expect of an officer
swearing an information [for a search warrant] in
these circumstances the precise prose of an
Oxford grammarian, the detailed disclosures of
a confessional and the legal knowledge of a
Rhodes scholar.”—Justice Gibbs in R. v.
Melenchuk (1993), 24 B.C.A.C. 97 (B.C.C.A.)

*********

“No one but lawyers and judges would have any
difficulty deciding that the appellant, whom I
shall call ``the accused'', imported nearly a
pound of heroin into Canada when he arrived at
the Vancouver International Airport… This would
especially be so when, upon being informed by a
customs officer that he would be X-rayed, the
accused admitted, as was later confirmed, that
he had that quantity of packaged heroin in his
stomach
and
intestines.”—Chief
Justice
McEachern in R v. Oluwa (1996), 107 C.C.C. (3d)
236 (B.C.C.A.)

*********

“[Proof beyond a reasonable doubt and the
presumption of innocence] are forever as closely
linked as Romeo with Juliet or Oberon with
Titania and they must be presented together as
a unit. If the presumption of innocence is the
golden thread of criminal justice then proof
beyond a reasonable doubt is the silver and
these two threads are forever intertwined in the
fabric of criminal law.”—Justice Cory in R v.
Lifchus, [1997] 3 S.C.R. 320 (S.C.C.)

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45

POLICE PERMITTED TO
PROTECT CRIME SCENE

SAFETY SEARCH OF DETAINEE
REASONABLE

R. v. Edwards & Edwards, 2004 ABPC 14

R. v. Davis, 2004 ABCA 33

The police were investigating a
homicide near a nightclub and
cordoned off the area using
yellow tape. Several vehicles
were
parked
within
the
restricted area and officers were posted to
keep persons out of the crime scene until
identification officers had cleared. The two
Edwards brothers sought to have access to their
vehicle, which was parked within the taped off
area, but were denied. They insisted they had
the right to enter, argued with police, and yelled
obscenities. A crowd began to gather and the
two brothers were subsequently arrested for
causing a disturbance.

The police responded to a call
that the accused was engaged in
several drug transactions. The
attending officers saw the
accused, who matched the
description of the suspect. He was detained for
investigation, handcuffed, and frisk searched. A
bulge was detected around his shin, which turned
out to be a cardboard Pringles chip container.
Police opened the container to look for weapons
and found it to contain crack cocaine. The
accused was arrested, charged, and convicted in
the Alberta Court of Queen’s Bench with
possession of cocaine for the purpose of
trafficking. However, he appealed to Alberta’s
highest court, arguing the detention and search
were unlawful.

At their trial in Alberta Provincial Court, Justice
Allen examined whether it was within the scope
of police duties to prohibit public access to
property within the boundaries of the crime
scene. The Justice concluded that restricting
persons from accessing their property on city
streets amounted to an interference with their
personal liberty, but was justified under the
police common law duty to investigate crime.
In this case, the accused’s vehicle was legally
parked and had the misfortune of becoming part
of a temporary crime scene. However,
“[p]reventing the accused from intruding upon an
area that may have contained incriminating
evidence was a justifiable use of police powers
associated
with
investigating
the
murder…Investigating crime is crucial to
apprehending
suspects,
and
prosecuting
offenders. The temporary inconvenience to the
accused was necessary to properly secure
evidence from the scene,” ruled the justice. Both
accused were convicted.
Complete copy available at www.albertacourts.ab.ca

In a 3:0 judgment, the Alberta Court of Appeal
unanimously dismissed the appeal. The police had
articulable cause to detain the accused to
investigate whether he had just committed a
series of drug deals. Since he was properly
detained, the police were entitled to search him
for safety reasons provided it was done in good
faith. The appeal court rejected the accused’s
assertion that the only way the chip container
could be searched is if the officer expected to
find a weapon inside. The trial judge found it
reasonable and prudent for the officer to open
the container and determine its contents for
safety reasons. Given the size and utility of the
canister as a hiding place for a weapon, the trial
court’s ruling was not in error said Justice
Berger. In all the circumstances the search was
reasonable.
Complete case available at www.albertacourts.ab.ca

Note-able Quote
An ounce of action is worth a ton of theory—
Friedrich Engels

46

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SUBTLE, BUT SIGNIFICANT
NUANCE RESULTS IN BREACH
R. v. Webster, 2004 BCPC 19
The accused was read the
breath demand and advised of
his right to counsel from the
standard police issue card after
being stopped driving by police.
The accused said he understood and told the
officer he wanted to speak to a lawyer. The
following conversation followed:
Officer: Do you want a lawyer?
Accused: Not at this point.
Officer: Will you want to?
Accused: Probably. I don’t know.
Officer: Do you want counsel, either one you
know or Legal Aid?
Accused: I’m from out of town. I don’t know any
in town.
Officer: There are several local lawyers, if you
want to choose one, or there’s Legal
Aid that can be contacted. Is Legal Aid
okay for you?
Accused: Legal Aid will be fine.
He was taken to the police station and spoke
with duty counsel in private for about six
minutes. Two breath samples were taken and a
number of questions were asked in between the
samples—he was charged with impaired driving
and over 80mg%. In British Columbia Provincial
Court, Justice Blake found the accused’s right to
counsel under s.10(b) of the Charter had been
violated. In the judge’s view, the accused
erroneously believed his choice of counsel was
limited to local lawyers, a fact the officer should
have known when the accused said he did not
know any in the area. The officer had a duty to
correct this faulty assumption as part of the
proper informational component of s.10(b).
Nevertheless, the evidence was admitted
because its admission would not bring the
administration of justice into disrepute.

MANITOBA’s TOP COURT
UPHOLDS WARRANTLESS
ENTRY & ARREST
R. v. Guiboche, 2004 MBCA 16
The police responded to a home
where the body of a murdered
woman had been found—she was
brutally beaten to death. Her
live-in boyfriend, the accused, was the suspect,
but had fled the scene before police arrived.
The police guessed he may have gone to his
father’s home, so several members attended to
this house about three hours after finding the
body. A police officer “snuck up” through the
yard, entered an open porch, and knocked on the
back door, which was answered and opened by
the father. The officer stepped over the
threshold of the door and said they were looking
for the accused. The father told police he was
upstairs and suggested they be quiet. After
further discussion, the police went upstairs and
found the accused asleep. He was arrested and
articles of clothing were seized as evidence.
Fingerprints, hand swabs, breathalyzer samples,
and photographs were also taken following his
arrest.
At trial in the Manitoba Court of Queen’s Bench,
the judge found the police had exigent
circumstances, as defined under s.529.3 of the
Criminal Code, to enter the dwelling-house
without a warrant and effect the arrest. The
officer testified he was concerned about officer
safety and the preservation of evidence—such as
blood, tissue, and fluids—from the extremely
violent murder scene. The judge was not critical
of the police for stealthing to the back door,
stating they were not expected to announce
their presence by a “march through the yard
with a brass band.” The evidence was admitted
and the accused was convicted by a jury. The
accused appealed his conviction to the Manitoba
Court of Appeal arguing, among other grounds,

Complete case available at www.provinicalcourt.bc.ca

Volume 4 Issue 2
March/April 2004

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47

that the trial judge erred in finding the evidence
properly admissible.
Justice Freedman, authoring the unanimous
judgment, held that the trial judge erred in
finding s.529.3 applicable in this case. As a precondition to allowing warrantless entries into
dwelling-houses to effect arrests, s.529.3
requires the police to have reasonable grounds
that the person to be arrested is present inside.
In this case, the police admitted they had no
grounds to believe the accused was there until
after they entered. Prior to that point, it was
only a possibility he might be there.

The Entry and Arrest
The appeal court did not end its analysis in
considering the application of s.529.3. The
justices went on to conclude that the
warrantless entry and arrest was nonetheless
lawful—through informed consent. Justice
Freedman was satisfied that the accused’s
father gave permission by his actions for the
police to enter to look for the accused—even
though there were no actual words of consent.
The consent to enter was given by a person who
had a reasonable expectation of privacy in the
dwelling-house, which obviated the need for a
warrant. The accused’s father was the
homeowner and as the court noted, “was an
active participant assisting the police, and his
conduct and communication showed more than
mere acquiescence or compliance.”
Justice
Freedman stated:
Once [the officer] made clear the purpose of
his attendance (i.e., they were looking for the
accused), [the accused’s father] could have
said nothing, or he could have declined to
speak, or he could have questioned [the
officer], or he could have asked [the officer]
to leave. Instead, without any further action
by [the officer], [the accused’s father] told
him that the accused was upstairs, and not to
say anything. Moreover, he entered into a
discussion with [the officer], and provided him
information about the layout of the upstairs,
where the accused was. This was clearly in

48

connection with the purpose of the visit. [The
accused’s father] knowingly and willingly
facilitated the police's achieving their
objective. [para. 58]

Once the police found the accused, they were
entitled to arrest him because they had the
necessary reasonable grounds to do so required
under s.495(1) of the Criminal Code. As for
stepping over the doorway threshold and the
impact it had on the legality of the arrest,
Justice Freedman stated:
It is clear to me that in relation to their
entry into the house, the police acted in good
faith,
without
trickery,
without
misleading…and, importantly, without any
degree of force whatsoever (unlike in
Feeney). They knocked on the door, and [the
accused’s father] opened it, stepping back.
[The officer] stepped over the threshold,
without any words of invitation by the
homeowner to do so. That act, in and of
itself, is insufficient to render unlawful what
followed. [para. 56, references omitted]

A warrant to enter was unnecessary and the
arrest was therefore lawful.

The Search
A person can only have standing to challenge the
validity of a search and seizure if they can first
establish they had a reasonable expectation of
privacy. Although a homeowner has a reasonable
expectation of privacy in their own home, a
visitor, depending on the circumstances, may not
necessarily have the same expectation. “For all
persons, their dwelling-house is, at law, their
castle, but it is not necessarily anyone else’s
castle”, said Justice Freedman.
In this case, the accused did not testify or call
evidence. The only evidence before the court
established that he did not live with his father,
but rather lived at the victim’s residence for
seven to eight years. The accused failed to
establish any reasonable expectation of privacy
at his father’s house and his s.8 Charter rights
were not engaged. His father’s house was nothing

www.jibc.bc.ca

Volume 4 Issue 2
March/April 2004

more than a “hideout” and the evidence was
properly admitted at trial. His appeal was
dismissed.
Complete copy available at www.canlii.org

OFFICER’s ALS CAUSED BY
WORK INCIDENT
WCAT-2003-04407
In a landmark decision, British
Columbia’s
Worker’s
Compensation Appeal Tribunal
has held that a work related
injury triggered amyotrophic
lateral sclerosis (ALS)—a neuromuscular disease
commonly known as Lou Gehrig’s Disease—in an
on-duty police officer. The officer was injured in
an altercation after he was assaulted while
responding to a domestic disturbance—his left
shoulder hit the ground when tackled by the
suspect. He applied for compensation, describing
injuries to his shoulder, neck, back, hands, knee,
and head. He was initially diagnosed with a nondisabling soft tissue strain and the claim was
accepted by the Worker’s Compensation Board
(WCB) on a health claim basis only, with no time
loss from employment. However, the symptoms
persisted—including ongoing weakness, loss of
coordination, spasms, muscle wasting, and
slurred
speech.
After
further
medical
examination the officer was diagnosed with ALS.
The Board concluded that the shoulder strain
was the only compensable injury and that the
other ongoing problems and disability were
related to the ALS, and were therefore noncompensable.
The officer appealed to the Worker’s
Compensation Review Division. The review
officer found the cause and effect relationship
between the incident and the onset of ALS had
not been explained. Relying on various medical
opinions that muscle wasting was too advanced to
connect it to the assault and that research had
not demonstrated a reliable correlation between

Volume 4 Issue 2
March/April 2004

ALS and trauma, in the review officer’s view
there was less than a 50% probability the
officer’s ALS had been caused or triggered by
the assault.
The officer further appealed, this time to the
Worker’s Compensation Appeal Tribunal—the
final level of appeal for WCB claims. An expert
gave oral evidence that the trauma suffered
during the incident likely triggered the ALS
based on the following:
•
•
•

the worker’s young age—just over 30 years—
only 10% of ALS victim’s are under 40;
the temporal relationship between the onset
of the symptoms and the injury; and
the symptoms first appearing in the injured
area and spreading outward.

The expert also testified that there can be
tremendous variability in the speed of symptom
progression—the
rapidity
of
onset
and
deterioration could be attributable to the
officer’s young age. In this case, the tribunal
had two opposing positions regarding causation—
compelling statistical information and studies
against an expert’s medical opinion. In favouring
the expert’s opinion over statistics, the Tribunal
varied the Review Division’s decision and ruled
that the compensable work-related assault had
precipitated the onset of the ALS.
Complete case available at www.wcat.bc.ca

Canada’s Ten Largest Municipal Police Forces
(2003)
Police service

Toronto
Montreal
Peel Regional
Calgary
Edmonton
Winnipeg
Vancouver
Ottawa
York Regional

Police officer total
5,315
4,070
1,454
1,442
1,225
1,211
1,192
1,107
973

Population per Officer
492
455
718
635
544
522
487
738
841

Source: Statistics Canada

www.jibc.bc.ca

49

PLATINUM

GOLD

SILVER

BRONZE

Phone: 604-761-6351
Toll free: 1-877-761-6351
michaelmctavish@invis.ca

Michael McTavish – Mortgage Broker
Mortgage services for Law Enforcement Members in
BC
Former member – West Vancouver Police Department

www.mctavishfinancial.com

50

POLICE LEADERSHIP 2004 CONFERENCE
www.jibc.bc.ca
Volume 4 Issue 2
thanks our valued and generous sponsors.
March/April 2004

Volume 4 Issue 2
March/April 2004

www.jibc.bc.ca

51

Lead with Passion, Deliver Results: Leadership for the Real World
Overview
Turbulent, unpredictable change is now the
norm. Senior Executives are under increasing
pressure to perform. Another short-term, quick
fix approach to improved leadership won't help.
What will help are the enduring principles of
leadership learned at this Leadership Week.

This unique collaborative training opportunity
between the Justice Institute of BC and
FranklinCovey with provide you with tools and
training to help you truly lead your
organization, rather than just manage it. You
will learning enduring principles of sustained
results and will discover natural laws of
leadership
that
impact
the
core
of
organizational effectiveness.

Date: May 3rd-7th, 2004 9:00 am to 4:30 pm
Location: 400 Burrard Street, Vancouver, BC Canada
Who Should Attend and Why?
This workshop is designed for corporate leaders or individuals who are leaders of tomorrow:
• Senior leaders and commissioned officers of municipal police departments and the RCMP interested
in meeting their leadership challenges by anticipating and influencing change rather than merely
reacting to it.
• Senior managers in justice and public safety.
• Senior managers in the public sector.
• High potential individuals and mid-career professionals ready to advance their leadership skills and
desiring to make a significant difference.

You will leave this workshop better understanding yourself, the direction of your organization,
and how to successfully lead your employees.

What Will Leaders Take Back to their Organizations?
The tools, knowledge, and enthusiasm to immediately play a more significant role in changing their
organizations:
• Practical processes with real world application.
• Each participant chooses a strategic challenge from their workplace that becomes the focus for their
week. At the end of the week they have a plan on how to successfully drive this initiative for results.
• Take Home Tools. Participants learn the four roles of leadership—modeling, pathfinding, aligning,
and empowering—and get tools that enable an immediate business application.
• Results. They learn how to unify and focus their teams on getting the right results, then how to build
a pragmatic long-term plan for driving those results.
• Renewed enthusiasm for their leadership roles and the impact their contribution has on their
organization.

Graduates leave with the desire and confidence to manage complex business problems and to
achieve better results.

52

For more information contact Janet Amos,
Volume 4 Issue 2
Centre for Leadershipwww.jibc.bc.ca
and Community Learning at 604.528.5623,
jamos@jibc.bc.ca or visit our website www.jibc.bc.ca/clcl.March/April 2004