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 November 13, 2006 50year-old
Ontario
Provincial
Police (OPP) Constable David
Mounsey died in hospital as a
result of injuries he sustained
in an on-duty collision on
October 14th, 2006. Constable Mounsey was a
dedicated officer who was
well liked and respected by
his peers and members of
the community. He began his
career with the Royal Air
Force in Britain, before
joining the OPP and being
posted to the HaldimandNorfolk OPP Detachment. He then later
accepted his present posting at the Huron
County
Detachment.
He
served eight years with the
OPP and showed his pride as a
committed member of the
West Region Ceremonial Unit.
He was also a volunteer
firefighter with the Blyth
and District Fire Department.
He is survived by his wife and
3 children.

“They are our heroes,
We shall not forget them”1
The preceding information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/Canada

1

DETENTION BASED ON
REASONABLE SUSPICION
LAWFUL
R. v. Beladjat, 2006 QCCA 588
A citizen called police after
seeing two black men leave a
vehicle while the driver remained
inside. The men were dressed in
black, one wearing a ski mask and
the other a cap. They went towards a house and
retuned a few minutes later, leaving in the
vehicle. A few minutes later the police
intercepted a vehicle traveling in the reported
direction about 500 m from incident. It was
occupied by three men; two black and one white
(the accused). The accused was wearing a black
coat and false collar and was recognized as a
member of a street gang. He was searched for
safety reasons and police found a telescopic
baton in his coat pocket. He was subsequently
convicted of possessing a prohibited weapon.
The accused appealed his conviction to the
Quebec Court of Appeal submitting his arrest
and search were unlawful. The Court of Appeal
disagreed and upheld the accused’s conviction.
The police had reasonable grounds to suspect he
was implicated in a crime which justified the
stopping of the vehicle and detention of the
three men for investigation for a short period.
The search, for safety purposes, was also lawful.
Complete case available at www.canlii.org

www.10-8.ca

Inscription on Canadian Police and Peace Officer Memorial—Parliament Buildings

Volume 6 Issue 6
November/December 2006

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg.
5

Driveway Investigation Does Not Exceed
Limits of Implied Invitation
Conclusory Statement By Hydro Sufficient
For Reasonable Grounds

8

Cop Sniff Not A Search

9

Hydro Employee Not A State Agent When
Checking Electrical Consumption

12

Traffic Arrest Power Requires Compliance
With Statute

13

Reasonable Grounds Requires Objective
Basis

14

Eleven Components Of Fitness

15

Delayed Police Arrival Explained By Busy
Night

21

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. Nor are the opinions expressed
herein 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
e-mail Mike Novakowski at mnovakowski@jibc.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.

2

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
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had
one
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************
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reading
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www.10-8.ca

Volume 6 Issue 6
November/December 2006

BULLET POINTS

‘IN SERVICE’ LEGAL ROAD
TEST
The
“In
Service”
Legal Road Test is a
simple multiple choice
quiz
designed
to
challenge your understanding of the law. Each
question is based on a case featured in this
issue. See page 22 for the answers.
1. A conclusory statement of electrical theft by
a Hydro employee may be sufficient to justify
a warrant to search for an electrical bypass.
(a) True
(b) False
2. A police officer who bends over and sniffs a
bag on a luggage trolley at a bus depot does
not ‘search’ the bag as defined in s.8 Charter
jurisprudence.
(a) True
(b) False
3. A Hydro employee’s observations after
entering onto property to check electrical
usage for Hydro purposes cannot be used by
police to support a search warrant because
the employee acts as an agent of the state
when they go onto the property to check the
meter.
(a) True
(b) False
4. A statutorily compelled statement from the
driver of a motor vehicle by police while
investigating a traffic accident can be used
by police in an impaired driving/over 80mg%
trial?
(a) True
(b) False

Note-able Quote
When faced with a challenge, look for a way, not
a way out—David L. Weatherford

BC’s Top Municipal Crime Rates (2005)

Municipality

Crime Rate2

Smithers
Williams Lake
Quesnel
Fort St. John
Merritt
Dawson Creek
Port Alberni
Terrace
Prince Rupert
Squamish
Whistler

301
252
237
228
228
225
210
206
204
204
202

Source: Municipal Crime Rate Report, Police Services Division, Ministry of
Public
Safety
and
Solicitor
General—July
2006
www.pssg.gov.
bc.ca/police_services/publications/crime_rates_burdens/MunCrimeRate_
2001-2005.pdf

EVIDENCE ADMISSIBLE
DESPITE UNLAWFUL
DETENTION
R. v. Calder, 2006 ABCA 307
A police officer patrolling a
summer festival event attended
by several hundred people saw
the accused hand money to
another man and return his cupped hand to his
pocket. The officer suspected a drug deal and,
along with his partner, approached the men. The
accused was told he was under investigative
detention for trafficking and was patted down
for weapons. In his pocket the officer felt a
long, hard object which turned out to be a knife.
He continued the pat-down and felt a bulge in
the accused’s right pant pocket. He searched
inside the pocket and removed two spitballs of
cocaine. The accused was arrested and a further
search located a loaded, sawed off 22 calibre
rifle in his backpack, additional cocaine, bear
spray, empty baggies, and a digital scale. The
2

Volume 6 Issue 6
November/December 2006

Criminal Code offences per 1,000 Population

www.10-8.ca

3

accused was charged with possession for the
purpose of trafficking and several weapons
offences.
At trial in Alberta Provincial Court the judge
found the officer did not have reasonable
grounds to detain the accused and the search
that followed was unreasonable. Furthermore,
given the size of the spit balls the officer could
not have believed in good faith that the bulge in
the pants was a weapon. The seizure of the
drugs, rifle, and other items was therefore
unlawful. However, under s.24(2) the trial judge
admitted the evidence. The search was nonconscriptive, unobtrusive, and no force was used.
Moreover, having a loaded rifle in a public area
favoured admission. The evidence was ruled
admissible and the accused was convicted.
He then appealed to the Alberta Court of Appeal
arguing the trial judge erred in excluding the
evidence. In his view, the trial judge did not give
proper consideration to her finding the police
lacked good faith in conducting the search and
also erred in holding that the public’s outrage
against crime, particularly gun crime, mitigated
that bad faith.
In a 2:1 decision, the Alberta Court of Appeal
upheld the admission of the evidence. Although
the trial judge found serious misconduct on the
part of the police, she properly considered the
three-step inquiry required for the admissibility
of evidence:
1) trial fairness;
2) seriousness of police conduct; and
3) the effects of excluding the evidence on the
administration of justice.
First, the evidence was non-conscriptive and
admission would not affect trial fairness. As for
the second step, assessing the seriousness of
police conduct, the majority stated:
The trial judge…found that [the officer] did
not have reasonable grounds to suspect the
[accused] had been involved in a drug
transaction. Further, the search that led to

4

the arrest of the [accused] was a pat-down
search incidental to an investigative detention.
Such a search is lawful only if the officer
believes on reasonable grounds that his or her
own safety, or the safety of others, is at risk.
The trial judge found that [the officer] could
not have had such reasonable grounds to
search the [accused’s] pant pocket. That
finding was reasonable, having regard to the
evidence of the size of the items discovered in
that pocket. The lack of reasonable grounds
led the trial judge to conclude the search was
not committed in good faith, a finding that
indicates a relatively serious breach of the
[accused’s] rights. Balanced against this
finding is the trial judge’s conclusion that the
search was not obtrusive.

Finally, admission of the evidence would not bring
the administration of justice into disrepute. The
drugs and rifle were essential to the Crown’s
case. The offences were serious and aggravated
by the circumstances; possession of a loaded
firearm in a very public place during an event
attended by hundreds of people. “Public concerns
regarding the increasing threat to public safety
which arises from the use and possession of
firearms in the commission of offences is a
factor which must be given serious consideration
and in appropriate circumstances such as found
here can override a finding of police
misconduct,” said the majority. “Our conclusion
would have been different if there had been no
loaded weapon, or if the circumstances had not
involved such an evident and immediate threat to
public safety.”
Justice Berger, the lone dissent of the court,
came to a different conclusion. He first noted
that the trial judge found the police arbitrarily
detained the accused. The trial judge concluded
the officer did not have reasonable grounds to
suspect the accused was involved in a drug
transaction and that the officer could not have
subjectively believed the pocket bulge was a
weapon because of its size. As a result, the
officer did not have reasonable grounds to
believe his safety or that of others was at risk

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Volume 6 Issue 6
November/December 2006

and the search and seizure that resulted was
unlawful and unreasonable.
In Justice Berger’s view the Charter breaches
were “wilful and flagrant. The police significantly
overstepped the bounds of proper police
conduct” and acted in bad faith. Furthermore,
the officer’s testimony was “unworthy of belief.”
Although the reliable evidence seized in this
case was essential to the Crown’s case for a
serious criminal charge, the admission of the
evidence would “exact too heavy a toll on the
long term integrity of the administration of
justice.” Justice Berger would have excluded the
impugned evidence, overturned the convictions,
and entered acquittals on all charges.
Complete case available at www.albertacourts.ab.ca

DRIVEWAY INVESTIGATION
DOES NOT EXCEED LIMITS OF
IMPLIED INVITATION
R. v. Lotozky,
(2006) Docket:C43322 (OntCA)
At about 1:00 am two police
officers
responded
to
a
suspected impaired driver call.
It was reported that the driver
of a vehicle at a fast food drive through window
was too intoxicated to order. A general vehicle
description was provided along with a license
plate number. The licence plate was queried by
computer and the officers attended the
registered owner’s address. The officers parked
in front of the address and a car turned on to
the street. The car was being driven very slowly
and stopped on the street, flashing its high
beams. The car moved again, stopped a second
time, and then made a slow turn into the
driveway of the registered owner’s address.
After the vehicle stopped the officer’s
approached the driver’s window.
The officers watched the accused fumble with a
fast food bag. One officer knocked on the

Volume 6 Issue 6
November/December 2006

window and the accused got out of the car and
leaned against the door. The officer asked to
see his licence, ownership documents and
insurance. He fumbled with the documents and
had to be asked again to provide them. He had
difficulty maintaining his balance, his eyes were
watery, he looked disheveled, and there was a
smell of alcohol on his breath. When asked how
much he had to drink he said one beer. An
officer formed the opinion the accused’s ability
to drive was impaired by alcohol, he was
arrested, and his vehicle towed. He subsequently
provided two samples over the legal limit.
At trial in the Ontario Court of Justice the
judge found the police had violated the accused’s
rights under s.8 of the Charter because they
entered onto the driveway to investigate a
criminal offence. Under these circumstances the
police were not entitled to walk up the driveway
attached to a dwelling house to investigate the
suspected impaired driving. The fruits of the
investigation, the breath samples, were
inadmissible and charges of impaired driving and
over 80mg% were dismissed.
The Crown unsuccessfully appealed to the
Ontario Superior Court of Justice. The superior
court judge found the accused had a reasonable
expectation of privacy on his driveway. Further,
the police exceeded the bounds of the implied
licence doctrine when they entered to
investigate a suspected criminal offence. By
entering onto the driveway, the police were
conducting a warrantless search which was prima
facie unreasonable. Since the Crown did not
rebut the presumption, the search was
unreasonable and the Crown’s appeal was
dismissed.
The Crown then appealed to the Ontario Court of
Appeal arguing, in part, that the accused did not
have a reasonable expectation of privacy in the
driveway and s.8 of the Charter was therefore
not triggered. Further, even if there was a
reasonable expectation of privacy in the

www.10-8.ca

5

driveway, entrance onto it was lawful, in part,
under the implied licence doctrine.
Justice Rosenberg divided the police conduct
into four separate elements:
1) walking onto the driveway;
2) tapping on the window to get the
accused’s attention;
3) questioning the accused about his
licence, ownership, and insurance; and
4) making the breathalyzer demand.
Unlike the fourth element which was clearly a
search and seizure the first three were not.
Justice Rosenberg stated:
…despite the breadth of the notion of search
and seizure, merely walking on to a driveway,
even with an intent to conduct an investigation
involving the owner, does not, in my view,
constitute a sufficient intrusion to be
considered a search. There must be something
more, as in the perimeter search cases,
peering in windows of the home and trying to
detect odours from within. Put another way,
not every trespass on to private property by
police can constitute a search. I would not
place a possible trespass on to a driveway open
to public view in the category of a search or
seizure.
As regards the other two aspects of the police
conduct, I tend to think that merely tapping on
the window, like peering into a window with a
flashlight, does not involve a search. Asking
routine questions of a motorist about licence,
ownership and insurance similarly would not
seem to be the type of questioning that would
lead to a finding of a sufficient intrusion into a
reasonable expectation of privacy… Finally,
cases concerning questioning of motorists in
drinking and driving situations have turned on
issues such as right to counsel and detention;
not search and seizure… Obviously, the fact
that the courts have not dealt with this
element of the drinking and driving paradigm
as a search issue is not determinative, but it
does suggest to me that in most cases the
search and seizure threshold is not crossed

6

until
the
breathalyser
demand
made…[references omitted, paras. 18-19]

is

However, even though walking onto the driveway,
tapping on the window and asking for documents
was not a search, the breath demand was. Hence,
if the police were trespassers when they made
the demand the police conduct was unlawful.
In this case, Justice Rosenberg examined the
police conduct under the implied licence
doctrine. This common law doctrine recognizes
that an occupier of a dwelling gives implied
licence to any member of the public on legitimate
business, including the police, to enter onto the
property. This invitation waives the privacy
interest that an occupant may otherwise have in
the approach to the door of their home provided
the police enter onto the property for the
specific purpose of communicating with the
occupant. If the police, however, enter onto the
property to secure evidence against the
occupant by engaging in a search they have
exceeded the boundaries of implied licence. If
the occupant tells the police to leave, the licence
is withdrawn and the police must leave unless
they have acquired reasonable grounds to make
an arrest before that time. Justice Rosenberg
noted that this case was different than other
cases involving police knocking on a door:
In my view, there is a fundamental difference
between the police conduct of knocking on the
door of a dwelling house to investigate the
occupants…and merely entering on to a
driveway. The latter does not involve an
investigation of persons in their own home. A
driveway is not a dwelling house; it is a place
where people drive and park their vehicles. It
is an open area that is visible to the public.
The scope of the implied invitation must be
analyzed in that context. [para. 32]

Justice Rosenberg continued:
The fact that the police officer intends to
pursue an investigation on the driveway, at
least if the investigation relates to a motor
vehicle, does not in my view exceed the bounds
of the implied invitation, provided that the

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Volume 6 Issue 6
November/December 2006

officer has a legitimate basis for entering on
the driveway. Interpreting the common law in
this way is, in my view, consistent with the
broader principle…that licences may arise by
implication from the nature of the use to
which the owner puts the property. As I have
said, the use to which this property is put is to
park motor vehicles and it is an area of the
property that is open to public view.
The officers in this case had a legitimate basis
for entering on the driveway. They had
received a report that the driver of the car
associated with the address was apparently
impaired. The driver drove the vehicle in an
unusual fashion as he approached the
driveway. The officers would have been
entitled to stop the vehicle on the street
under s. 48(1) of the Highway Traffic Act.
For reasons of safety, they waited until the
motorist had brought the vehicle safely to a
stop. This was a reasonable decision to make.
It makes no sense that because the officers
exercised a reasonable degree of caution their
actions should be characterized as illegitimate.
There are other reasons for viewing the
officers’ actions as legitimately within the
scope of the implied licence. It would not be
good policy to interpret the law as encouraging
motorists to avoid the reach of legitimate
traffic investigations by heading for home and
thus encouraging a high-speed police chase.
Further, until the impaired driving complaint
was investigated there was a risk that an
impaired driver would re-enter the vehicle and
drive while impaired. It is not reasonable to
expect the police to devote resources to
waiting outside the motorist’s house until he or
she returns to the street. [references
omitted, paras. 35-37]

Thus, the police were lawfully on the driveway in
accordance with an implied invitation. The police
were not asked to leave the property before
reasonable grounds for arrest and the breath
demand were formed. There was no s.8 breach.
The Crown’s appeal was allowed, the accused’s
acquittal set aside, and a new trial was ordered.
Complete case available at www.ontariocourts.on.ca

Volume 6 Issue 6
November/December 2006

BC’s RCMP/Independent Municipal Forces
population > 15,000
Cost per Capita (2005)
Police Department/Detachment
Victoria
Vancouver
New Westminster
Port Alberni (RCMP)
Langley City (RCMP)
West Vancouver
Fort St John (RCMP)
Delta
Port Moody
Prince George (RCMP)
Abbotsford
Oak Bay
North Vancouver City (RCMP)
Mission (RCMP)
Nanaimo (RCMP)
Kamloops (RCMP)
Central Saanich
Saanich
Campbell River (RCMP)
Langley Township (RCMP)
Surrey (RCMP)
Vernon (RCMP)
Burnaby (RCMP)
White Rock (RCMP)
Cranbrook (RCMP)
Langford (RCMP)
Chilliwack (RCMP)
Penticton (RCMP)
Maple Ridge (RCMP)
Richmond (RCMP)
Kelowna (RCMP)
Courtenay (RCMP)
Coquitlam (RCMP)
North Vancouver District (RCMP)
Port Coquitlam (RCMP)
North Cowichan (RCMP)
Salmon Arm (RCMP)

Cost per
Capita ($)
329
291
276
249
237
222
213
205
203
201
199
194
186
183
183
181
181
176
173
168
167
165
160
160
159
156
154
154
152
152
149
147
139
133
133
127
104

Source: Police Services, Ministry of Public Safety and
Solicitor General, August 2006 available at
www.pssg.gov.bc.ca/police_services/publications/other/MU
NSUM2005.pdf [accessed, September 18, 2006]

www.10-8.ca

7

CONCLUSORY STATEMENT BY
HYDRO SUFFICIENT FOR
REASONABLE GROUNDS
R. v. Le & Nguyen, R. v. Tran,
2006 BCCA 298
A police officer swore an
information to obtain a search
warrant for the purpose of
investigating
the
theft
of
electricity under s.326(1)(a) of the Criminal
Code. The grounds, in part, included information
received by facsimile from a BC Hydro employee.
Along with the employees’ qualifications, the
information stated that there was a pre-meter
theft of electricity occurring at the residence
based upon the measured electrical consumption
going to the property compared with the timed
meter consumption. A search warrant was issued
allowing police to search for an electrical bypass
and documents related to residency. The warrant
was executed and the accused were charged
with production, possession for the purpose of
trafficking, and theft of electricity.
At trial in British Columbia Provincial Court the
accused argued their rights under s.8 of the
Charter had been violated and the evidence
should have been excluded under s.24(2). The
judge agreed, holding that the information to
obtain was insufficient and the grounds were
lacking. The information provided by BC Hydro
merely stated a conclusion without any basis or
factual foundation for reaching the conclusion.
As a result, the statements from BC Hydro were
not sufficient to provide reasonable grounds for
the warrant, the evidence was excluded, and the
accused were acquitted.
The Crown appealed to the British Columbia
Court of Appeal arguing the trial judge erred in
ruling the BC Hydro reports could not provide
reasonable grounds for the warrant. The
standard for issuing a warrant is whether the
information to obtain contains sufficient
information to give rise to reasonable grounds

8

for believing that a crime has been committed.
Justice Kirkpatrick, authoring the opinion of the
Court, described reasonable grounds as follows:
The standard is “reasonable probability”, not
“proof beyond a reasonable doubt” or “prima
facie case”…A belief will be founded on
reasonable grounds “where there is an
objective basis for the belief which is based
on compelling and credible information”…
[references omitted, para. 15]

In this case, the information received from BC
Hydro that its qualified employees had compared
the electricity going to the house with the meter
would be enough to support the warrant. The
information before the justice issuing the
warrant was from persons with specialized skill
and training employed by the entity complaining
about the theft of its services. The source of
the information was reliable and there was no
complexity about the calculation of the
measurements. Justice Kirkpatrick stated:
The authorizing judicial officer had before
her information that demonstrated that on
two occasions qualified B.C. Hydro technicians
trained in detecting the theft of the
company's property attended at the dwelling
house. [One] measured the total electricity
going to the dwelling. [The other] measured
the amount of electricity recorded by the
dwelling's meter. The measurements disclosed
that more electricity was being used than was
being recorded by the meter for billing
purposes. Based on that discrepancy, [the
technicians] stated that they believed that
pre-metered theft was taking place. [para. 21]

And further:
In each of the cases at bar, the authorizing
judicial officer had a report from the alleged
victim of a crime that, by the check of its own
equipment, had determined that its property
was being stolen. Based on such information
from a credible source, the authorizing judicial
officer could have been satisfied that there
was an objective basis to believe that a crime
was probably being committed. Although I
think that the use of the word "theft" in the

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Volume 6 Issue 6
November/December 2006

Information to Obtain was unnecessary and
suggests a legal conclusion, it is clear from all
of the circumstances that, based on the
measurements conducted, there were more
than sufficient reasonable grounds to believe a
"suspected theft" was occurring. [para. 23]

The Court concluded that the BC Hydro reports
were sufficient to support reasonable grounds
to believe that a crime had occurred. The
warrant was validly authorized and the appeal
was allowed, the acquittals set aside, and new
trials were ordered.
Complete case available at www.courts.gov.bc.ca

COP SNIFF NOT A SEARCH
R. v. Rajaratnam, 2006 ABCA 333
Two plain clothed officers who
were part of a Jetway Unit
were
watching
passengers
disembark from a bus at a
Calgary Greyhound depot. The
Jetway Unit targets criminal activity by looking
for suspicious behaviour. As the accused
disembarked from a bus, he and an officer
“locked eyes.” The accused walked over to a bag,
unlocked it, looked through it, closed it, and then
locked it. The bag was left beside the bus with
other luggage and the accused continued into the
terminal. The officer went over to the bag and
noted it was tagged for Montreal.
He then located the accused seated on the curb
outside the terminal, showed him his badge and
said, “I’m a police officer out here at the bus
depot. You’re not in any sort of trouble and
you’re free to go at any time. We just talk to
people as they are traveling.” The officer began
to speak with the accused, requesting to see his
ticket and identification, enquiring into his travel
plans, and asking whether he was carry drugs or
large quantities of money. As a result of their
interaction with the accused the police noted
the following:

Volume 6 Issue 6
November/December 2006

•
•

•

he purchased his ticket in a false name
with cash at the last minute;
he could not provide a credible
explanation regarding the timing and
duration of his trip. He said he was going
to Montreal to visit his brother even
though his ticket was valid for seven
days, with six of those days involving
travel;
he became nervous when the police noted
his identification and the name on his
ticket did not match;

Another officer located the accused’s bag, which
was tagged with a false name and had been
loaded onto a trolley. He bent over and sniffed it
at the seam and zipper, noting a strong odour of
Bounce fabric softener. In the officer’s training
and experience, fabric softner sheets, like
coffee and bleach, are used as camouflage
agents to mask the odour of drugs. The accused
was then arrested for possession and trafficking
in drugs. A key for the bag was located in the
accused’s carry-on bag, the bag unlocked, and
two bricks of cocaine and four sheets of bounce
where found in the bag.
At trial in the Alberta Court of Queen’s Bench
the accused was convicted of possessing cocaine
for the purpose of trafficking. The trial judge
concluded that he had not been detained or
subject to a search prior to his arrest and the
when the police did arrest him they had
reasonable grounds to do so. The search of his
bag was incidental to arrest and there were no
Charter breaches to the accused’s rights. The
accused then appealed to the Alberta Court of
Appeal arguing he was detained when the police
began to talk with him, that they did not have
reasonable grounds to arrest him, and that
sniffing his baggage was a search protected
under s.8 of the Charter.

The Detention
The Alberta Court of Appeal ruled that the trial
judge did not err in concluding the accused was

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9

not detained within the meaning of the Charter.
The accused was clearly not physically detained
nor was he psychologically detained in the sense
that he did not have a reasonable perception
that his freedom of choice was suspended. The
Court stated:
[N]ot every conversation with the police is a
detention. There must be something more: a
deprivation of liberty. The law has not yet
reached a point that a compulsion to comply
will be inferred whenever a police officer
requests information, for that would mean
police could never ask questions. [para. 13]

Deciding whether someone is detained or not
involves a highly fact-dependent analysis and
involves an examination of the totality of the
circumstances including:
•
•
•

•
•
•

the language used by police;
the stage of investigation;
whether the police had reasonable
grounds an offence was being committed
at the time of the conversation;
the nature of the questioning;
the person’s subjective belief as to
whether they felt detained; and
the person’s personal experiences that
might affect their perceptions of the
questioning.

In this case, although the police were suspicious
of the accused they did not have grounds to
believe he was committing an offence. He was
told he was not in any trouble and free to go at
any time. The conversation was polite, friendly,
and voluntary.

The “Sniff”
Section 8 of the Charter protects a person
against police investigative techniques only if
those techniques intrude upon a person’s
reasonable expectation of privacy. Although the
accused had a reasonable expectation of privacy
in the bag itself, he did not have a
constitutionally protected interest in the air
space around the bag. The Court wrote:

10

…Arguably, there may be some nexus between
the sniff and the contents, because a sniff
may provide information about what is inside a
bag. In the same way, visual observation of a
soft bag that conforms to the shape of an
interior object, such as a sharp pointed item,
may provide information about the contents of
a bag. But neither a visual nor an olfactory
human
observation
can
be
equated
categorically to a search of the contents in
these circumstances. [para. 37]

And further:
The place where the alleged search took place
is an important factor in this case. The bag
was in an area where the traveling public (but
not the general public) and Greyhound
employees were permitted, although [the
accused] was not aware that the general public
would not have access. It was not in a locker,
or being carried on [the accused’s] person. It
was checked baggage, first handled by
Greyhound employees, then stored with other
bags in the underbelly of a bus, then removed
by other Greyhound employees and left out in
the open, in the midst of luggage that would be
handled by other passengers. The trial judge
made a critical finding that odour emanating
from the bag could have been detected by
third parties, such as baggage handlers and
fellow passengers, and was not subject to an
obligation of confidentiality…
[The accused] attacks this finding, claiming
that the sniff is a search of the contents of
the bag, the privacy interest attaches to the
contents and police cannot search the contents
of luggage unless they have a warrant based on
reasonable grounds.
This argument ignores the fact that the odour
of the Bounce sheets escaped into the public
air space, something a reasonable person would
realize. In fact, the very reason the Bounce
sheets were placed in the bag was to allow the
pungent odour to escape and mask the smell of
drugs. While the officers confirmed the
presence of Bounce sheets by sniffing quite
close to the bag, a reasonable person in these
circumstances would foresee that others,
including baggage handlers and fellow

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passengers, would come close enough to the
bag to detect the odour. [paras. 42-44]

The search was not intrusive nor did it expose
any intimate details of the accused’s lifestyle,
offer insight into his private life, affect his
dignity, integrity, or autonomy, or provide
information of a biographical nature:
The final consideration is whether the sniff
exposed any intimate details about [the
accused’s] private life, or information of a
biographical nature, or affected his dignity,
integrity and autonomy. The smell of Bounce
did not provide any biographical information.
It mayhave permitted inferences about [the
accused’s] lifestyle, in the sense that he was a
drug courier, but only when considered in light
of the officers’ other observations and their
training in detecting camouflage agents.
Of course, a sniff could reveal other personal
information, such as perfume, or salami or
body odour, if the bag contained sneakers or
dirty clothes. Undoubtedly, some odours reveal
intimate details or information of a
biographical nature. However…this fact alone
does not make a search unreasonable: it is but
one factor to be weighed and balanced with
the other relevant factors. Here, a reasonable
person would know that strong odours
commonly escape from bags, and that
passengers and baggage handlers will be in
close enough proximity to the bags to detect
these odours. Thus, even if a sniff can expose
personal information, there could be no
objectively reasonable expectation of privacy
in these circumstances. [references omitted,
paras. 50-51]

Since there was no privacy interest engaged, s.8
was not triggered.

The Arrest
The police may arrest a person if they have
reasonable grounds to believe the person is
committing an indictable offence. This requires a
subjective belief based on objective grounds.
These objective grounds are not to be viewed in
isolation but rather viewed as a whole. In

Volume 6 Issue 6
November/December 2006

assessing whether grounds exist a police
officer’s training and experience is relevant in
determining objective reasonableness. Even
where objects may appear innocent to the
general public they may have a different meaning
to an experienced drug officer.
Here, the officer testified that Bounce,
although not a prohibited substance and used
commonly by the general population, is also a
common drug-camouflage agent. But it was not
this fact alone that provided reasonable grounds
for the arrest. Rather, it was combined with
other factors. “An odour of fabric softener or
other known camouflage agent will not always
provide reasonable grounds for arrest, or even
articulable cause to detain,” said the Court.
“Similarly, the presence of a common household
item will not always be dismissed as a neutral
factor and ignored in the reasonable grounds
calculus. Context and circumstances are key.”
The accused’s appeal was dismissed and his
conviction upheld.
Complete case available at www.albertacourts.ab.ca

ROBBERY VIOLENCE NEED
NOT BE EXPLICIT
R. v. Arsenault,
(2006) Docket:C44608 (OntCA)
The accused walked into a bank
fully disguised. His head was
wrapped with gauze bandages
with only his eyes exposed and
he was wearing a baseball cap.
He handed the teller a note demanding money,
refused to use his voice, and answered questions
of the teller only by nodding or shaking his head.
The teller was very nervous and wanted to make
sure she did everything right so no one would be
hurt. The accused received $5000 and left.
At trial in the Ontario Court of Justice the
accused conceded that a theft occurred, but
argued it was not a robbery: there being no

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11

threat of violence. The trial judge, however,
concluded there were threats of violence.
Subjectively, the accused acted with the
specific intent of causing fear in the teller. He
disguised himself, didn’t speak, and didn’t run
when he got the money. Instead, he sat and
waited until the teller complied with his intended
purpose. Objectively, “the totality of [the
accused’s] acts created the threat of violence to
cause to effect his purpose of obtaining money
from [the teller].” The accused was convicted of
robbery under s.343(a) of the Criminal Code.
The accused appealed to the Ontario Court of
Appeal arguing, in part, that he should have only
been convicted of theft. The Ontario Court of
Appeal, however, disagreed in a unanimous
endorsement. The Court found “the threat of
violence was implicit in the location of the crime
and in the [accused’s] conduct, including his
disguise.” The trial judge’s findings were
supported by the evidence and the accused’s
conviction appeal was dismissed.

possible that there was an electrical bypass. He
then attended the residence and did a “stickcheck” of the electricity meter using an
ammeter. The electrical consumption recorded
on the meter was compared to the amount of
electricity actually being consumed in the
residence. If the two measurements do not
match then a theft is taking place.
The employee then faxed the police officer
stating there was a theft of electricity at the
residence. The officer did not yet have
sufficient grounds to obtain a search warrant
for the suspected marihuana grow-operation, so
obtained a general warrant for the theft of
hydro which was granted. Police executed the
search warrant and found an electrical bypass in
the attic and a marihuana grow operation in the
basement.

R. v. Wallis, 2006 BCCA 481

At trial in British Columbia Provincial Court the
accused argued that the Hydro employee was
acting as an agent of the police. He submitted
that the police had hydro do by the “back-door”
what the police could not do through the “front
door.” Thus, he contended that when the Hydro
employee went onto the accused’s property to
check the meter they were conducting a
warrantless search thereby violating s.8 of the
Charter. The information obtained by this action
should therefore be expunged from supporting
the search warrant and the resulting evidence
obtained inadmissible under s.24(2).

An employee contracted to BC
Hydro to investigate hydro
theft received a call from a
police officer reporting an
anonymous tip that there was a
marihuana grow operation at the accused’s
residence. There was a police policy in place to
contact Hydro when a tip about a possible grow
operation was received and the officer expected
Hydro would investigate his tip. The Hydro
employee (who was also an ex-police officer)
checked the records and found that had the
residence been set up as a grow op it was

The trial judge, however, ruled that even though
the officer had more than one motive in
contacting hydro (theft of electricity/possible
fire hazard and furthering his own marihuana
grow investigation), his actions were lawful. The
police gave no instructions or directions to the
Hydro employee and he was not acting as an
agent despite the fact the officer expected
Hydro would investigate the tip. He was fulfilling
his contractual right of access to the property
under the BC Hydro and Power Authority
Electric Tariff by checking on electricity usage.
The accused’s application was dismissed and he

Complete case available at www.ontariocourts.on.ca

HYDRO EMPLOYEE NOT A
STATE AGENT WHEN
CHECKING ELECTRICAL
CONSUMPTION

12

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Volume 6 Issue 6
November/December 2006

was convicted
marihuana.

of

unlawful

production

of

The accused appealed to the British Columbia
Court of Appeal arguing the trial judge erred in
finding the Hydro employee was not acting as an
agent of the police. Justice Prowse, authoring
the unanimous opinion of the court, held that the
question concerning whether the Hydro employee
was acting as an agent is largely one of fact. In
this case, the trial judge’s decision was
supported by the evidence.
Complete case available at www.courts.gov.bc.ca

TRAFFIC ARREST POWER
REQUIRES COMPLIANCE WITH
STATUTE
R. v. Plummer,
(2006) Docket:C41634 (OntCA)
A police officer stopped the
accused, a taxi driver, for not
wearing his seatbelt. After twice
requesting a driver’s licence,
ownership papers and vehicle insurance without
receiving them and warning of arrest for failing
to identify, the accused was arrested under
Ontario’s Highway Traffic Act (HTA). A scuffle
ensued and the accused was subdued with the
help of a citizen. He was charged with assaulting
a peace officer in the execution of his duty and
assault with intent to resist arrest.
At trial in the Ontario Court of Justice the
accused was convicted of resisting arrest while
the assault police officer was stayed do to the
Kienapple
principle.
The
accused
then
unsuccessfully appealed to the Ontario Superior
Court of Justice arguing the elements of the
arrestable offence under s.33 of the HTA had
not been satisfied. The appeal judge rejected
this claim, ruling the arrest lawful since the
officer had demanded a licence twice and warned
the accused he would be arrested for failing to
identify. Furthermore, the appeal court held

Volume 6 Issue 6
November/December 2006

that even if the arrest was not lawful the
accused should not have resisted arrest. Rather,
he should have complied and sought a remedy in
civil or criminal court or through the police
complaints bureau.
The accused then again appealed to the Ontario
Court of Appeal. In a 2:1 judgment the Ontario
Court of Appeal found the arrest unlawful and
acquitted the accused. Section 217(2) of the
HTA provides limited powers of arrest for a
police officer:
s.217(2) Highway Traffic Act
Any police officer who, on reasonable and probable
grounds, believes that a contravention of any of the
provisions of…subsection 33 (3)…has been committed,
may arrest, without warrant, the person he or she believes
committed the contravention
Section 33 of the HTA imposes two duties on
drivers. First, a driver must carry their licence
with them while in charge of a motor vehicle.
Second, a driver must surrender their licence
for reasonable inspection upon the demand of a
police officer:
s.33 Highway Traffic Act
(1) Every driver of a motor vehicle or street car shall carry
his or her licence with him or her at all times while he or
she is in charge of a motor vehicle or street car and shall
surrender the licence for reasonable inspection upon the
demand of a police officer or officer appointed for carrying
out the provisions of this Act.
(2) Every accompanying driver, as defined under section
57.1, shall carry his or her licence and shall surrender the
licence for reasonable inspection upon the demand of a
police officer or officer appointed for carrying out the
provisions of this Act.
(3) Every person who is unable or refuses to surrender his
or her licence in accordance with subsection (1) or (2)
shall, when requested by a police officer or officer
appointed for carrying out the provisions of this Act, give
reasonable identification of himself or herself and, for the
purposes of this subsection, the correct name and
address of the person shall be deemed to be reasonable
identification.
If the driver is unable or refuses to surrender
their licence they may be required to provide
some other form of reasonable identification,
which includes giving one’s correct name and

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13

address. Using the rules of statutory
interpretation, Justice Rosenberg, authoring the
majority judgement, interpreted this section to
mean that “the obligation to provide alternative
identification arises only when an officer makes
a separate and specific demand for alternative
identification.” In other words, the police
officer must do something other than make a
further demand for a driver’s licence under
s.33(1) to trigger s.33(3). A separate request
for alternative identification is needed to
trigger the arrest power under s.217(2) for this
offence. Justice Rosenberg concluded:
In my view, the proper interpretation of s.
33(3) requires that the officer must make a
specific request for identification other than
a driver’s licence. Until that request for
alternative identification has been made and
the person has refused to comply, there is no
contravention of the subsection. It follows
that there can be no power to arrest without a
warrant until the officer has made the request
for alternative identification. [para. 43]

In this case, the officer only asked the accused
to provide his licence. Although he did this
repeatedly, he did not ask for some other
reasonable identification. The s.33(1) duty was
triggered, however the s.33(3) was not. Since
the accused did not contravene s.33(3) of the
HTA, the officer did not have reasonable and
probable grounds to make the arrest. The
arrest was therefore unlawful and the officer
was not in the execution of his duty. Thus the
offence of assaulting a peace officer in the
execution of his duty was not made out. The
accused’s appeal was allowed and the charges
were dismissed.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
Man cannot discover new oceans unless he has
the courage to lose sight of the shore—Andre
Gide

14

REASONABLE GROUNDS
REQUIRES OBJECTIVE BASIS
Kirk v. Canada, 2006 ABCA 227
A veteran Drug Control Section
police
officer
received
information
that
a
male,
travelling under a false name,
went to Europe to acquire
narcotics and would be transporting them back
to Canada. The officer confirmed a passenger
under the false name would be arriving at the
airport on a flight from Hungary via Amsterdam.
The plaintiff’s name appeared on the flight
manifest as this male’s companion. Canada
Customs were informed by police that the
plaintiff and her male companion would be
transporting drugs. The police had decided to
arrest and search the plaintiff before her plane
arrived.
The two passengers were read their Charter
rights by Customs Officers when they arrived at
the airport and their luggage was searched. No
illicit drugs were found in the plaintiff’s luggage.
The plaintiff spoke to a lawyer and was strip
searched, but no drugs were found. The plaintiff
was arrested and taken to the hospital where
stomach x-rays were performed. There was
nothing to suggest ingestion of drugs but
medications were ordered to induce vomiting.
This was negative and enemas were ordered.
This too was negative and a body cavity search
was done. Like the other procedures nothing
further was revealed and the plaintiff was
released.
The plaintiff sued both the police and medical
staff for battery, unlawful search, and false
imprisonment. The judge found the evidence of
the officers unreliable. Investigation notes had
been destroyed and the Police Service could not
locate a report. The plaintiff was awarded
$150,000 for general damages (to be shared by
the officer in charge and the physician),
$30,000 for unlawful search and false

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existed at the time, reasonable and probable
grounds have never consisted of police feelings
or hunches. Further, the law has been clear
for years that the more intrusive the search,
the more cogent must be the evidence to
support the grounds.
………
The test here involves both a subjective and
an objective element… That is, the officers
had to subjectively believe that they had the
reasonable and probable grounds; and, looked
at objectively, those grounds must exist.
Although the trial judge misstated the test in
concluding that “neither [police officer] could
have objectively formed the opinion that they
had reasonable and probable grounds to effect
the searches and arrest of [the plaintiff]” …,
it is nevertheless obvious that he concluded
the objective element of the test was missing.

imprisonment against the officer in charge, and
$50,000 for exemplary and punitive damages
against the officer in charge.
The officer in charge of the Drug Control
Section appealed the trial judge’s findings to the
Alberta Court of Appeal, arguing, in part, that he
erred when he found the police did not have
reasonable and probable grounds to search the
plaintiff, including the strip search. However,
Justice Ritter, authoring the unanimous decision,
upheld the trial judge’s findings.
The informant never mentioned the plaintiff.
She was only targeted by the police when she
was identified in the flight manifest as the
suspected drug transporter’s companion. Since
the plaintiff was not identified by the informant,
the
only
grounds
remaining
were
the
observations of the plaintiff made by airport
Customs officers and items found in her checked
luggage. The plaintiff was described by Customs
officers as nervous, leaning on the counter,
wearing dark sunglasses, and having a bloated
appearance. In her luggage three cans of
deodorant and a package of condoms were found.
The plaintiff explained she had the condoms
from a fear of contracting AIDS. Justice Ritter
stated:
None of these supposed indicators that [the
plaintiff]
was
carrying
drugs
provide
reasonable and probable grounds. Moreover,
reports from Customs officers disclose that
[the police officers] made it clear they
intended to arrest [the plaintiff and her
companion] regardless of what was observed at
the airport. The observations at the airport
only became important to them when [the
defendant] was sued. They had decided to
arrest and search [the plaintiff] before she
arrived in Edmonton.
This leaves practically nothing to support the
existence of reasonable and probable grounds.
Although [the officer in charge] argues that
the law relating to reasonable and probable
grounds has developed since this event, and
that he need only meet the standard that

Volume 6 Issue 6
November/December 2006

Although it might be argued that this search
was incidental to the arrest of [the plaintiff],
the officers nevertheless required reasonable
and probable grounds to arrest her in the first
place. Again, the police are unable to establish,
on an objective basis, that they had those
grounds. Absent a legal arrest, a search
incidental to arrest is also illegal. [references
omitted, paras. 39-44]

The officer in charge’s appeal from a finding of
liability was dismissed.
Complete case available at www.albertacourts.ab.ca

THE ELEVEN COMPONENTS OF
FITNESS!
By Kelly Keith
Suspect: Male, 6’2”, 250 lbs, large build
Police Officer: Female, 5’7”, 120lbs, slender build
If the suspect attacks the police officer, what
factors determine who wins this altercation?
•
•
•
•
•

Spontaneous Attack
Weapon Readiness
Winning Mindset
Number of Officers
Tactics

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15

• Fitness
• Strength
• Fighting Ability - Control Tactics

Muscular Power / Speed Strength

How can we best train police officers in fitness
and strength, which will ultimately enhance
fighting ability/control tactics?
If the above-mentioned police officer trained
with weights everyday is it possible that she
would be able to match the strength of the
suspect?
As police trainers with a limited amount of time,
are we getting the best return for our time by
getting our recruits/officers into the gym on
weights and/or running?
Does this type of fitness training turn out the
officers that are going to defend themselves
better and will there be fitter officers at the
end of training?
Training with weights and running are absolutely
great ways to build foundations, but as police
trainers we need to enhance the other fitness
components, which will enable the officer to win!
A simple example is rotary power. Rotary power
will address how hard you can swing your baton,
punch, kick and/or throw a suspect to the ground.
Rotary power is also needed in most escapes from
the ground. Officers can increase rotary power
just as easily as building bigger biceps!
There will always be strength differences. It is
obviously not possible to always be stronger or in
better shape than all of our suspects, however by
understanding our strengths and addressing our
weaknesses police trainers need to enhance the
eleven components of fitness for each officer not
just aerobic power and strength.

The Eleven Components
Many fitness factors have to be considered to
optimize a police officers fitness and ability to
defend themselves.

16

This is the ability to produce force in a brief
amount of time. In other words the product of
force and velocity.
Should a police officer
possess strength, but cannot apply this strength
rapidly, the amount of strength they have is
irrelevant if it cannot be applied in time.
Thus to develop Power you must apply speed to
the desired movement or specific tactical
situation.
This is an imperative factor for a police officer,
as the ability to produce force in a brief amount
of time is vital in any physical confrontation.
There are many very strong police officers that
are not able to transition this strength into
“speed strength” which is more beneficial to
police officers.
Muscular Strength
This is considered the ability to produce maximal
force. Strength is vital to optimize muscular
power but is different in the Speed that the
force is exerted. Research indicates that most
people can perform about 10 repetitions with 75
% of their one rep maximum. Thus if someone can
bench press 100 pounds for one repetition they
are most likely able to perform about 10
repetitions with 75 pounds.
Fast twitch muscles – generally low endurance –
higher power but less endurance thus less than 10
repetitions with 75 % of one rep maximum.
Slow twitch muscles – generally high endurance
can perform more than 10 repetitions with 75 %
of one rep maximum.
Research shows that previously untrained men and
women gain about two to four pounds of muscle
and 40 to 60 % more strength after two months
of regular strength training – it then slows down
but typically continues for several months.

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Gender: Men typically have more muscle than
women – muscle is positively influenced by the
presence of testosterone (male sex hormone).

• Decreased risk of lower back pain
• Reduced stress – stretching promotes muscle
relaxation.

Generally larger muscles are stronger muscles
(one to two kilograms of force per square
centimeter of cross sectional area).
Simply
speaking, men generally have more muscle than
women and thus generally men are stronger than
women.

Balance

Muscular Endurance
This is the ability to perform repeated muscular
actions, which can be very important in any
physical confrontation that lasts longer than
approximately 15 seconds. In any altercation the
addition of Muscular Endurance will lengthen the
time period you can physically perform optimally
under stressful metabolic conditions.
Muscular endurance is an important aspect of a
police officers training program. The principle of
specificity applies, which means that muscular
endurance is activity specific. A marathon runner,
although having muscular endurance in their legs
would not mean that they can skate the same
distance. By simply running, police officers should
not believe they could grapple on the ground
longer than a subject that trains for this
stimulus.
Flexibility
This is the ability to move the joints through a
range of motion. In weight training it is vital to
exercise both sides of a joint so as to not limit
joint flexibility. Benefits of Flexibility include:
• Less energy to move a joint through a range of
motion
• Decreased risk of injury
• Increased blood supply and nutrients to joint
structures
• Increased neuromuscular coordination /
opposing muscle groups work in a more
synergistic or coordinated fashion.
• Improved muscular balance and postural
awareness

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November/December 2006

This is the ability to maintain the center of body
mass over a base of support. This is another very
important factor for a police officer as the
officer’s ability to be stable when the body is in
motion is a crucial element in a physical
confrontation.
Body Composition
Age, height, gender, body type, body mass, muscle
fiber type etc. This can greatly affect a police
officer. However, there are many of these
components an officer cannot do anything about
(age, gender, etc). Each officer brings their
genetic inheritance into the mix. However, how
they train, how they use available strategies, and
how they integrate these strategies in
performance dictates the degree of success.
Cardiorespiratory Fitness/Aerobic Endurance
This is the ability to persist or sustain activity
for a prolonged period of time. For best results
strive for 50 to 85 % of maximal oxygen uptake
to get optimal cardiorespiratory results. Duration
will vary depending on intensity. Generally, police
officers with greater Cardiorespiratory Fitness
have more stamina, less fatigue, and fewer risks
of injuries.
Agility
Agility is sometimes thought of as the culmination
of nearly all the physical abilities that a person
possesses. It is the ability to stop and change
direction quickly.
There are few, if any,
confrontational situations that require speed in
only a straight-line movement. Agility is composed
of:
• Coordination
• Stabilization
• Biomechanics

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17

•
•
•
•
•
•
•

Speed
Strength (stabilizing / propulsive)
Energy system development
Elasticity
Power
Dynamic Balance
Mobility

Coordination
Coordination can reflect how well joints manage
the muscular firing patterns between or among
them. It is crucial in the hand-eye relationship
needed in policing.

There are studies that show a tennis player has
greater agility when they have a tennis racquet in
their hand then when they do not. Thus, training
agility is optimized when the implement you wish
agility to be utilized is used when training (eg.
baton, sidearm, empty-handed etc.
Agility is often overlooked as an aspect of fitness
but is an extremely important one for a police
officer. One of the most important qualities of
control tactics is for the officer to get off the
line of attack.
Most police attacks are
spontaneous. Whether a fist, knife, or bullet, an
officer able to get off the line of attack is far
more likely to win the confrontation.
Quickness / Reaction time
This is reaction time and movement time in
response to a specific stimulus. This fitness
aspect is very important to policing as well. How
fast can the officer get to their equipment when
the stimulus is presented to the officer – draw
sidearm, baton, etc. If this aspect is enhanced
the police officer can enhance their chances of
success in a confrontation.
Quickness allows a small officer to prosper in a
big “man’s” game and gives a large officer another
way to improve their tactics.
Speed
This is basically how fast a person can move from
point “A” to point “B” forward, backward or
laterally. Pure speed can give a police officer an
advantage in getting to cover, tactically repositioning, getting to the aid of a victim, or
catching a suspect in a short foot chase.

18

Coordination is prominent in transition exercises –
eg. baton to sidearm. It is also important in
shooting, and many other firearm activities.
In future articles I will break down each fitness
component and show you ways to improve each!
(reference: Bill Foran; High Performance Sports
Conditioning)

TRAVELLER NOT DETAINED
DURING ROUTINE SEARCH AT
BORDER
U.S. v. Reda, 2006 QCCA 1254
The applicant, a Canadian
citizen, was subject to a routine
search of his vehicle by Canada
Customs while entering from
the United States. His vehicle
had been entered as a lookout on the customs
computer indicating “proceed of crime” and he
was referred to secondary. In his vehicle
customs officers found a telephone bill and a
small amount of amphetamines. He was asked to
remove his jacket and it felt unusually heavy. He
was escorted to a detention room where his
jacket was searched and a sum of $151,137.25
USD was found in 16 pockets of his jacket. He
was arrested for drug smuggling and cautioned,
read the secondary warning, and his rights to
legal counsel were explained. He was then frisk
searched and subjected to a strip search.
It was learned that he did not declare this
money to US Customs before leaving the US. A
copy of the telephone bill was transmitted to the
US Bureau of Immigration and Customs
Enforcement (BICE). As a result of a BICE

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investigation, the US was seeking to extradite
the accused on drug and possession charges.
The accused sought various forms of Charter
relief in Quebec Superior Court including the
exclusion of evidence from the extradition
proceeding gathered by Canada Customs, an
order forbidding Canadian authorities from
providing the evidence to the US, and an order
staying the proceedings. He argued, in part, that
the search of his person and vehicle violated s.8
of the Charter and that his rights under s.10(b)
were breached.
The extradition judge found the applicants
Charter rights were not breached. Under s.98 of
the Customs Act a customs officer only need
suspect on reasonable grounds that a person has
prohibited material secreted on or about their
person to conduct a search. The same standard
applies to vehicle searches under s.99. In this
case, the officer had reasonable grounds to
suspect the applicant’s car may be importing a
large amount of currency. She then found the
telephone bill in the van and the money in his
jacket. The search of the car and request for
the jacket was a routine search of baggage and a
pat or frisk of outer clothing as described by the
Supreme Court of Canada as falling in the first
category of border searches. The applicant was
therefore not detained in the constitutional sense
at this point. The telephone bill and the finding of
the money was admissible as proof for the
extradition hearing.
The applicant then appealed the judgment to the
Quebec Court of Appeal. In a unanimous opinion,
the Court dismissed the appeal and ordered the
applicant surrender to the authorities within 48
hours. The Court stated:
The fact that there was a “look out” in the
customs system when the appellant approached
the Canadian border that was acted on by the
customs authorities does not mean, in the
circumstances revealed by the testimony of
the three customs officers, that the appellant
was detained when the elements of proof that

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he sought to have excluded by the extradition
judge were uncovered. Unlike the facts
described in Jacoy, [1988] 2 S.C.R. 548, they
were not exercising their authority as customs
officers in the pursuit of an active police
investigation. [para. 2]
Complete case available at www.canlii.org

INJURIES TOO REMOTE TO
HOLD POLICE LIABLE
Rhora v. Ontario,
(2006) Docket:C42091 (OntCA)
The plaintiff was diagnosed
with bipolar disorder and placed
on a lithium regime. He had
stopped taking his medication
and one day, while intoxicated, hit his head and
fell unconscious. He went to the hospital for
treatment and was released. Five days later he
called the police and asked them to come and
arrest him for growing marijuana. He said he was
afraid that some people would take his plants
and hurt or kill him. When the police arrived,
they found him armed with a knife and a pellet
gun and with broken glass in his pockets; his
room had been trashed and he reported that he
had been taking heroin. The police charged him
with possession of weapons and took him into
custody. They noted that he was acting
strangely, but that he was calm. Although they
considered using s. 11 of Ontario’s Mental Health
Act to take him to a hospital, they decided that
by arresting him any danger to him or others
would be addressed.
The plaintiff was kept overnight at the police
station and then transferred to a detention
centre. While in custody, the police learned from
the plaintiff’s ex-wife that he suffered from a
chemical imbalance and had been prescribed
lithium. The police, however, did not pass this
information on to the detention centre. The
detention centre did learn from the plaintiff’s
relatives that he had a six-year psychiatric
history where he exhibited strange behaviour.

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He also acted aggressively during a visit from his
brothers. He was subsequently placed in the
psychiatric unit in a cell with two other men. He
later fought with the two other men, killing one
of them.
He was taken to the hospital for his injuries and
saw a staff psychiatrist at the detention centre
the next day. No medication was prescribed and
he subsequently injured himself in his cell by
banging his head against the wall. He was tried
for murdering his cell-mate but was found not
guilty by reason of mental disorder. He was held
on a warrant of committal and released into the
community eight years later on medication.
The plaintiff and his family sued the police,
among others, for failing to immediately apply
s.11 of the Mental Health Act and send him for a
psychiatric assessment. This negligence, it was
suggested, resulted in the plaintiff killing his
cell-mate, receiving an eight-year committal, and
suffering significant head injury.
Section 11 of the Mental Health Act reads:
s. 11 Mental Health Act
Where a constable or other peace officer observes a person
who acts in a manner that in a normal person would be
disorderly and has reasonable cause to believe that the
person
(a) has threatened or attempted or is threatening or
attempting to cause bodily harm to himself;
(b) has behaved or is behaving violently towards another
person or has caused or is causing another person to fear
bodily harm from him; or
(c) has shown or is showing a lack of competence to care for
himself,
and in addition the constable or other peace officer is of the
opinion that the person is apparently suffering from mental
disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) imminent and serious physical impairment of the person,
and that it would be dangerous to proceed under s. 10
[bringing information on oath before a justice of the peace for
an order for assessment by a physician], the constable or
other peace officer may take the person in custody to an
appropriate place for assessment by a physician.

At trial in the Ontario Superior Court of Justice
the trial judge dismissed the action. The trial
judge found that neither the police nor the

20

detention centre fell below the standard of care
required of them and even if they did, the
damages the plaintiff suffered were not
foreseeable and were too remote. Nor was there
any systemic negligence. Further, the head
injury probably resulted from his earlier fall at
home when he struck his head. He also held that
the police may take into account neighbourhood
factor’s and its residents when deciding what is
“normal” under s.11 and that the police need not
revisit a decision not to seek an assessment.
The plaintiff appealed the findings of the trial
court denying liability to the Ontario Court of
Appeal. Writing the opinion of the court, Justice
Feldman dismissed the appeal. The police did not
breach their duty of care. And even if the
defendants did not meet the standard of care
required of them, the action or inaction of the
defendants did not cause the damages. The
failure of the police to communicate information
about the plaintiff’s mental illness to the
detention centre was not a proximate cause of
the killing or of any further injury to the
plaintiff and any damages he suffered were too
remote.
Justice Feldman, however, did note that the trial
judge erred in his interpretation of what is
“normal” under s.11 of the Mental Health Act by
allowing the police to consider factors relating
to the nature of the plaintiff’s neighbourhood
and its residents (someone living in one of the
city’s toughest neighbourhoods and involved with
drugs). He stated:
This type of analysis could well result in a
hands-off approach by the police to people
who may be in dire need of psychiatric help.
This would further disadvantage those who are
already living on the fringes of society. On the
other hand, the police were entitled to
consider the fact that the appellant told them
he had been taking heroin when they assessed
whether his behaviour was “disorderly” as
compared to a “normal” person, in the context
of s. 11. [para. 18]

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Despite this error, the officers involved did
consider him acting very strangely. However,
they determined he did not meet the other
criteria under s.11 and decided not to seek an
assessment. The plaintiff’s admission he took
heroin would affect his judgment and
perceptions. He was calm and compliant. The
police did not err in their decision.
The trial judge also erred in holding that the
police need not revisit a decision not to seek an
assessment under s.11 if they learn new relevant
information. If the police decide not to seek an
assessment but new relevant information is
learned, they should revisit their decision under
s.11. But once again, the police saw no signs of
violence in the plaintiff’s behaviour and were not
negligent in not referring the plaintiff for
assessment after learning of his mental illness.

Training
Justice Feldman commented on the desirability
of specialized training for police officers to
assist them in dealing as effectively as possible
with mentally ill prisoners. Although he noted
that police officers are not psychiatric
professionals, “it is apparent from many aspects
of this case, including the initial arrest of the
[plaintiff], that it would be helpful for the police
to have more training in evaluating abnormal
behaviour, so that they are able to make the
best judgment possible to apply the criteria of
the Act in the interests of the individual and of
society.”
Complete case available at www.ontariocourts.on.ca

DELAYED POLICE ARRIVAL
EXPLAINED BY BUSY NIGHT
R. v. Carey,
(2006) Docket:C43623 (OntCA)
A witness telephoned 911 in the
early morning hours to report a
motor vehicle accident when a
car left the roadway and struck

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a light standard. The caller did not indicate that
alcohol might be involved. About an hour later an
officer, who saw the call was still outstanding,
arrived on scene and arrested the accused for
impaired driving. He was taken to the police
station where two samples of his breath were
taken, both over the legal limit. The first sample
was taken one hour an forty minutes after the
accident.
At trial in the Ontario Court of Justice the
accused argued that the Crown had failed to
prove the breath samples were taken as soon as
practicable after the accident as required by
the Criminal Code. The trial judge, however,
found the delay could be explained because the
police did not arrive and start their investigation
until some one hour and ten minutes after the
accident. The accused was convicted of over
80mg% and the impaired charge was stayed.
The accused successfully appealed to the
Ontario Superior Court of Justice. The appeal
judge held the trial judge erred in considering
only the delay from police arrival until the tests
were taken. In his view, the Crown failed to
reasonably explain the delay in attending the
accident. It wasn’t enough for the officer to say
they were busy that night. The Crown failed to
prove the breath samples were taken as soon as
practicable, the accused’s appeal was allowed,
and his conviction quashed.
A further appeal by the Crown to the Ontario
Court of Appeal was successful. Justice
Juriansz, writing the judgment of the Court,
agreed that the trial judge applied the wrong
legal standard when he considered only the time
between the officer’s arrival and the taking of
the breath samples. However, this was not a case
where a delay occurred after the driver had
been detained and the breath demand had
already been made. Rather, the delay that
required explanation in this case occurred
before the grounds for the demand developed.
Justice Juriansz stated:

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21

In my view, the arresting officer’s testimony
that it was a busy night and that other calls
were waiting coupled with the fact that there
had been no suggestion in the initial call that
alcohol might have been involved in the
accident was capable of supporting a finding
that the delayed police arrival was reasonable
in the circumstances. It was unnecessary for
the Crown to call a senior officer from the
detachment or the dispatcher on duty to
explain how the police were deployed to the
various patrol areas or to provide details about
what other calls occupied the police that
night. In my respectful view, the other
possible inferences suggested by the appeal
judge, for example that there might have been
fourteen murders in town that night, were
speculative. [para. 16]

A new trial was ordered.
Complete case available at www.ontariocourts.on.ca

HAIRCUT DISCRIMINATION
COMPLAINT DISMISSED
Mosher v. West Vancouver Police
Department & others,
2006 BCHRT 86
A police officer filed a
complaint with the BC Human
Rights Tribunal alleging that his
department, police chief, and
inspector discriminated against
him on the basis of sex, contrary to s.13 of the
Human Rights Code, because there were
different grooming standards for male and
female hair length. In his view, these different
standards were discriminatory and the same
standard should apply to both genders.
After reviewing the purposes of the Human
Rights Code, Tribunal Member Barbara
Humphreys dismissed the officer’s complaint.
She stated:
In my view, a different hair grooming standard
for female and male officers does not
constitute an impediment to [the officer’s]

22

ability to participate fully in the economic,
social, political or cultural life of British
Columbia nor does it impact on his dignity.
Given the substance and context of this
complaint, and its de minimus nature, it would
not, in my opinion, further the purposes of the
Code to proceed with the complaint …[para. 10]
Complete case available at www.bchrt.bc.ca

‘IN SERVICE’ LEGAL ROAD
TEST ANSWERS
1. (a) True —see R. v. Le & Nguyen, R. v. Tran (at
p. 7 of this publication).
2. (a) True—see R. v. Rajaratnam (at p. 8 of this
publication).
3. (b) False—see R. v. Wallis (at p. 11 of this
publication).
4. (b) False—see R. v. Powers (at p. 24 of this
publication).

WITNESS TO POLICE
MISCONDUCT NOT A PERSON
‘DIRECTLY AFFECTED’
Canadian Civil Liberties and Rolfe v.
Ontario Civilian Commission on Police
Services,
(2006) Docket:C45104 (OntCA)
A witness (Rolfe) believed he
saw police misconduct. He said
he saw a police officer escorting
a handcuffed woman from a
store and suddenly slam her to
the ground, causing her to strike her head on the
pavement. He was “stunned” by the officer’s
actions and found the incident to be very
disturbing, causing him anxiety and loss of sleep.
One year later Rolfe filed a formal complaint
under Ontario’s Police Services Act relating to
the officer’s conduct. The Police Chief advised
Rolfe his complaint would not be treated as a

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formal complaint because he had not been
“directly affected” by the alleged conduct, as
required by s.59 of the Act. The police would not
disclose any information to Rolfe about an
internal investigation that resulted from his
allegations nor its conclusions. Rolfe asked the
Ontario Civilian Commission on Police Services to
review the Police Chief’s decision, but they
agreed with it.
A judicial review was then undertaken in
Divisional Court of the Ontario Superior Court of
Justice to determine whether Rolfe was a person
“directly affected” by the police conduct.
Section 57(1) of the Police Services Act states
that “a complaint may be made by a member of
the public only if the complainant was directly
affected by the…conduct that is the subject of
the complaint,” while s.59(5) states that “the
chief of police shall not deal with any complaint
made by a member of the public if he or she
decides that the complainant was not directly
affected by the…conduct that is the subject of
the complaint.”
Justice Molloy, with Justice Lane concurring,
concluded that a person “directly affected” is
someone more than merely “affected” and
requires “some direct link between the person
filing the complaint and the police conduct which
is the subject of the complaint, something that
distinguishes the complainant’s interest from
that of any other member of the community.”
Requiring a person to be injured by the police
was far too restrictive of an interpretation of
“directly affected” while allowing anyone unhappy
with the police to complain would be too broad.
In holding Rolfe a person “directly affected”,
Justice Molloy wrote:
He was actually present at the time of the
alleged assault. He witnessed at close range
the assault and its aftermath. He spoke to
the police officer. He was disturbed by what
he saw and shaken by it even after the event.
In other words, he was directly affected by
what he witnessed, even though he was not
physically struck by the police. His position

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goes beyond that of a concerned citizen as
part of the general community; his experience
was firsthand.

Associate Chief Justice Cunningham disagreed
with the majority. In his view Rolfe was not a
person “directly affected” but merely a witness.
He stated:
It would be unreasonable to conclude that the
Legislature intended each and every witness to
alleged misconduct could interject themselves
into the process of resolving public complaints,
including becoming a party to any hearing and
having rights of appeal from any decision
taken. Moreover, no useful purpose would be
served by having this matter designated as a
public complaint since the matter has been
fully investigated and dealt with by the Chief
of Police. Treating this as a public complaint
would allow Rolfe to obtain personal
information concerning the alleged victim and
to make decisions about the processing of the
complaint. Indeed, I see no utility in having
Rolfe’s complaint designated as a public
complaint. In fact mischievous results could
arise from doing so. [para. 4]

And further:
There can be little doubt that Rolfe was
“affected” by the impugned conduct. However,
that is not enough. He has no personal
interest in the matter. If the Legislature
intended to include anyone “affected” by police
conduct, it would not have included the word
“directly” in the legislation. By including the
word “directly”, the Legislature clearly sought
to carefully circumscribe the right of
complaint. By including the word “directly” as
an adverb, the Legislature must have intended
there to be a degree of proximity before a
person “affected” would be able to lodge a
complaint. [para. 15]

The majority allowed the application for judicial
review, set aside the Commission’s decision, and
Rolfe’s complaint was sent back to the Police
Chief to be treated as a formal complaint as a
person “directly affected” by the alleged police
conduct.

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23

The Commission then appealed the Divisional
Court’s decision to the Ontario Court of Appeal.
In a unanimous endorsement, the appeal court
found the majority’s interpretation of “directly
affected” wrong. “Directly affected” requires
the person have a personal and individual
interest rather than just a general interest that
pertains to the whole community. In this case,
Rolfe could not provide the necessary link that
he was “directly affected.” The appeal was
allowed.
Complete case available at www.ontariocourts.on.ca

STATUTORILY COMPELLED
STATEMENT AT ACCIDENT
SCENE INADMISSIBLE
R. v. Powers, 2006 BCCA 454
The accused clipped the back
of another vehicle on a highway
and ended up in the ditch. A
police officer arrived on scene
and both the accused and the other driver were
present. The officer asked, “Who is the driver
of the car in the ditch.” The accused said he
was. The officer noted the accused had red eyes
and his breath smelled of alcohol. The approved
screening device demand was given and he failed.
A breathalyzer demand was made and the
accused subsequently provided samples of his
breath in excess of 80mg%.
At trial in British Columbia Provincial Court the
judge ruled that the accused’s admission he was
driving was inadmissible under s.24(1) of the
Charter. He thought he was required to answer
the officer’s question and report the accident to
police. Without the admission, the officer did
not have the reasonable suspicion required that
there was alcohol in the body of a person
operating a vehicle. The fail reading on the
approved screening device, therefore, could not
be used to support grounds for the breath
demand. Accordingly the officer did not have
reasonable grounds to make the demand in terms

24

of identifying the accused as the driver of the
vehicle in the ditch. He was acquitted of driving
over 80mg%. A Crown appeal to the British
Columbia Supreme Court was unsuccessful. The
Crown further appealed to the British Columbia
Court of appeal.
Justice Saunders, authoring the unanimous
opinion of the appeal court, dismissed the appeal.
Section 7 of the Charter guarantees that
everyone has the right not to be deprived of
life, liberty and security of the person except in
accordance with the principles of fundamental
justice, which includes the principle against selfincrimination induced by statutorily compelled
information. Section 67 of British Columbia’s
Motor Vehicle Act requires the driver of a
motor vehicle involved in an accident to report
the accident to police and provide information
about the accident as required by the police.
Although the question posed by the officer was
no more than a preliminary exchange expected in
a situation like this and was no more than what
might be asked by an interested bystander, the
officer was starting to mentally complete the
accident investigation report and the accused
felt obligated to answer. The statement made by
the accused was self-incriminatory and its
admission into the trial would contravene s.7 of
the Charter.
Nor was the statement admissible for the
limited purpose of establishing reasonable
grounds for making a breath demand under s.254
of the Criminal Code. The trial judge did not err
in ruling the statement admissible under s.24(1)
of the Charter.
Complete case available at www.courts.gov.bc.ca

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