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04'J=E1<'E>3'J<EK'JEF4

“They Are Our Heroes.
We Shall Not Forget Them.”
inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

Be Smart & Stay Safe

Volume 12 Issue 6

Volume 12 Issue 6 - November/December 2012

Highlights In This Issue
Seeing The Risk & Taking The Chance Imparts
Knowledge

5

Possession Proven Despite Drug’s Removal

6

Police Breach Privacy By Searching Teacher’s Work
Issued Computer

8

Stay Upheld For Extrajudicial Punishment

13

Patting Down & Securing Motorist In Police Car Not
Reasonably Necessary

14

Low Viral Count & Condom Use Negates Realistic
Possibility Of HIV Transmission

17

Delay Justified: Detention Not Arbitrary

20

Remand Did Not Renew Right To Counsel

21

Grounds Viewed Cumulatively Provided Basis For
Warrant

22

Police Duty To Inform Of Rights: Detainee’s Duty To
Pursue Them

24

No Hard & Fast Rules For Investigative Articulable
Cause

26

Police Leadership Conference

28

National Library of Canada
Cataloguing in Publication
Data

Unless otherwise noted all articles are
authored by Mike Novakowski, MA, LLM. The
articles contained herein are provided for
information purposes only and are not to be
construed as legal or other professional
advice. The opinions expressed herein are not
necessarily the opinions of the Justice Institute
of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to
this newsletter. If you would like to be added
to our electronic distribution subscribe at:

www.10-8.ca

POLICE LEADERSHIP
APRIL 7-9, 2013
C o m i n g s o o n ! ! ! Th e B r i t i s h
Columbia Association of Chiefs of
Police, the Ministry of Public Safety
and Solicitor General, and the
Justice Institute of British Columbia
Police Academy are hosting the
Police Leadership 2013 Conference
in Vancouver, British Columbia. This is Canada’s
largest police leadership conference and will
provide an opportunity for delegates to discuss
leadership topics presented by world renowned
speakers.

“The Service of Policing:
Meeting Public Expectations”

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

www.policeleadershipconference.com
see pages 28-29

Graduate Certificates
Intelligence Analysis
or

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.
PAGE 2

Tactical Criminal
Analysis
www.jibc.ca

see
pages
30-31

Volume 12 Issue 6 - November/December 2012

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

The 22 immutable laws of branding: how to build
a product or service into a world-class brand.
Al Ries and Laura Ries.
New York, NY: HarperBusiness, c2002.
HD 69 B7 R537 2002
The anxiety & phobia workbook.
Edmund J. Bourne.
Oakland, CA: New Harbinger Publications, c2010.
RC 531 B67 2010
Appreciative inquiry in higher education: a
transformative force.
Jeanie Cockell, Joan McArthur-Blair.
San Francisco, CA: Jossey-Bass, 2012.
LC 1100 C63 2012
The art of teaching [videorecording]: best practices
from a master educator.
Patrick N. Allitt.
Chantilly, VA: Teaching Co., c2010.
4 videodiscs (ca. 720 min.) : sd., col. ; 4 3/4 in. + 1 course
guidebook (xvi, 81 p. ; 19 cm.)

Course guidebook includes professor biographies,
statement of course scope, lecture outlines and
notes, glossary and bibliography. Teaching is more
than a job-- it's a responsibility, one of the greatest
responsibilities in civilized society. Teachers lay bare
the mysteries of the world; train minds to explore,
question, investigate, and discover; and ensure that
knowledge is not lost or forgotten but passed on to
future generations. Teachers shape lives in limitless
ways, both inside and outside of the classroom. But
teaching is no easy task. It's an art form that requires
craft, sensitivity, creativity, and intelligence.

Whether the classroom consists of 3 students or 300,
it's important to be as effective and successful a
teacher as possible, both for the students and for
professional and personal growth. This program is
designed to help develop and enhance teaching
style; provide methods, tools, and advice for
handling all manner of teaching scenarios; and help
viewers achieve new levels of success as teachers.
LB 1025.3 A46 2010 D1494

Best laid plans: the tyranny of unintended
consequences and how to avoid them.
William A. Sherden.
Santa Barbara, CA: Praeger, c2011.
BF 448 S44 2011
Boundless potential: transform your brain,
unleash your talents, reinvent your work in
midlife and beyond.
Mark Walton.
New York, NY: McGraw-Hill, c2012.
BF 724.65 M53 W35 2012
Combining e-learning and m-learning: new
applications of blended educational resources.
[edited by] David Parsons.
Hershey, PA: Information Science Reference, c2011.
LB 1044.84 C56 2011
Elements of crisis intervention: crises and how to
respond to them.
James L. Greenstone, Sharon C. Leviton.
Belmont, CA: Brooks-Cole, c2011.
RC 480.6 G719 2011
Facilitating with ease!: core skills for facilitators,
team leaders and members, managers,
consultants, and trainers.
Ingrid Bens.
San Francisco, CA: Jossey-Bass, c2012.
HD 66 B445 2012
How Canadians govern themselves.
Eugene A. Forsey.
Ottawa, ON: Library of Parliament, 2012.
JL 65 F67 2012

PAGE 3

Volume 12 Issue 6 - November/December 2012
Lead by greatness: how character can power your
success.
David Lapin.
[US]: Avoda Books, c2012.
HD 57.7 L375 2012

Trauma, psychopathology, and violence: causes,
consequences, or correlates?
edited by Cathy Spatz Widom.
New York, NY: Oxford University Press, c2012.
RC 552 P67 T73 2012

The leadership challenge: how to make
extraordinary things happen in organizations.
James M. Kouzes, Barry Z. Posner.
San Francisco, CA: Jossey-Bass, c2012.
HD 57.7 K68 2012

The trustworthy leader: leveraging the power of
trust to transform your organization.
Amy Lyman.
San Francisco, CA: Jossey-Bass, c2012.
HD 57.7 L94 2012

Lean but agile: rethink workforce planning and
gain a true competitive edge.
William J. Rothwell, James Graber, Neil McCormick.
New York, NY: American Management Association,
2012.
HF 5549.5 M3 R662 2012

JIBC POLICE ACADEMY
APPOINTS NEW DIRECTOR

Managing for people who hate managing: be a
success by being yourself.
by D e vo r a Z a ck ; i l l u s t r a t i o n s by J e e va n
Sivasubramaniam.
San Francisco, CA: Berrett-Koehler, c2012.
HD 38.2 Z335 2012
Managing stress : emotion and power at work.
Tim Newton with Jocelyn Handy and Stephen
Fineman.
London; Thousand Oaks: Sage Publications, 1995.
BF 575 S75 N48 1995
More jolts!: 50 activities to wake up and engage
your participants.
Sivasailam "Thiagi" Thiagarajan and Tracy Tagliati.
San Francisco, CA: Pfeiffer, c2012.
HD 30.26 T487 2012
Personality style at work: the secret to working
with (almost) anyone.
Kate Ward.
New York, NY: McGraw-Hill, c2012.
BF 698.9 O3 W37 2012
Practical research: planning and design.
Paul D. Leedy, Jeanne Ellis Ormrod.
Boston, MA: Pearson, [2012], c2013.
Q 180.55 M4 L43 2012

Mr. Steve Schnitzer has
accepted the position of
Director, Police Academy,
effective November 5,
2012. Steve has been the
Interim Director in the
Police Academy since
February 2012. He joined
the JIBC as a Program
Director in the Justice &
Public Safety Division in
September 2010 after
retiring from a 30 year career with the Vancouver
Police Department.
In the Vancouver Police Department Steve had a
varied career where operationally he had significant
expertise in major event planning and public order
events. As a result of his expertise he was designated
the Venue Commander for BC Place Stadium and
Canada Hockey Place during the 2010 Olympic and
Paralympic Games. Steve ended his career with the
Vancouver Police Department as the Superintendent
in charge of Personnel Services, which oversaw
Human Resources, Professional Standards, and
Recruiting and Training.
Steve earned a Masters degree in Leadership and
Training at Royal Roads University in 2007 and
brings significant leadership experience, knowledge
and skills to this role.

PAGE 4

Volume 12 Issue 6 - November/December 2012

SEEING THE RISK & TAKING THE
CHANCE IMPARTS KNOWLEDGE
R. v. Schepannek, 2012 BCCA 368
The accused was visiting her
common law inmate husband at a
provincial correctional facility.
During the visit she passed her
husband a package which was later
found to contain hashish and marihuana, as well as
tobacco. A video taken from surveillance cameras at
the visiting area captured her making the delivery.
She took the package from her underwear and
passed it over the partition to her husband. He then
hid it on his person. The accused was charged with
trafficking in hashish and marihuana.

British Columbia Court of Appeal
The accused argued, among other
grounds, that the trial judge erred
in treating recklessness (mens rea)
as establishing that she had legal
knowledge that illicit drugs were in the package.

Recklessness
The test for recklessness, as described by the
Supreme Court of Canada in R. v. Sansregret (1985),
18 C.C.C. (3d) 233 (S.C.C.), is:
It is found in the attitude of one who, aware that
there is danger and that his conduct could bring
about the result prohibited by the common law,
nevertheless persists, despite the risk. It is, in
other words, the conduct of one who sees the
risk and who takes the chance. It is in this sense
that the term “recklessness” is used in the
criminal law ... The culpability in recklessness is
justified by consciousness of the risk and by
proceeding in the face of it, while in wilful
blindness it is justified by the accused's fault in
deliberately failing to inquire when he knows
there is reason for inquiry.

British Columbia Provincial Court
The accused admitted she passed her
husband the package, but denied
knowing it contained drugs. She said her
husband telephoned her, said he was in
trouble and needed her help by bringing tobacco to
him on a future visit to the correctional facility. She
testified she knew it was against the facility’s rules
because tobacco is considered contraband.
Nevertheless, she agreed to meet a man, who she
did not know nor had ever met or seen before, in the
parking lot of a community school. He passed her a
sock and said, “Give this to Jimmy”. The meeting
was brief and nothing else was said. The accused
took the package home, removed it from the sock,
threw the sock away and left the plastic package on
top of her fridge unopened. She claimed she did not
know the package contained drugs, and thought it
was tobacco.
The accused suggested she had an honest, but
mistaken belief and therefore the mens rea of
possession had not been proven beyond a
reasonable doubt. The judge found the Crown had
not proven actual knowledge beyond a reasonable
doubt but had established recklessness—the conduct
of one who sees the risk but takes the chance. She
was reckless as to the nature of the substance in the
package and this was so at all material times after it
came into her possession. She was convicted of
trafficking in both hashish and marihuana.

The Court of Appeal found there was sufficient
evidence upon which the judge could conclude
knowledge had been proven. The judge could infer
recklessness from the nature of the husband’s
request, and the unusual meeting and hand-off of a
package in a sock said to contain a substance
represented to be simply tobacco, a product readily
available in commercial establishments. Plus, the
accused’s own testimony was that she knew the
package could contain cocaine or a weapon and she
“decided not to look inside”. The accused’s appeal
was dismissed.
Complete case available at www.courts.gov.bc.ca

Sidebar: To establish mens rea, or the knowledge
element of the possession offence, the Crown was
required to prove that the accused had legal
knowledge that illicit drugs were in the package.
This could be established by proving either:
1. Actual knowledge;
2. Recklessness — seeing the risk and taking the
chance; or

PAGE 5

Volume 12 Issue 6 - November/December 2012
3. Wilful blindness — becoming aware of the
need for some inquiry but declining to make
the inquiry because a person does not wish to
know the truth.

sentenced to two 12-month concurrent conditional
sentences.

POSSESSION PROVEN DESPITE
DRUG’s REMOVAL

The accused argued, among other
things, that possession of the drugs
had not been made out at law
since he received a package
containing no marihuana. The Crown conceded the
conviction for trafficking was unreasonable, it was
set aside, along with the sentence, and an acquittal
was entered. As for the PPT count, “possession” was
a necessary element. The Court of Appeal noted that
in some parts of Canada the police practice is to
remove all of the drugs from an intercepted
shipment while in other parts of Canada the practice
is to remove almost all of the drugs, but leave a
small amount in order to meet the requirement for
“possession”.

R. v. Wall, 2012 NLCA 67
The accused went to a vacant
apartment rented by his cousin
where he received delivery of a
package addressed to “J. Wahl”. The
package was delivered by an RCMP
officer dressed in a Canada Post uniform. The
package had been earlier intercepted by authorities
and found to contain 7 ½ pounds of marihuana. The
marihuana had been removed before the package
was delivered and was replaced with lawn grass.
Shortly after delivery was accepted, the police
entered the house and found the accused alone. The
package was open and its contents were found on
the ground outside a window of the house. The
accused was charged with trafficking and possessing
marihuana for the purpose of trafficking (PPT).

Newfoundland Court of Appeal

In this case, the accused never had personal
possession of the marihuana—it had been removed
from the package. However, possession can also be
proven constructively or jointly. “For constructive
possession, two elements are required: the accused
must have knowledge and ‘some
“For joint possession,
Newfoundland Provincial Court
measure of control over the item
three elements are
to be possessed’," said Justice
The accused testified he was
Rowe
speaking for the Court of
required: ‘knowledge,
in the apartment to do some
Appeal. “For joint possession,
consent and a measure of
repairs so that his cousin
three elements are required:
could get the security deposit
control on the part of the
‘knowledge, consent and a
back. He said he had no knowledge of
measure
of control on the part of
person deemed to be in
the package and its marihuana content.
the person deemed to be in
The accused’s cousin did not testify, but
possession’.”
possession’." Here, the
the landlord did, stating he did not know
requirements for joint possession by the accused
the accused, had not given him permission to be in
were made out because the requisite knowledge,
the house and was unaware that anything needed to
consent and control could be inferred. He accepted
be fixed for return of the security deposit. The trial
delivery of the package believing it contained drugs
judge disbelieved the accused’s testimony and found
and opened it. The appeal on the PPT conviction
he "had no legitimate business being at this
was dismissed. As for the sentence, it remained
particular address" and it "would be an astronomical
intact since the penalties imposed ran concurrently.
coincidence, it would be a coincidence beyond any
reasonable or rational belief whatsoever that he
Complete case available at www.canlii.org
could be there and that package was delivered at
that particular point in time". The judge inferred the
Sidebar: The Court in Wall referred to its earlier
accused made arrangements to receive the package
ruling of R. v. Bonassin, 2008 NLCA 40. Bonassin
and accepted it believing it contained drugs. The
was convicted of possessing cocaine and marijuana
accused was convicted of both offences and
for the purpose of trafficking. As in Wall, the police

PAGE 6

Volume 12 Issue 6 - November/December 2012
in Bonassin intercepted a parcel (this time a
computer), removed the drugs and had the package
delivered containing an equivalent weight in books.
The trial judge concluded that Bonassin intended to
take the parcel which he believed contained
drugs. On appeal, two judges agreed that the
accused was guilty of joint possession because he
entered into an agreement with another person
regarding the drugs before they were removed by the
police. In upholding the convictions, the majority
noted that there are generally three components of
possession:
1. knowledge of the item,
2. intention or consent to have possession of
the item, and
3. control over the item.
In the majority’s view, it was not necessary that
Bonassin take actual possession of the drugs.
Instead, the three elements of knowledge, consent,
and control were established.
“By permitting delivery of the ‘fake’ parcel, the
police identified Bonassin as a participant in the
trafficking scheme,” said Justice Welsh. “Joint
possession of the drugs by Bonassin at the relevant
time, that is, prior to seizure of the parcel by the
police, was proved beyond a reasonable doubt, and
convictions were properly entered.” Bonassin and
the sender had knowledge of the drugs, intended or
consented to have possession of them and had
control over them until they were seized by the
police.
Justice Rowe disagreed, finding there was no
evidence that the accused exerted “control” over the
drugs and therefore joint or constructive possession
had not been proven. Instead he would have found
Bonassin guilty of attempted PPT because all the
elements of PPT had been established except for the
fact that the drugs did not come into his possession they had been removed.

www.10-8.ca

TROLLING FACEBOOK HELPS
WITH IDENTIFICATION
EVIDENCE
R. v. T.A.H., 2012 BCCA 427
A 16-year-old youth, in company a
friend, was robbed of a cell phone
and wallet by three young males.
During the altercation the victim felt
one of the males looked familiar. He
had seen him in the area a short time prior to the
robbery and thought he had seen him before that
date, perhaps in connection with school. Then, after
the incident, the victim and his friend checked
Facebook photos to find the identity of this person.
They did find one picture that looked exactly like the
person, discovered his name and realized he had
earlier attended the victim’s middle school. The
incident was reported to police. A civilian also
turned over some of the victim’s identification to the
police soon after the robbery. This person had seen
three young males going through a wallet in a
parking lot not long after the robbery.

British Columbia Provincial Court
The victim pointed out the accused in
court as one of the robbers. He said that
the accused looked familiar and he was
sure it was him after seeing his picture on
Facebook. The victim’s friend also testified. He
described the events of the robbery and said the
Facebook process occurred two or three hours after
the robbery. He said he was “pretty sure” the person
whose photos were on Facebook was one of the
robbers. The accused, on the other hand, did not
testify.
The trial judge concluded that the Crown had
proven the accused’s identity beyond a reasonable
doubt as being involved in the robbery. Even though
the victim and his friend did the Facebook viewing
together, they were very cautious in giving their
evidence and understood the difference between
their own personal opinion and that which was
shared. “This identification, it is said, was much like
a police officer giving a witness a single photograph
and asking, ‘Is that the man,’ some who, in a general

PAGE 7

Volume 12 Issue 6 - November/December 2012
way, matched the description,” said the judge.
“There is some element of truth to that, in my view,
but there is also some truth to this being as much
like a photo array where a witness is permitted to
look at one photograph after another until making
an identification. I say that because it was not
presented to them, that is, the image, they found it,
and then they found others.” The accused was
convicted of robbery.

British Columbia Court of Appeal
The accused appealed, arguing
that the process of the victim and
his friend looking at Facebook
photos together rendered the
quality of the identification unsafe to convict on or
not properly supported by the evidence. But the
Court of Appeal disagreed. Rather than this being a
case where a witness is asked to identify a stranger
never seen by him before the offence, this was
instead a “recognition” case. Justice Hall, speaking
for the Court of Appeal, stated:
This was not a case where a police officer
showing photos might have influenced a witness
consciously or unconsciously. The two young
men immediately after the event trolled through
images on Facebook and recognized the
[accused] as a person earlier known to them.
Like the trial judge, I am satisfied that there was
no impropriety in the methodology employed by
the two young people. While it might have been
a better practice to have each do the photo
examination separately, the judge found that the
witnesses were cautious in giving evidence and
each made their own decision about identity.
[para. 11]

The trial judge did not err in his consideration of the
evidence or that the accused’s guilt had been proven
beyond a reasonable doubt. The judge carefully and
appropriately analyzed the issue of identification.
The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Leadership and learning are indispensable to each
other.” - John F. Kennedy

POLICE BREACH PRIVACY BY
SEARCHING TEACHER’S WORK
ISSUED COMPUTER
R. v. Cole, 2012 SCC 53
The accused, a high-school teacher,
was responsible for monitoring
student use of school networked
laptops. He was supplied with a
laptop owned by the school board
and accorded domain administration rights on the
school’s network. This permitted him to access the
hard drives of the students’ laptops. The use of the
accused’s work-issued laptop was governed by the
school board’s Policy and Procedures Manual, which
allowed for incidental personal use. The policy
stipulated that teachers’ email correspondence
remained private, but was subject to access by
school administrators if specified conditions were
met. It did not address privacy in other types of files,
but it did state that “all data and messages generated
on or handled by board equipment are considered
to be the property of [the school board].” The
school’s Acceptable Use Policy — written for and
signed by students — also applied mutatis mutandis
to teachers. This policy
Latin Legal Lingo
not only restricted the
“mutatis mutandis” use of student laptops,
with the necessary
but also warned users
changes
in points of
not to expect privacy in
detail;
the
gist remains
their files.
the same.
While performing maintenance activities on the
accused’s laptop, a school board technician found a
hidden folder containing nude and partially nude
photographs of an underage female student. The
technician notified the principal, who directed him
to copy the photographs to a compact disc (CD). The
principal seized the laptop and school technicians
eventually gained access to it, making a CD
containing the accused’s temporary Internet files,
which contained pornographic images. The
following day, a police officer attended and took
possession of the laptop and the two CDs: one CD
contained photographs of the nude student; the
other CD contained the accused’s temporary Internet
files. The officer reviewed the contents of both CDs
at the police station and then sent the laptop away

PAGE 8

Volume 12 Issue 6 - November/December 2012
for forensic examination. A mirror image of the hard
drive was created for that purpose. The accused was
charged with possessing child pornography and
unauthorized use of a computer.

Ontario Court of Justice
The accused brought a pre-trial motion
seeking exclusion of the computer
evidence pursuant to s. 24(2) of the
Charter. The trial judge found that the
accused had a reasonable expectation of privacy in
the contents of his laptop. The warrantless search
violated the accused’s s. 8 Charter rights and all of
the computer evidence was excluded.

Ontario Superior Court of Justice
The Crown challenged the decision of
the trial judge. The appeal judge found
that the accused did not have a
reasonable expectation of privacy and
therefore there were no Charter breaches. The
Crown’s appeal was allowed, the lower court’s
decision was set aside and the matter was remitted
back for trial.

Ontario Court of Appeal
On further appeal by the accused,
the Ontario Court of Appeal held
that he did have a reasonable
expectation of privacy in the
informational content of the laptop, but that this
expectation was “modified to the extent that [the
accused] knew that his employer’s technician could
and would access the laptop as part of his role in
maintaining the technical integrity of the school’s
information network”. The initial remote access by
the technician was not a “search” for s. 8 Charter
purposes. The search and seizure of the laptop by
the principal and the school board (assuming the
Charter applied) were authorized by law and were
reasonable. Further, the creation of the CD with the
photographs was not unreasonable and, since the
accused had no privacy interest in the photographs
themselves, the search and seizure by the police of
the this CD also did not breach s. 8. The accused,
however, retained a continuing reasonable

expectation of privacy in the laptop and the CD with
his temporary Internet files turned over to police. Just
because the seizure by school officials was
reasonable, the police were not endowed with the
same authority and the school board could not
consent to the police search by the police. As the
police had no other lawful authority, a s. 8 breach
was established. The laptop and the mirror image of
its hard drive were excluded under s. 24(2) of the
Charter as was the CD containing the Internet files.
However, since the CD containing the photographs
should have been admissible, a new trial was
ordered.

Supreme Court of Canada
The Crown argued again
that the accused had no
reasonable expectation of
privacy in his employerissued laptop and therefore
its seizure and the copying
of its mirror image and the Internet files were not
unreasonable. Justice Fish, speaking for the Court on
whether there was a Charter breach, noted that s. 8
“guarantees the right of everyone in Canada to be
secure against unreasonable search or seizure. An
inspection is a search, and a taking is a seizure,
where a person has a reasonable privacy interest in
the object or subject matter of the state action and
the information to which it gives access.” He
continued:

PAGE 9

Privacy is a matter of reasonable expectations.
An expectation of privacy will attract Charter
protection if reasonable and informed people in
the position of the accused would expect
privacy.
If the claimant has a reasonable expectation of
privacy, s. 8 is engaged, and the court must then
determine whether the search or seizure was
reasonable.
Where, as here, a search is carried out without a
warrant, it is presumptively unreasonable. To
establish reasonableness, the Crown must prove
on the balance of probabilities (1) that the search
was authorized by law, (2) that the authorizing
law was itself reasonable, and (3) that the

Volume 12 Issue 6 - November/December 2012
authority to conduct the search was exercised in
a reasonable manner. [references omitted, paras.
35-37]

More Note-able Quotes on Privacy

The test for determining whether a person has a
reasonable expectation of privacy depends on the
“totality of the circumstances.” This involves a four
part inquiry:
(1) an examination of the subject matter of the
alleged search: The Court found the subject
matter of the search was not the devices
themselves but the informational content (data)
on the laptop’s hard drive, its mirror image and
the Internet files CD (informational privacy);
(2) a determination as to whether the claimant
had a direct interest in the subject matter: This
could be inferred from the accused’s use of the
laptop to browse the Internet and store personal
information on its hard drive;
(3) an inquiry into whether the claimant had a
subjective expectation of privacy in the subject
matter: Again, the Court found this could be
inferred from the accused's use of the laptop to
browse the Internet and store personal
information on its hard drive; and
(4) an assessment as to whether a subjective
expectation of privacy was objectively
reasonable, having regard to the totality of the
circumstances: Although there is no definitive
list of factors to consider, the Court found the
accused’s subjective expectation of privacy was
objectively reasonable because the information
was highly revealing and meaningful about his
personal life. This was so even though it
involved a work-issued laptop and not a
personal computer in a private residence. Just
because the accused did not own the computer,
which was a relevant consideration, ownership
was not determinative. In this case, there were
factors pulling in opposite directions - some
supporting the objective reasonableness of
privacy (the nature of the information and his
personal use of the work-issued laptop) and
others against (he didn't own it, policy and
practice, and technology - the contents of his
hard drive were available to other users and

“Canadians may reasonably expect privacy in the
information contained on their own personal
computers. In my view, the same applies to
information on work computers, at least where
p e rs o n a l u s e i s p e r m i t te d o r re a s o n a bl y
expected. Computers that are reasonably used
for personal purposes — whether found in the
workplace or the home — contain information
that is meaningful, intimate, and touching on the
user’s biographical core. Vis-à-vis the state,
everyone in Canada is constitutionally entitled
to expect privacy in personal information of this
kind. While workplace policies and practices
may diminish an individual’s expectation of
privacy in a work computer, these sorts of
operational realities do not in themselves
remove the expectation entirely: The nature of
the information at stake exposes the likes,
interests, thoughts, activities, ideas, and
searches for information of the individual user.”
- Justice Fish @ paras. 1-3
“The closer the subject matter of the alleged
search lies to the biographical core of personal
information, the more this factor will favour a
reasonable expectation of privacy. Put another
way, the more personal and confidential the
information, the more willing reasonable and
informed Canadians will be to recognize the
existence of a constitutionally protected privacy
interest. Computers that are used for personal
purposes, regardless of where they are found or
to whom they belong, “contain the details of our
financial, medical, and personal situations” This
is particularly the case where, as here, the
computer is used to browse the Web. Internetconnected devices “reveal our specific interests,
l i kes, and propensities, recording in the
browsing history and cache files the information
we seek out and read, watch, or listen to on the
Internet”. - Justice Fish @ paras. 46-47

technicians with domain administration rights
when connected to the network).
On balance, Justice Fish found the accused did have
an objectively reasonable subjective expectation of
privacy, although it was diminished from what one
might have in a personal computer in their home.

PAGE 10

Volume 12 Issue 6 - November/December 2012
Since he had a reasonable expectation of privacy in
his Internet browsing history and the informational
content of his work-issued laptop, any nonconsensual examination by the police was a
“search” and any taking was a “seizure”.

The School Search
Assuming school officials were state agents for
Charter purposes (a decision left for another day),
the principal had a statutory duty to maintain a safe
school environment under Ontario's Education Act
and therefore, by necessary implication, a
reasonable power to seize and search a schoolboard-issued laptop if the principal believed on
reasonable grounds that the hard drive contained
compromising photographs of a student.

The Police Search
The school's implied power of search and seizure,
however, was not endowed to the police:
The police may well have been authorized to
take physical control of the laptop and CD
temporarily, and for the limited purpose of
safeguarding potential evidence of a crime until
a search warrant could be obtained. However,
that is not what occurred here. Quite the
contrary: The police seized the laptop and CD in
order to search their contents for evidence of a
crime without the consent of [the accused], and
without prior judicial authorization.
... ... ...
In taking possession of the computer material
and examining its contents, the police acted
independently of the school board. The fact that
the school board had acquired lawful possession
of the laptop for its own administrative purposes
did not vest in the police a delegated or
derivative power to appropriate and search the
computer for the purposes of a criminal
investigation. [references omitted, paras. 65-67]

And further:
Where a lower constitutional standard is
applicable in an administrative context, as in this
case, the police cannot invoke that standard to
evade the prior judicial authorization that is
normally required for searches or seizures in the
context of criminal investigations. [para. 69]

In this case, the accused “throughout, retained a
reasonable and ‘continuous’ expectation of privacy
in the personal information on his work-issued
laptop.” The school board was legally entitled to tell
the police what it discovered on the laptop, but it
did not afford the police warrantless access to the
personal information contained within it. “This
information remained subject, at all relevant times,
to [the accused’s] reasonable and subsisting
expectation of privacy,” said Justice Fish. The police,
instead, could have obtained a warrant to search it.

Consent
The employer, as a third party, could not validly
consent to the warrantless search or seizure of a
laptop issued to one of its employees. “For consent
to be valid, it must be both voluntary and informed,”
said Justice Fish. “The adoption of a doctrine of third
party consent in this country would imply that the
police could interfere with an individual’s privacy
interests on the basis of a consent that is not
voluntarily given by the rights holder, and not
necessarily based on sufficient information in his or
her hands to make a meaningful choice.” The
majority rejected the notion that the school (a third
party) could validly consent to a search or otherwise
waive a constitutional protection on behalf of
another (the accused).

Admissibility - s. 24(2)
A six member majority
admitted the evidence.
The officer did not act
negligently or in bad
faith. The case law governing privacy expectations in
work computers was still unsettled at the time. The
officer believed, “erroneously but understandably,
that he had the power to search without a warrant.”
The Charter breach was therefore not egregious or
high on the scale of seriousness. The accused had a
diminished, but subsisting expectation of privacy
and the evidence was discoverable - the police had
reasonable grounds to obtain a warrant. Finally, the
laptop, mirror image of its hard drive, and CD
containing the temporary Internet files were all
highly reliable and probative physical evidence and
their exclusion would have a marked negative

PAGE 11

Volume 12 Issue 6 - November/December 2012
impact on the truth-seeking function of the criminal
trial process. The admission of the evidence would
not bring the administration of justice into disrepute.
The Crown’s appeal was allowed, the Ontario Court
of Appeal’s exclusionary ruling set aside and a new
trial was ordered.

A Lone Dissent on Admissibility
Justice Abella, although agreeing there
was a Charter breach, would have
excluded the CD containing the
temporary Internet files and the copy of
the hard drive. In her view, the detective had years
of experience investigating cyber-crime and failed to
follow established Charter jurisprudence which

made the breach serious. His exclusive reliance on
ownership to determine whether a warrant was
required was unreasonable and could not be relied
upon to establish good faith for the purposes of s.
24(2).
Moreover, there were no exigent circumstances or
other legitimate reasons for police to proceed
without a warrant. Rather, the detective had ample
time to obtain a warrant and reasonable grounds to
do so. Plus, the search was highly intrusive
regardless of whether there was a diminished
expectation of privacy. Finally, the importance of the
reliable evidence in this case was speculative at
best.
Complete case available at www.scc-csc.gc.ca

R. v. Cole, 2012 SCC 53 ADMISSIBILITY/EXCLUSION GRID
Court Level
Evidence
Laptop
(+ mirror image of hard drive)
CD 1
(nude photographs)
CD 2
(temporary Internet files)
Outcome

Ontario

Ontario Superior
Court of Justice

Ontario Court of
Appeal (3:0)

Supreme Court of
Canada (6:1)

Court of Justice

Excluded

Admitted

Excluded

Admitted

(s. 24(2)

(no breach)

(s. 24(2)

(s. 24(2))

Excluded

Admitted

Admitted

(s. 24(2)

(no breach)

(no breach)

Admissibility
not challenged

Excluded

Admitted

Excluded

Admitted

(s. 24(2)

(no breach)

(s. 24(2)

(s. 24(2))

Acquitted

New trial

New trial

New trial

“Computers that are reasonably used for personal purposes
— whether found in the workplace or the home — contain
information that is meaningful, intimate, and touching on the
user’s biographical core. Vis-à-vis the state, everyone in
Canada is constitutionally entitled to expect privacy in
personal information of this kind.”
Justice Fish in R. v. Cole, 2012 SCC 53 at para. 2
PAGE 12

Volume 12 Issue 6 - November/December 2012

STAY UPHELD FOR
EXTRAJUDICIAL PUNISHMENT
R. v. Bellusci, 2012 SCC 44
The accused, a prisoner, was being
transported from a courthouse to a
penitentiary in a van driven by a
guard. He was chained, shackled and
handcuffed. When he became
abusive, insulting and crude, the guard disclosed to
other prisoners in the van that the accused was a
rapist, thereby placing him in danger. The accused,
in response, threatened to rape the guard’s wife and
children. As the guard opened the cell door on the
van, the accused forced the door open, injuring the
guard. The guard then assaulted the accused and
injured him while he was chained, handcuffed and
shackled in a secure cell in the van. The accused’s
injuries included imprints of wire mesh with
petechiae, deformation of the left forearm, and
bumps on his head and neck. He stayed overnight
for observation in the prison infirmary. As a result of
the incident, the accused was
petechiae:
charged with assault causing tiny
purple or red
bodily harm, assaulting a peace spots on the skin
from
officer and intimidation of a justice resulting
hemorrhages
under the skin's
system participant.
surface.

Quebec Court
The accused was acquitted of both assault
charges, the judge having been left with a
reasonable doubt about guilt. But he was
found guilty on the intimidation charge by
threatening to sexually assault the guard’s wife and
children. The judge, however, also concluded that
the accused’s s. 7 Charter rights had been breached.
After considering other remedies, such as a
reduction in sentence and the possibility of legal or
disciplinary proceedings against the guard, a stay of
proceedings was entered under s. 24(1). In the
judge’s view, the prison guard had recklessly
provoked the accused to threaten him and then, in
response to the threats, grievously assaulted and
unlawfully punished the accused while he was
chained, shackled and handcuffed. The disclosure to
the other prisoners that the accused was a sex
offender jeopardized his personal safety while
imprisoned. The accused’s threats, however

reprehensible, would then likely not have been
made but for the guard’s unjustifiable disclosure. The
guard’s behaviour in administering the unlawful
extrajudicial punishment would shock the public
and a stay of proceedings was the only appropriate
remedy.

Quebec Court of Appeal
On Crown appeal the stay of
proceedings was quashed and the
matter was remitted back for trial.
The Quebec Court of Appeal
found the trial judge committed a reviewable error
by overlooking the “non sequitur”
sequitur:
between the state misconduct and non
it does not
follow; an
the stay of proceedings and failed
inference or
to consider the availability of less conclusion that
does not follow
drastic remedies.
from the

Supreme Court of Canada

premises or
evidence

On the accused’s appeal,
the Supreme Court of
Canada reinstated the stay
of proceedings. It found
the trial judge had
correctly identified and
applied the proper principles of law. The accused
was revengefully attacked by a state agent while
chained, handcuffed, shackled and confined to his
cell in a secure prison van. In addition, his injuries
were not trivial. The judge was also alive to the
difficult position of prison guards, which could not
justify the disclosure. He was also troubled by the
further tarnishing of the justice system when other
prison guards showed reticent and “sclerotic
solidarity” in their testimony. “Having found that [the
accused] had been provoked and subjected by a
state actor to intolerable physical and psychological
abuse, it was open to the trial judge to decline to
enter a conviction against him,” said Justice Fish, in
delivering the unanimous seven member judgement.
Furthermore, the trial judge did consider alternative
remedies. He carefully and correctly considered all
the relevant principles and, in finding no other
remedies appropriate, balanced the competing
interests at play including the difficult position of
prison guards, the importance to the justice system

PAGE 13

Volume 12 Issue 6 - November/December 2012
of ensuring their protection, the seriousness of the
charges against the accused, the integrity of the
justice system, and the nature and gravity of the
Charter violation. Although Justice Fish may have
granted a lesser remedy himself, trial judges are
vested with a broad discretion under s. 24(1) and
appellate intervention was unwarranted in this

case. As he noted, it is not the role of appellate
courts to simply substitute their own exercise of
discretion for that of a trial judge just because they
would have granted a more generous or more
limited remedy.
Complete case available at www.scc-csc.gc.ca

Other cases where stays were granted as a remedy for mistreatment by law enforcement officers

‣ Possession for the purposes of trafficking.
‣

‣

‣

‣

The police tasered an accused who was handcuffed,
fully restrained and compliant. - R. v.Walcott (2008),
57 C.R. (6th) 223 (Ont. S.C.J.).
Driving while disqualified. The police used
excessive force in arresting the accused, striking his
head several times against a vehicle, causing
permanent injuries requiring surgery. - R. v. Maskell,
2011 ABPC 176, 512 A.R. 372.
Assaulting police and resisting arrest. Five
police officers pepper-sprayed and kneed the
accused several times; the accused struck his head
on the concrete and suffered a broken jaw. The trial
judge was also concerned that police testimony was
untruthful. - R. v. Jackson, 2011 ONCJ 228, 235 C.R.R.
(2d) 289.
Impaired driving and dangerous driving.
Although provoked by unruly behaviour, foul
language, and the “resistive stance” of the accused ,
the police used excessive force in striking the
accused while he was handcuffed and presented no
threat. - R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th)
345.
Breaking and entering and possession of
concealed weapons and housebreaking
tools. The police used excessive force in tasering

PATTING DOWN & SECURING
MOTORIST IN POLICE CAR NOT
REASONABLY NECESSARY
R. v. Aucoin, 2012 SCC 66
The 19-year-old accused was stopped
driving shortly after midnight in a
downtown area during a busy Apple
Blossom weekend. The licence plate
on his car was registered to another
vehicle. While speaking to the accused, who was a
newly licensed driver and prohibited from having
any alcohol in his body, the officer smelled alcohol

‣

‣

‣

‣

the accused, who was 15 years old, during a strip
search at the police station. - R. v. J.W., 2006 ABPC
216, 398 A.R. 374.
Failing to comply with a condition of
release (abstaining from alcohol). The police
conducted an unreasonable strip search and tasered
the accused despite the situation being under
control, causing bruises, abrasions, burn marks, a
broken tooth and bruises to the face. - R. v. R.L.F.,
2005 ABPC 28, 373 A.R. 114.
Assaulting a peace officer. Despite the violent
behaviour of the accused, the police used excessive
force in pepper-spraying him while he was
handcuffed and lying face down on the floor with a
foot on his head. - R. v.Wiscombe and Tenenbein, 2003
BCPC 418 (CanLII).
Dangerous driving and refusing a
breathalyzer test. The accused was forced to
remain seated in his own excrement longer than
necessary, denied proper clean-up facilities, subjected
to rude and ridiculing remarks, and arbitrarily and
unnecessarily detained. - R. v. Murphy (2001), 29
M.V.R. (4th) 50 (Sask. Prov. Ct.).
Impaired driving. The accused was handcuffed
for no reason and pepper-sprayed in the eyes for
insulting a police officer. - R. v. Spannier, 1996 CanLII
978 (B.C.S.C.).

and demanded a roadside screening test. The
accused was asked to step out of his vehicle and go
back to the police car for the screening test. He sat
on the rear seat with the door open and his legs and
feet outside. Although the screening test indicated a
result below the legal limit (20mg%), the accused
was still in breach of the zero alcohol tolerance for a
newly licenced driver. The officer decided to issue
the accused a ticket for having alcohol in his system,
so he wanted to put him in the back seat of the
police car while he wrote the ticket in the front seat.
The accused’s vehicle was going to be impounded
and the officer was concerned he could walk away
and disappear into a crowd while he was writing the

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Volume 12 Issue 6 - November/December 2012
ticket. The officer did a safety pat-down and felt
something hard and square in the accused’s left front
pocket. When asked what it was, the accused said it
was his wallet. The officer accepted this answer and
continued the pat-down, feeling something soft in
the accused’s right front pocket. When asked what it
was the accused replied ecstasy. He was arrested
and two small baggies containing 100 green pills
(which later turned out not to be a controlled
substance) and eight bags of cocaine were removed
from his pocket. As this was taking place two other
police officers arrived in separate vehicles. The
accused was subsequently charged with cocaine
possession for the purpose of trafficking (PPT) as well
as PPT a substance held out to be ecstasy.

weapons. Justice Beveridge, however, in a dissenting
opinion was of the view that the accused’s s. 8
Charter rights had been breached. In his opinion, the
officer’s subjective belief that the accused might
walk away was not objectively justified. Nor was the
officer justified in placing the accused in the back of
the police car or patting him down - there was no
reason to believe he posed a safety risk. Justice
Beveridge also found the accused had been subject
to an unlawful detention and that his s. 10(b) rights
were violated. He would have allowed the accused’s
appeal, set aside the conviction and entered an
acquittal.

New Brunswick Provincial Court

The accused again
appealed, this time
to the Supreme
Court of Canada
arguing that his s. 8 rights had been breached by the
pat-down search. And the Court agreed. All seven
judges hearing the case concluded that the police
were not justified in searching the accused in this
case. But they were divided on whether the
evidence should have been admitted.

The trial judge found the officer’s actions
were reasonable and did not breach s. 8
of the Charter given the very unusual
circumstances that night. First, it was late
at night and there was no natural lighting in the area.
The officer needed the police car light to see what
he was doing as he wrote out the ticket. Second, the
accused had alcohol in his body and the officer
could not allow him to return to the car where he
would continue the offence of being a newly
licensed driver while prohibited from having any
alcohol in his system. Third, the annual Apple
Blossom festival was underway and there were many
people around that night. The officer was concerned
the accused, if left alone on the street, could have
just walked away. In light of these factors, the judge
ruled that it was reasonable for the officer to seat the
accused in the police car while the ticket was
written and to pat him down in the process. There
were no Charter breaches, the evidence was
admitted and the accused was convicted of PPT
cocaine. He was sentenced to two years in prison.

Nova Scotia Court of Appeal
A majority of the Nova Scotia
Court of Appeal upheld the trial
judge’s ruling, finding the pat-down
search lawful. In the majority’s
view, it was reasonable for the officer to detain the
accused in the rear of the police car and also
reasonable for the officer to pat him down for

Supreme Court of Canada

The Search
Justice Moldaver, writing for five members of the
Court, first noted that this was not an investigative
detention case. Rather than being an investigatory
detention for a criminal matter, this was a detention
for two relatively minor traffic infractions under
Nova Scotia’s Motor Vehicle Act. The accused was
initially detained because his licence plate was
registered to a different vehicle, then further
detained because he was a newly licensed driver
with alcohol in his body. The nature and extent of
his detention, however, was then altered in a
“dramatic way” when he was patted down and
secured in the back of the police car. This action
increased the restrictions on the accused’s liberty
interests and intruded into his privacy interest.
In Justice Moldaver’s view, the case was not about
whether the officer had the authority to detain the
accused in the rear of the police car but whether he
was justified in exercising it as he did. In other
words, was it reasonably necessary, in the particular

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Volume 12 Issue 6 - November/December 2012
circumstances of the case, to place the accused in
the backseat knowing he would be patted-down? In
his opinion it was not. Securing the accused in the
police car - which fundamentally changed the
nature of his ongoing detention - was not reasonably
necessary in the totality of the circumstances. The
officer had other options, or reasonable means, by
which he could have addressed his concerns that the
accused would disappear into the crowd. Backup
was close at hand, as evidenced by the arrival of
other officers while the accused was being searched,
and the officer could have “waited an extra minute
or two to do the paper work, without impinging on
the [accused’s] right to be released as soon as
practicable.” Justice Moldaver stated:
Without wishing to second-guess the actions of
the police and recognizing, as I do, that the
police are often required to make split-second
decisions in fluid and potentially dangerous
situations, I am nonetheless of the view that [the
officer’s] actions, though carried out in good
faith, were not reasonably necessary. [para. 40]

of a police car. In such cases, where the facts
support a finding of reasonable necessity, there is no
further balancing needed between an individual’s
right to be free from state interference and the
public’s interest in effective law enforcement, a
position posited by the minority.

A Different View by Two
Justices Lebel and Fish agreed with the
majority that the search was
unreasonable. In their view it was not
reasonably necessary to detain the
accused in the rear of the police car. The detention
was unlawful and therefore arbitrary. Instead, the
accused could have stood on the sidewalk to await
his ticket:
Generally speaking, detaining an individual in
the locked rear seat of a police car in order to
write out a ticket for a motor vehicle infraction
will rarely strike an appropriate balance between
the public’s interest in effective law enforcement
and its interest in upholding the right of
individuals to be free from state interference.
Had there been reasonable grounds to believe
that [the accused] might flee, with the result that
the detention could be said to be necessary, the
overall reasonableness of the decision to detain
would then need to be assessed in light of the
totality of the circumstances, including the
nature and extent of the interference with liberty
and the importance of the public purpose served
by that interference. The seriousness of the
offence is therefore a relevant consideration. In
my view, where the public purpose served by
the interference is the enforcement of a
regulatory offence and the interference involves
the police assuming complete control over an
individual’s movements, the balance will
generally not favour recognizing a police power.
[references omitted, para. 86]

Detaining the accused in the back of the police car
was an unlawful detention since there were other
reasonable means by which the officer could have
addressed his concern that the accused might flee.
But for that decision - to place him in the rear of the
police car - there would have been no pat-down
search. Since the search was warrantless it was
presumptively unreasonable, which had not been
rebutted by the Crown, breaching the accused’s s. 8
Charter rights.

s. 24(2) Charter
The majority ruled the evidence admissible. The
officer acted in good faith. Although the impact on
the accused’s privacy interests was significant,
society’s interest in having the case tried on its merits
tipped the scales in favour of admission. The
accused’s appeal was dismissed.

Not An Outright Ban
The majority was clear, however, that there may be
cases (although rare) where it may be reasonably
necessary to secure a motorist detained for a
straightforward motor vehicle infraction in the rear

Since the detention was unlawful the protective patdown search was unreasonable. But even if the
detention was lawful the search would nonetheless
be unreasonable. There were no reasonable grounds
for the officer to believe his safety of the safety of
others was as risk. Plus, the search exceeded the
scope of one that was reasonably designed to locate
weapons. The item the officer felt was soft and could

PAGE 16

Volume 12 Issue 6 - November/December 2012
not justify a concern for officer safety and the
questioning that followed it. In the minority’s
opinion, the evidence should be excluded under s.
24(2). The Charter-infringing conduct was serious
and the impact on the accused’s Charter protected
interests was significant.
Complete case available at www.scc-csc.gc.ca

LOW VIRAL COUNT & CONDOM
USE NEGATES REALISTIC
POSSIBILITY OF HIV
TRANSMISSION
R. v. Mabior, 2012 SCC 47
The accused had sex with nine
complainants but did not tell them he
was HIV-positive. On one occasion
he said that he had no sexually
transmitted diseases. On some
occasions he wore condoms while other times he
did not. Sometimes the condoms broke or were
removed, and in some cases the precise nature of
the protections taken was unclear. The complainants
all consented to sexual intercourse with the accused
but said that they would not have consented if they
had known he was HIV-positive. None of them
contracted HIV. The accused was charged with 10
counts of aggravated sexual assault (and other
related offences) involving the nine complainants
based on his failure to disclose to them that he was
HIV-positive.

Manitoba Court of Queen’s Bench
The accused called evidence that he was
under treatment and not infectious, or
presented only a low risk of infection. The
judge took the approach that any risk of
HIV transmission, however small, constituted
“significant risk of serious bodily harm.” The judge
entered convictions on six of the aggravated sexual
assault counts where it was established that his viral
load was not undetectable or no condom was used.
He acquitted the accused on the other four counts
finding that sexual intercourse using a condom when
viral loads were undetectable did not place a sexual
partner at “significant risk of serious bodily harm.”

Manitoba Court of Appeal
The accused’s appeal of his six
convictions resulted in four of them
being overturned and acquittals
being entered. The Manitoba Court
of Appeal held that “significant risk” connoted a
high risk of HIV transmission. In applying this high
risk approach, the Court of Appeal held that condom
use reduced the risk of HIV transmission “below the
level of significance.” In its view, either low viral
loads or condom use could negate the significant
risk required for a conviction. The remaining two
convictions were upheld.

Supreme Court of Canada
The Crown appealed the four
acquittals to the Supreme
Court of Canada. In an
unanimous seven member
opinion, the Supreme Court
ruled that a person may be found guilty of
aggravated sexual assault (s. 273 of the Criminal
Code) if they fail to disclose their HIV-positive status
before intercourse and there is a realistic possibility
that HIV will be transmitted. However, the Supreme
Court clarified that if the HIV-positive person has a
low viral count as a result of treatment and there is
condom protection used, the threshold of a realistic
possibility of transmission is not met and an
acquittal will follow.

Fraud Vitiating Consent
Under s. 265 of the Criminal Code sex without
consent is sexual assault. In R. v. Cuerrier, [1998] 2
S.C.R. 371 the Supreme Court had earlier
established that failure to advise a partner of one’s
HIV status may constitute fraud vitiating consent.
Although HIV can be controlled by medication, it is
a serious and life-endangering incurable chronic
infection that, if untreated, can result in death. Nondisclosure can amount to fraud because both its
elements are established:

(1) a dishonest act: misrepresentation or failing to

PAGE 17

disclose HIV status; and

Volume 12 Issue 6 - November/December 2012

“Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have
consented had he or she known the accused was HIV-positive, and where sexual contact poses
a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of
serious bodily harm is established by a realistic possibility of transmission of HIV.”
[A] “significant risk of serious bodily harm”
connotes a position between the extremes of no
risk (the trial judge’s test) and “high risk’ (the
Court of Appeal’s test). Where there is a realistic
possibility of transmission of HIV, a significant
risk of serious bodily harm is established, and
the deprivation element of the Cuerrier test is
met. [para. 84]

BY THE BOOK:
Assault & Sexual Assault Provisions:
Criminal Code
s. 265 (1) A person commits an assault when (a)
without the consent of another person, he
applies force intentionally to that other
person, directly or indirectly; ...
(2) This section applies to all forms of assault, including
sexual assault . . . and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained

She then noted the following considerations in
finding that the requirement of “significant risk of
serious bodily harm” should be read as requiring
disclosure of HIV status if there is a realistic
possibility of HIV transmission:
•

where the complainant submits or does not resist by reason
of ... (c) fraud; ...
s. 273 (1) Every one commits an aggravated sexual assault

•

who, in committing a sexual assault, wounds, maims,
disfigures or endangers the life of the complainant.

(2) a deprivation : denying the complainant
knowledge which would have caused her to
refuse sexual relations that exposed her to a
significant risk of serious bodily harm.
Furthermore, since HIV poses a risk of serious
bodily harm, the failure to advise a sexual partner of
one’s HIV status may lead to a conviction for
aggravated sexual assault under s. 273(1) of the
Criminal Code, which attracts a maximum sentence
of life imprisonment.
So just when does non-disclosure of HIV status
amount to fraud vitiating consent for the purposes of
sexual assault? When sexual relations with an HIVpositive person pose a “significant risk of serious
bodily harm.” In defining what a significant risk of
serious bodily harm is, Chief Justice McLachlin
stated:

•

•

A “significant risk of serious bodily harm”
cannot mean any risk, however small. This
would set the threshold for criminal conduct
too low.
A standard of “high” risk does not give
adequate weight to the nature of the harm
involved in HIV transmission. This would set
the threshold for criminal conduct too high and
might condone irresponsible and reprehensible
conduct.
There is an inverse relationship between the
degree of harm and risk of transmission. The
more serious the nature of the harm, the lower
the probability of transmission need be to
amount to a “significant risk of serious bodily
harm.”
A standard of a realistic possibility of HIV
transmission avoids setting the bar for criminal
conviction too high or too low and strikes the
appropriate balance between the complainant’s
interest in autonomy and equality and the need
to prevent over-extension of criminal sanctions.

If there is no realistic possibility of HIV transmission,
failure to disclose that one has HIV will not
constitute fraud vitiating consent to sex under s.
265(3)(c).

PAGE 18

Volume 12 Issue 6 - November/December 2012

Realistic Possibility of HIV Transmission?
Just when does the non-disclosure of HIV-positive
status not entail a realistic possibility of HIV
transmission? The Supreme Court found that there
will not be a realistic possibility of HIV transmission
if (1) the accused’s viral load at the time of sexual
relations was low and (2) condom protection was
used.

Low viral count (as opposed to undetectable): The
transmissibility of HIV is proportional to the viral
load (the quantity of HIV copies in the blood).
Antiretroviral therapy can shrink the viral load
rapidly, but does not eliminate it altogether. Thus, a
sexual partner can still be exposed to a realistic
possibility of transmission.
Condom use: Although the Supreme Court found it
“undisputed that HIV does not pass through good
quality male or female latex condoms” it also noted
that “condom use is not fail-safe, due to the
possibility of condom failure and human error.”
Thus, condom protection alone does not preclude a
realistic possibility of transmission.
The risk of transmission resulting from the combined
effect of condom use and a low viral load is
extremely low such that the risk is reduced to a
speculative possibility rather than a realistic
possibility. Since the requirement of significant risk
of serious bodily harm will not be met with a low
viral count and condom use, there is no deprivation
and failure to disclose HIV status will not constitute
fraud vitiating consent under s. 265(3)(c). Chief
Justice McLachlin concluded:
To summarize, to obtain a conviction under ss.
265(3)(c) and 273, the Crown must show that
the complainant’s consent to sexual intercourse
was vitiated by the accused’s fraud as to his HIV
status. Failure to disclose (the dishonest act)
amounts to fraud where the complainant would
not have consented had he or she known the
accused was HIV-positive, and where sexual
contact poses a significant risk of or causes
actual serious bodily harm (deprivation).
A
significant risk of serious bodily harm is
established by a realistic possibility of
transmission of HIV. On the evidence before us,
a realistic possibility of transmission is negated
by evidence that the accused’s viral load was

low at the time of intercourse and that condom
protection was used.
However, the general
proposition that a low viral load combined with
condom use negates a realistic possibility of
transmission of HIV does not preclude the
common law from adapting to future advances
in treatment and to circumstances where risk
factors other than those considered in the
present case are at play.
The usual rules of evidence and proof apply.
The Crown bears the burden of establishing the
elements of the offence — a dishonest act and
deprivation — beyond a reasonable doubt.
Where the Crown has made a prima facie case
of deception and deprivation as described in
these reasons, a tactical burden may fall on the
accused to raise a reasonable doubt, by calling
evidence that he had a low viral load at the time
and that condom protection was used. [paras.
104-105]

Results
As a consequence of the Supreme Court’s analysis,
three of the four convictions entered by the trial
judge were maintained. In three of the cases the
accused had a low viral load at the time of
intercourse but did not use a condom. In the fourth
case where a conviction was registered, the accused
had a low viral load and used a condom. This
negated a realistic possibility of transmission and
therefore did not expose the complainant to a
significant risk of serious bodily harm. An acquittal
was entered in this one case.
Complete case available at www.scc-csc.gc.ca

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Volume 12 Issue 6 - November/December 2012

DELAY JUSTIFIED:
DETENTION NOT ARBITRARY
R. v. Viszlai, 2012 BCCA 442
A detective called another police
detachment to arrest the accused, a
Scout leader, at a Scout jamboree for
some previous sexual offences. The
detective asked that the accused be
held in custody overnight so she could interview
him the following morning. He was taken into
custody at 7:03 pm and advised of his right to
counsel. He was driven to the police station, booked
and spoke to legal aid in private at 7:52 am. He told
the arresting officer that he was satisfied with the
advice he had received. The following morning the
investigating detective drove from Victoria to
Nanaimo, then flew to Sechelt and interviewed the
accused from 9:50 am to 11:50 am. Before starting
the interview, the detective advised the accused of
the reason for his arrest, the right to counsel and that
he was not obliged to say anything. He admitted to
sexually assaulting two victims and wrote out an
apology to them. The accused was then released on
a Promise to Appear (PTA) at 12:50 pm, about 18
hours after he was arrested.

British Columbia Supreme Court
The accused argued he was arbitrarily
detained because he was held overnight
to be interviewed the following morning.
In his view, he should have been released
by police sooner or taken before a JJP for a hearing.
The judge rejected this, finding that the accused had
been lawfully arrested and detained. The arrest was
not planned and the delay in taking a statement from
the accused was justified. “In the circumstances, [the
police] actions cannot be regarded as a deliberate
attempt to circumvent the rights of the accused to be
released as soon as practicable,” said the judge. The
accused’s statement was admissible and he was
convicted by a jury of sex offences.

became unlawful because he should have been
released as soon as practicable by either police
(under ss. 497 and 498 of the Criminal Code) or
appear before a JJP without unreasonable delay.
After all, he claimed, the police released him on a
PTA at the end of the interview which evidenced
that he was not considered a public risk. He
suggested the police could not detain an arrestee for
the purpose of facilitating an interview.
This argument, however, was rejected by the Court
of Appeal. Both ss. 497(1.1) and 498(1.1) contain a
provision that authorizes the continued detention of
an arrestee when there are reasonable grounds to
believe it is necessary in the public interest to secure
and preserve evidence of or relating to the offence.
This evidence includes a statement. “The police are
not required to release a person who has been
lawfully arrested when there are reasonable grounds
to believe that the continued detention of that
person is needed for the purpose of obtaining
evidence,” said Justice Frankel. “Nothing in the
language of the exception differentiates one
investigative technique from another, nor does it
differentiate one form of evidence from another.”
Nor was it necessary for the detective to have
another officer in Sechelt do a surrogate interview.
The detective was responsible for the investigation,
was a member of a specialized investigative unit,
and took expeditious steps to travel to Sechelt. The
15 hour delay in taking a statement after arrest in
these circumstances did not render the detention
arbitrary. The police acted reasonably.
The accused’s appeal was granted on other grounds.
Complete case available at www.courts.gov.bc.ca

POINTS TO PONDER - Viszlai Case
• Whether the delay in releasing someone amounts to an
arbitrary detention is fact driven. In other words, it
depends on the circumstances.
• This case does not mean that you can always detain
someone for 15 hrs before taking a statement. The facts
matter.
• Be prepared to explain the delay in interviewing.

British Columbia Court of Appeal
The accused again argued he was
arbitrarily detained, suggesting his
continued post-arrest detention

• A statement is considered evidence for the exceptions
to Criminal Code release provisions when it is
necessary in the public interest to “secure or preserve
evidence of or relating to the offence.”

PAGE 20

Volume 12 Issue 6 - November/December 2012

REMAND DID NOT RENEW
RIGHT TO COUNSEL
R. v. Bhander, 2012 BCCA
Following a shooting, the accused
was arrested for one count of murder
and one count of attempted murder.
He was deliberately arrested on a
Friday to be held in custody over the
weekend. He was advised of his right to counsel,
right to silence and transported to the police station.
He spoke to counsel on the phone and also had a 40
minute face-to-face meeting at the police station
with a lawyer. Counsel told police he wanted to
speak again with the accused if charges were laid.
Police asked the accused if he had received and
understood the legal advice provided and he replied
in the affirmative. Police tried to conduct a short
interview with the accused, but he repeatedly
invoked his right to silence and said any questions
should go to his lawyer.
On the following day (Saturday), the accused was
charged only with first degree murder. His lawyer
participated in the remand hearing and asked that
the accused go to the Surrey Pre-trial Centre pending
his court appearance on Monday. The JJP found he
had no jurisdiction to direct the location of the
accused’s custody over the weekend but did make a
recommendation that he be held at the Pre-Trial
Centre. The police, however, made no effort to
comply with the recommendation. Shortly after the
remand hearing the accused was interviewed by
police for 4 hours and 15 minutes. His lawyer’s
articling student attended at the police station while
the interview was in progress and asked to see the
accused so further legal advice could be provided,
but police refused his request.
Then on Sunday, the accused’s counsel again tried to
arrange a meeting with the accused by leaving a
message with police but he did not receive a call
back. The accused also asked the jail guard if he
could call his lawyer to “make sure he’s at court
tomorrow” but this was not facilitated. On Sunday
evening the accused was again interviewed, this
time for about 2 ½ hours. He initially exercised his
right to silence but then was shown some evidence,

including a set of keys found at the scene. He then
began to provide an account of the shooting,
admitting he had shot the deceased. Before the
confession the accused said, “And it’s going against
for what my lawyer told me to do, and stuff like that
right?”

British Columbia Supreme Court
The trial judge noted that the arrest was
made on Friday so police could
“optimize their ability to coordinate
r e s o u rc e s a n d u n d e r t a k e va r i o u s
investigative procedures” while the accused was in
custody. But he found no Charter violations and
admitted the confession. The accused was convicted
of second degree murder by a jury.

British Columbia Court of Appeal
The accused appealed, in part, that
the confession was obtained
following Charter breaches and
should be inadmissible under s.
24(2). These violations included:

s. 10(b): Change in Jeopardy
The accused asserted that when he was charged with
first degree murder and remanded in custody this
was an “objectively observable” change in jeopardy
requiring a renewed right to speak to a lawyer. But
the Court of Appeal disagreed. There was no change
in circumstances that required a further opportunity
to consult counsel. The accused had been arrested
for murder and attempted murder and charged with
first degree murder. This did not alter or elevate the
general nature of the jeopardy he faced. “The fact of
the remand order did not change [the accused’s]
jeopardy from that for which he was arrested,” said
Justice Saunders for the Court.

s. 10(b): New Non-Routine Procedure
The accused submitted he was subjected to a new
“non-routine” procedure when remanded which
required a renewed right to speak to a lawyer. But
the remand was not such a new “non-routine”

PAGE 21

Volume 12 Issue 6 - November/December 2012
procedure involving a detainee, like a polygraph
examination or participation in a line-up. His
detention expectations may have changed but this
did not support a renewed right to counsel.

•

s. 9 Charter: Arbitrary Detention
The accused said he was arbitrarily detained when
police continued to question him after the judicial
remand and made no attempt to move him to the
pre-trial centre as recommended by the JJP. The
Court of Appeal also rejected this submission. The
police did not violate any terms of the remand order
—it authorized further detention without specifying
the location for the detention. Plus, the accused’s
position regarding the investigation was the same
before as after the remand order. The remand order
itself did not trigger a fresh right to counsel.

From Police Observations
•

•

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

GROUNDS VIEWED
CUMULATIVELY PROVIDED
BASIS FOR WARRANT

•

R. v. Tran, 2012 BCCA 386
Police obtained a search warrant
based on information from two
unnamed neighbours, searches of
data banks kept by the police and
other government sources, and some
observations by police officers who attended the
area. The ITO included the following information:

•

•

•

•

Both told the police that no one resided at the
residence and that the blinds were always
closed.
One said that the house had been up for sale
two years previously and that when it did not
sell the owners did some renovations on the
place.
Both said that they detected an odour of
marihuana in the immediate vicinity of the
house.
One said that every night between 5 pm and 7
pm an Asian family consisting of a man,

A police officer drove to the residence on the
same day that the first neighbour contacted the
police and observed a vehicle parked in the
driveway. He found that the vehicle was
registered to a Thi Kim Vu whose residence was
listed as an apartment in Langley.
The police attended the house on a couple of
occasions and could smell an odour of
marihuana in the air. They checked the houses
on either side of the suspected residence and
confirmed that those houses did not contain
marihuana grow operations.
The police confirmed that the blinds on the
front of the house were closed, that there was a
lock box near the front door and that the
vehicle registered to Thi Kim Vu was parked by
the residence.

From Data Searches
•

•

From Neighbours

woman and two children arrived at the house
and stayed for only one or two hours.
One neighbour said that there was a lock box
on the front door that “had been there forever”
and that people used the garage to enter the
residence, not the front door.

•
•

PAGE 22

A registry search disclosed that the house was
registered to a Lan T. Vu. A further search
revealed that the account holder of Hydro
services was listed as Vu.
One of the two neighbours called to tell the
police that there was a vehicle at the residence
which attended daily. Motor vehicle records
indicated the licence plate’s owner was the
accused, who had the same Langley address as
Thi Kim Vu, the owner of the other vehicle seen
at the residence.
The accused had 2006 convictions in Alberta
for theft and production of marihuana.
Lan T. Vu was present at the residence in 2006
when Abbotsford police inspected the house.
The report showed that there was evidence of
“a previous grow operation but not enough to
lay charges.”

Volume 12 Issue 6 - November/December 2012
Police entered the property and found an indoor
marihuana grow operation.

“[A reasonable suspicion] must exist before
the opportunity to commit an offence is

British Columbia Supreme Court

provided.”

The trial judge found the individual
pieces of information were insufficient to
provide the necessary grounds for the
warrant’s issuance, but when considered
together did meet the reasonable grounds threshold
that the residence likely housed a grow op. The
judge stated:
While each of these pieces of information comes
with a caveat, the caveat sometimes amounting
to a significant reservation, and sometimes being
more in the nature of a quibble, nonetheless
each of them adds something to the grounds. In
my view, no single piece of information is
sufficient, however, considered in total they are
additive to the degree necessary for the
conclusion that an authorizing Judicial Justice of
the Peace could judicially assess them as
amounting to reasonable grounds, or in other
words, as providing a reasonable probability of
discovery of evidence of the suspected offence;
and in this case, that the residence likely housed
a grow-op

The accused was convicted of producing marihuana,
and possessing marihuana for the purpose of
trafficking.

British Columbia Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions on the ground that the
trial judge erred in concluding that
the search of the house was made
pursuant to a valid search warrant because it was not
properly supported by reasonable grounds. In his
view, the evidence obtained by executing the
warrant should have been excluded under s. 24(2).
But the Court of Appeal disagreed. Although the trial
judge acknowledged that each piece of information
on its own was not particularly strong, he examined
the evidence and applied the proper tests in
concluding reasonable grounds existed. The
accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

REASONABLE SUSPICION
TRIGGERS OPPORTUNITY TO
COMMIT CRIME
R. v. Gladue, 2012 ABCA 143
Police received a tip from a first time
informant with a criminal record that
a phone number was being used to
sell crack cocaine in a dial-a-dope
scheme. The police, without taking
steps to verify the tip, called the phone number to
arrange a cocaine purchase. An officer spoke to an
unidentified male and, to determine if he was a drug
dealer, asked him if he was “working” or “rolling”.
The male responded positively and asked “Who are
you?”. The officer replied “Johnny” and then the
male asked what he wanted. The officer asked if he
could get “four for a hundred” (meaning four halfgram pieces of crack cocaine for $100). The male
said it would cost $110, agreed to meet at a
specified location and sold the officer about two
grams of cocaine.

Alberta Court of Queen’s Bench
The accused pled guilty to trafficking in
cocaine but the judge entered a stay of
proceedings on the basis of entrapment.
He found the police did not have a
reasonable suspicion that the accused was already
engaged in criminal activity before they called the
dial-a-dope number. Police did not know him
personally nor was there evidence they were aware
of his name. Moreover, even during the call, the
police did not develop a reasonable suspicion
before providing him with an opportunity to commit
a crime. The words “rolling” or “working” were
capable of an interpretation that did not necessarily
suggest a drug interaction. Plus, there was no expert
evidence on drug trafficking terminology. In the
judge’s view, the knowledge gained during the
phone call was “too imprecise and too vague to
bolster the already insufficient suspicion of the
police prior to the call.” An acquittal was entered.

PAGE 23

Volume 12 Issue 6 - November/December 2012

“Entrapment may be found when ‘the authorities provide a person with an opportunity to
commit an offence without acting on a reasonable suspicion that this person is already engaged
in criminal activity or pursuant to a bona fide inquiry’. The bona fide inquiry exception permits
the police to present an opportunity to commit a crime to a person associated with a location
where it is reasonably suspected that criminal activity is taking place.”

Alberta Court of Appeal

“rolling” or “working”, enough to elevate the
circumstances beyond mere suspicion.

The Crown argued that the trial
judge misinterpreted the test for
entrapment, applied too high a
standard for reasonable suspicion
and failed to find that the police were engaged in a
bona fide investigation. The Court of Appeal first
described the test for entrapment:
Entrapment may be found when “the authorities
provide a person with an opportunity to commit
an offence without acting on a reasonable
suspicion that this person is already engaged in
criminal activity or pursuant to a bona fide
inquiry”. The bona fide inquiry exception
permits the police to present an opportunity to
commit a crime to a person associated with a
location where it is reasonably suspected that
criminal activity is taking place. Although a
reasonable suspicion that a person is engaged in
criminal activity can be developed during the
course of an investigation of a tip, it must exist
before the opportunity to commit an offence is
provided. [references omitted, para. 9]

The Court of Appeal also rejected the Crown’s
submission that the police were engaged in a bona
fide investigation of a unique digital location, similar
in concept to a geographic location, in calling the
dial-a-doper number. “Assuming, without deciding,
that a phone can be equated to a specific physical
location, the requirement for a reasonable suspicion
must still be met,” said Justice Costigan. Since the
reasonable suspicion requirement was not met, the
Crown’s appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

Supreme Court of Canada
The Crown sought leave to appeal
the Alberta Court of Appeal’s
judgement before the Supreme
Court of Canada. The Crown’s
application, however, was dismissed by a panel of
three Supreme Court justices without reasons. R. v.
Gladue, [2012] S.C.C.A. No. 305

In addition, the court noted that it was not necessary
that the identity of the person be pre-established.
The police can acquire a reasonable suspicion of a
person without knowing who they are.
In this case, the officer provided the accused with an
opportunity to commit a crime during the initial
phone call when he asked if he could get “four for a
hundred”. It was at this point - before the
opportunity was provided - that a reasonable
suspicion the accused was engaged in criminal
activity had to exist. The “unverified tip, received
from a first time informant with a criminal record,
was not enough to raise a reasonable suspicion,”
said Justice Costigan for the Court of Appeal. Nor
was the conversation, with the use of the words

POLICE DUTY TO INFORM OF
RIGHTS: DETAINEE’S DUTY TO
PURSUE THEM
R. v. MacGregor, 2012 NSCA 18
Sometime after midnight the accused
was stopped at a police checkpoint.
When an officer noted a smell of
alcohol the accused said he had a
couple of drinks earlier in the
evening. He also said that he had used mouthwash
prior to leaving his office, about 15 to 30 minutes
before being stopped. The officer believed the
accused had alcohol in his body and gave the

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Volume 12 Issue 6 - November/December 2012
approved screening device (ASD) demand. The
accused failed the ASD and the breathalyzer
demand followed. The accused was then arrested for
impaired driving and informed of his right to
counsel. He said that he understood his rights and
when asked if he would like to speak to counsel,
said, “Not right now, thank you”. The officer then
said:
I’ll let you know that if you change your mind at
anytime tonight during this whole process, that
you want to talk to a lawyer, just let myself or
any other officer know, and we will make sure
that you get in contact with a lawyer, okay?

The accused responded “Yeah.” When the officer
provided information about legal aid the accused
indicated he understood. The standard police
caution was also given. At the police station the
accused did not ask to speak to a lawyer nor was he
asked if he wanted to consult one. He was
introduced to a breath technician and provided two
breath samples above the legal limit. He was
charged with impaired driving and over 80mg%.

Nova Scotia Provincial Court
The accused testified that he didn’t want
to speak to a lawyer at the roadside
because he didn’t have a cell phone and
he was not offered one, nor was there
any privacy at that point. He said he intended to call
a lawyer when he arrived at the police station,
expecting that he would be given an opportunity to
do so. But he never told the police this because he
was in an unfamiliar setting and was merely doing
what he was asked to do. Had he been offered a
telephone, he claimed he would have called a
lawyer. The trial judge concluded that the accused’s
response “not right now” was equivocal, that he had
not waived his right to counsel and that the police
were obligated to either provide him with a
reasonable opportunity to call a lawyer or obtain a
clear and unequivocal waiver from him. Since the
police did neither, s. 10(b) of the Charter was
breached and the evidence of the breathalyzer
results were excluded under s. 24(2). The accused
was acquitted.

Nova Scotia Supreme Court
On appeal by Crown, a Nova Scotia
Supreme Court judge found that the “not
right now” response was an adequate
waiver of the accused’s right to counsel.
In his view, even though the accused understood his
rights and intended to call a lawyer, there was no
evidence that anything interfered with his
opportunity to ask to speak to counsel before he
submitted to breathalyzer testing. He further held
that there was no additional obligation upon the
police to reiterate the offer of contacting counsel at
the police station. In the alternative, the appeal
judge opined that the breath test results were
admissible under s. 24(2). He ordered the case sent
back to the trial judge.

Nova Scotia Court of Appeal
The accused then challenged the
appeal judge’s ruling to the Nova
Scotia Court of Appeal.

s. 10(b) Charter
Section 10(b) provides that “Everyone has the right
on arrest or detention ... (b) to retain and instruct
counsel without delay and to be informed of that
right.” This imposes two duties on the police, Justice
Bryson on behalf of the Court of Appeal said:
There are two elements to a s. 10(b) right. The
first is informational and the second
implementational. In other words, a detained
person has to be properly informed about his or
her rights. The second element requires that the
detained person has to be given an opportunity
to consult a lawyer if he or she chooses to do so.
[para. 23]

Informational Duty
The Court of Appeal agreed with the lower courts
that the accused’s response “not right now” was
equivocal. However, unlike the trial judge’s
conclusion that the police had to either obtain a
waiver or reiterate the right to speak to counsel at
the police station, Justice Bryson was of the view
that police had properly discharged their duties.
“The police certainly had no obligation to seek and

PAGE 25

Volume 12 Issue 6 - November/December 2012
obtain a waiver from [the accused],” he said. “Their
obligation was to convey to [the accused] that his
right to counsel was ongoing. This is precisely what
they did.” The police reply to the accused's “not
right now” was appropriate and could not be
clearer:
•
•
•

•

It recognized that the accused did not want to call
a lawyer then and there;
It recognized that he may wish to call a lawyer
later on that evening “during the process”;
It confirmed that the accused’s right to consult
counsel was ongoing through the process, and
was not limited to “then and there” in the police
cruiser;
It told the accused how to implement his right to
consult counsel. He need only advise police at
any time during the process. Police would then
ensure that he got in contact with a lawyer.

NO HARD & FAST RULES FOR
INVESTIGATIVE ARTICULABLE
CAUSE
R. v. Tran, 2012 NBCA 74
The accused was stopped in a
vehicle checkpoint campaign on the
TransCanada Highway. A police
officer, with 21 years of experience
and attached for the last eight years
to a Roving Traffic Unit that conducts major motor
vehicle check stop operations, noticed a number of
“indicators” that made him suspicious the accused
was transporting contraband:
He had a British Columbia driver’s license—a
contraband-source province;
He was driving a car rented in Montreal—in the
officer’s experience those who transport
contraband do not want to have their personal
vehicles seized so they rent;
He explained that he had moved from British
Columbia to Montreal because of the trouble
with the Olympics;
He was travelling to Moncton because a new
casino had opened and he believed one could
win more easily at that location, as opposed to
a more established casino.
The passenger in the front right seat was
extremely nervous.
There was a pillow and blanket in the back seat
—if there is contraband in a vehicle, the
occupants often sleep in the car to protect it.
A CPIC search revealed the accused had a
firearm prohibition from British Columbia, a
drug trafficking charge from Manitoba and an
outstanding warrant for an impaired driving
charge from Quebec, suggesting the accused
had changed his place of residence often.

Once the accused was aware of his rights, he had an
obligation to pursue them. There was no evidence to
indicate a lack of understanding, a failure to
adequately inform, nor an indication that the
accused thought he had lost the right to speak to a
lawyer once he got to the police station. The police
had met the duty to inform the accused of his s.
10(b) rights.

Implementational Duty
Once police have discharged the informational
component of a s. 10(b), the implementation
component arises only when the accused expresses
a desire to exercise those rights. In this case the
accused never testified that he had no opportunity to
express a desire to call a lawyer. There was ample
time for the accused to utter a few words in order to
exercise his right to consult counsel. Throughout his
time in custody he was in the presence of police
officers, but said nothing to them. “The fact that he
was in unfamiliar circumstances and probably found
the experience novel and intimidating, may explain
his subjective state of mind,” said Justice Bryson.
“But it is not objective evidence that there was no
opportunity to call a lawyer.” The accused’s right to
counsel was not breached. The accused’s appeal was
dismissed and a new trial was ordered.
Complete case available at www.canlii.org

This constellation of indicators matched patterns the
police officer had seen repeatedly during his career
and they were consistent with a person travelling
with contraband. A subsequent search of the
accused’s vehicle uncovered 20 pounds of
marihuana in a suitcase in the trunk. The accused
was charged with possessing cannabis for the
purpose of trafficking.

PAGE 26

Volume 12 Issue 6 - November/December 2012

New Brunswick Provincial Court

detention and the assessment of articulable cause,
and no fixed checklist of factors,” said Justice Larlee.
“The matter of sufficiency of grounds must be
resolved on a case by case basis.” He continued:

The officer testified that the constellation
of indictors matched patterns he had seen
repeatedly during his career and were
consistent with a person travelling with
Reasonable suspicion is a lower standard than
contraband. Although the police officer testified that
that of reasonable and probable grounds. It does
not demand absolute certainty or even
no single indicator by itself was indicative of
reasonable probability. It means something more
criminal activity, the trial judge found the indicators
than a mere suspicion and something less than a
cited were capable of innocuous explanation and
belief based upon reasonable and
collectively were inappropriate to give
“There are no hard and probable grounds. The standard is
rise to reasonable and probable
often contrasted with indiscriminate
fast rules concerning
grounds for the search. The judge
police conduct based on a hunch,
concluded the police were on a
investigative detention
intuition, or speculation, none of
“fishing expedition” and the search was
which are sufficient to support an
and the assessment of
unreasonable. The detention was also
objectively reasonable suspicion.
found to be arbitrary since the accused
articulable cause, and
[para. 8]
was detained on the pretence of
no fixed checklist of
questioning him on his CPIC record.
In this case, the trial judge explained
factors: the matter of
The evidence was excluded under s.
away each of the individual grounds
24(2) and the accused was acquitted.
rather than considering the totality of
sufficiency of grounds
the circumstances (grounds or
must be resolved on a
New Brunswick Court of Appeal
indicators). “Rather than asking
case by case basis.”
whether the existing grounds were
The Crown appealed
sufficient to establish reasonable
the trial judge’s ruling arguing,
suspicion, the trial judge erred in law by taking each
among other grounds, that the
and every indicator given by the police officer and
police did not lack the necessary
speculating about its potential interpretation without
“reasonable grounds to suspect” the accused was
considering the global context,” said Justice Larlee.
involved in criminal activity before detaining him. In
For example, the trial judge speculated on,
the Crown’s view, the judge focused on the
trivialized and attempted to explain away the
individual grounds as opposed to using a “totality of
indicators.
circumstances” assessment. Justice Larlee, delivering
the unanimous Court of Appeal ruling, agreed.
Here, Justice Larlee found “the cumulative effect of
Determining whether the police had “reasonable
the indicators noted by this experienced police
grounds to suspect” that a person was involved in
officer met the threshold of reasonable grounds to
criminal activity involves both an objective and
suspect.” The accused’s detention was not arbitrary
subjective standard. The objective reasonableness of
and the evidence was admissible. The Crown’s
the detaining officer’s grounds “must be assessed
appeal was allowed, the accused’s acquittal was set
from the standpoint of the reasonable person
aside and a new trial was ordered.
‘standing in the shoes of the police officer’”. “There
Complete case available at www.canlii.org
are no hard and fast rules concerning investigative

“Reasonable suspicion is a lower standard than that of reasonable and probable grounds. It
does not demand absolute certainty or even reasonable probability. It means something
more than a mere suspicion and something less than a belief based upon reasonable and
probable grounds.”

PAGE 27

April 7 - 9, 2013
The British Columbia Association of Chiefs of Police, the
Ministry of Public Safety and Solicitor General, and the
Justice Institute of British Columbia, Police Academy are
hosting the Police Leadership Conference in Vancouver,
British Columbia. This is Canada's largest police leadership
conference. This Police Leadership Conference will provide
an opportunity for delegates to hear leadership topics
discussed by world-renowned speakers.
Leadership in policing is not bound by position or rank and
this conference will provide delegates from the police
community with an opportunity to engage in a variety of
leadership areas. The Police Leadership Conference will
bring together experts who will provide current, lively, and
interesting topics on leadership. The carefully chosen list of
keynote speakers will provide a first class opportunity at a
first class venue to hear some of the world's outstanding
authorities on leadership, the challenges facing the policing
community and how to overcome those challenges.

The Service of Policing:
Meeting Public Expectation
www.policeleadershipconference.com

Speakers include

Rick Mercer chronicles, satirizes and ultimately celebrates all that is great and irreverent about this
country. Known as "Canada's Unofficial Opposition," Mercer is our most popular comic, a political
satirist who knows exactly what matters to regular Canadians and what makes them laugh. Born in
St. John's, Newfoundland, Mercer has won over 25 Gemini Awards.
Clarence Joseph Louie, first elected as Chief of the Osoyoos Indian Band in December 1984, has
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living. Under his direction (20+ years), the Band has become a multi-faceted corporation that owns
and manages nine businesses and employs hundreds of people.
Craig Kielburger co-founded, with his brother Marc, Free The Children in 1995 at only 12 years of
age. Today, he remains a passionate full-time volunteer for the organization, now an international
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agents of change.
Wendy Mesley is a regular contributor to CBC News: The National, CBC Television’s flagship news
program, appearing throughout the week in a regular segment that asks provocative questions about
the news stories Canadians are talking about. She also contributes to CBC News: Marketplace, CBC
Television's award-winning prime-time investigative consumer show.
Richard Rosenthal was appointed BC’s first Chief Civilian Director of the Independent Investigations
Office on January 9, 2012. He has extensive experience in civilian oversight of law enforcement
having served for 15 years as deputy district attorney for Los Angeles County, where he worked on
various assignments.
Ian McPherson is a Partner, Advisory Services with KPMG in Toronto and the former Assistant
Commissioner of Territorial Policing at the Metropolitan Police Service in London, UK. Ian is with
KPMG's Global Centre of Excellence for Justice and Security, leading its work throughout North
America.
Major-General (ret'd) Lewis MacKenzie is considered the most experienced peacekeeper on the
planet. MacKenzie has commanded troops from dozens of countries in some of the world's most
dangerous places. In Sarajevo, during the Bosnian Civil War, he famously managed to open the
Sarajevo airport for the delivery of humanitarian aid.
Dr. John Izzo has devoted his life and career to helping leaders create workplaces that bring out the
best in people, plus discover more purpose and fulfillment in life and work. For over 20 years, he has
pioneered employee engagement, helping organizations create great corporate cultures and leading
brands through transformations that create both customer and employee loyalty.
In an increasingly social world, Susan Cain shifts our focus to help us reconsider the role of introverts
- outlining their many strengths and vital contributions. Like A Whole New Mind and Stumbling on
Happiness, Cain's book, Quiet: The Power of Introverts In a World That Can't Stop Talking, is a
paradigm-changing lodestar that shows how dramatically our culture has come to misunderstand and
undervalue introverts.

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INTELLIGENCE ANALYSIS | TACTICAL CRIMINAL ANALYSIS
Foundational Courses:
Intelligence Theories and Applications
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Entrance Requirements:
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For detailed requirements please visit the
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Justice Institute of British Columbia, Canada | www.jibc.ca |graduatestudies@jibc.ca

Foundational Courses
(students enrolled in either graduate certificate are required to complete the
foundational courses)

Intelligence Theories and Applications

Intelligence Communications

Advanced Analytical Techniques

A survey course that introduces the student
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This course is an introduction to law enforcement
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This course examines the nature and scope of financial crimes
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Volume 12 Issue 6 - November/December 2012

DNA CANVASS ‘A PERMISSIBLE
INVESTIGATIVE PROCESS’
R. v. Osmond, 2012 BCCA 382
Following the discovery of a 13-yearold girl’s badly injured and partially
unclothed body in a bushy area near
her home, police canvassed young
male persons in the community to
obtain DNA samples. The girl had been beaten,
strangled, raped and died as a result of multiple
injuries. During the accused’s second interview an
investigator explained that he wished to take a
consent sample of blood from him for the purposes
of DNA analysis in order to narrow the group of
potential suspects. The investigator explained to the
accused that the lab would analyze and profile his
DNA and compare it to any suspect DNA on the
victim’s body. He explained that if the DNA
matched, the accused would be charged with
murder. The accused said he understood and a
“Biological Evidence Consent Form” was reviewed.
In reviewing the form, the accused was told that he
was being investigated for murder and he could
speak with a lawyer. But he chose not to call one.
He also confirmed that he fully understood he was
under no obligation to provide a DNA sample, if the
sample matched he would be arrested and charged
with murder, the results could be used in court and
he was voluntarily giving a sample. He again
confirmed that he did not want to talk to a lawyer.

sample voluntarily and (5) that he could speak to a
lawyer at no charge if he wished to do so. The judge
also rejected the accused’s notion that random
police requests from large samples of non-suspects
in the community (described as “mass virtue
testing”) was an unacceptable intrusion of privacy
regardless of consent. The judge found the taking of
the DNA sample did not infringe on the accused’s
right to be presumed innocent when police did not
have grounds to get a DNA warrant. The judge
concluded that the manner in which the DNA
canvass was conducted did not offend the Charter
and the DNA evidence was admitted. It linked the
accused to semen found with the victim’s blood on a
mattress and material extracted from a wash of the
victim’s fingernail clippings. He was convicted of
first degree murder - the killing occurred
concurrently with a sexual assault.

British Columbia Court of Appeal
The accused appealed submitting,
in part, that the DNA evidence
should have been inadmissible. In
his view, a general DNA canvass of
young male persons in the community for potential
suspects was an unacceptable practice and violated
the Charter. He suggested that such police conduct
was analogous to entrapment - similar to “random
virtue testing.” The Court of Appeal, however,
rejected this view:
Here there was a small community and it
seemed highly likely that the killer could be a
resident of the area. The police had a reasoned
belief that the DNA canvass they proposed
could lead to the identification of a suspect in
the homicide. This was a very different case and
a much more closely focussed investigation. ...
In my opinion, the DNA canvass by the police
was a permissible investigative process in the
circumstances of this case. [para. 22]

British Columbia Supreme Court
The trial judge concluded that the
accused had not been detained under s.
10(b) of the Charter and therefore the
police did not need to advise him of his
right to counsel. In any event, however, the accused
was sufficiently advised about his right to counsel.
Furthermore, the judge ruled that the accused’s
consent to the seizing of his blood sample was fully
informed. He understood: (1) why police took a
blood sample (to try and match it to any substance
found on the victim’s body) (2) the uniqueness of
DNA and how it could implicate a suspect, (3) that if
his DNA matched he would be charged with murder
and it could be used in court, (4) he was giving the

The accused was neither detained nor placed under
any improper duress during the process of obtaining
his DNA and he voluntarily furnished a sample of
his blood. The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

PAGE 32