POLICE ACADEMY

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

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

PROTECTIVE SEARCH VALID:
OFFICERS POSSESSED A
REASONABLE SUSPICION
R. v. Wade,
(2001) Docket:C36714 (OntCA)
The Ontario Court of Appeal
recently dismissed, in part, the
conviction appeal of the accused for
a serious offence involving a
firearm. Police had received a detailed, compelling, and
current tip from a complainant who had identified
himself by name, address, and phone number. There
were sufficient similarities between the scene the
officers found and the scene as described by the
complainant despite a dissimilarity in clothing
described by the tipster; the objective factors were
sufficient to constitute a reasonable suspicion
(articulable cause) that the accused had committed a
serious crime involving a firearm. While there were not
sufficient grounds to arrest, the officer’s belief did
transcend “a mere intuition or hunch based only on
subjective factors” and it was the discovery of a
firearm from the pat down search conducted that
subsequently led to the arrest.
Complete case available at www.ontariocourts.on.ca.

BICYCLE HELMET LAW NOT
DISCRIMINATORY
R. v. Warman, 2001 BCSC 1771
The British Columbia Supreme Court
dismissed the appeal of an accused
who had been convicted of not
wearing a helmet while riding a
bicycle. The accused argued the
provision of the Motor Vehicle Act (s.184) requiring a
bicycle rider to wear a protective helmet violated his
right of free choice and was discriminatory because
certain groups were exempted from complying with the
section based on their religious beliefs. In recognizing

Volume 2 Issue 1
January 2002

that the law infringed on the accused’s free choice, the
Court concluded that the public interest occasionally
must place constraints on this freedom; in this case
“society’s need to promote the welfare and well being
of its citizens”. Furthermore, although there is an
exemption in the legislation permitting a rider to wear
a turban instead of a helmet, the accused failed to
establish that the helmet law discriminated against his
religious or other rights. As the Court noted:
Merely because exemptions from the application of
legislation for reasons such as religion result in people
being treated differently, does not automatically lead to
the conclusion suggested…that those who fail to come
within the exemption are being discriminated against.
Although most legislation is of general application, some
legislation does for specific reasons occasionally contain
exemptions for certain groups. I conclude that such
exemptions cannot lead to a person falling outside the
exempt group successfully arguing that the exemption
discriminates against him or her.

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

NO MAGIC FORMULA IN
PROVIDING RIGHT TO
COUNSEL
R. v. McKenzie, 2001 ABCA 304
The accused was interviewed by a
polygraph operator to determine
whether he was responsible for the
killing of a missing 12 year old girl.
The accused had agreed to submit to
a polygraph interview and conceded that he was neither
arrested nor detained during the pre-interview
process. The accused was repeatedly told that he did
not have to speak to the police, did not need to say
anything without first speaking to a lawyer, and that
the police would refrain from questioning him should he
chose to speak with counsel. During the interview the
accused admitted he had not been completely truthful
and requested to speak with a lawyer. The accused was
provided with an opportunity but was unable to contact
counsel. The accused left for his bank to attend to

some business; later returning to the police
detachment where he was interviewed and admitted
killing the young girl by running over her while
intoxicated, burning her body, and throwing the
remains off a bridge. At this point the accused was
arrested for murder. The accused was reminded of his
Charter rights and the interview continued. The
accused argued that his pre-arrest statements were
inadmissible because the police failed to provide the
additional information component mandated in R. v.
Prosper (1994) 92 CCC (3d) 353 (SCC). In Prosper, the
Supreme Court of Canada held that where a person has
asserted their right to counsel and has been reasonably
diligent in exercising it, the police are obligated to
inform the person of their right to a reasonable
opportunity to contact counsel and that the police must
hold off from eliciting evidence, pending the exercise
of that right. This additional informational requirement
ensures that the person properly understands what the
rights are that they are relinquishing.
For the purpose of this case, the Alberta Court of
Appeal assumed, without deciding, that the accused
was both detained during the pre-arrest interview, had
asserted his right, and was reasonably diligent in
exercising it. The Court found that the police on at
least three occasions indicated they would hold off
questioning if the accused wished to call a lawyer. The
accused argued the choice of words used by the police
did not sufficiently satisfy this informational
component. For example, the police indicated they “will”
hold off questioning while the accused contended they
“must” hold off questioning. In rejecting the accused’s
appeal, the Court found “no magic formula need be
spoken” but the message must be clear. In this case,
the police complied with the Prosper requirements in
both “spirit and in substance”.
Editor’s Note: In British Columbia, the Charter card
issued to police officers by the Attorney General
contains the additional informational requirement,
addressing the issues identified in Prosper. The
selected wording is as follows:
You have the right to a reasonable opportunity to contact
counsel. I am obliged not to take a statement from you or to
ask you to participate in any process which could provide
incriminating evidence until you are certain about whether you
wish to exercise that right.
Do you understand?
What do you wish to do?

Volume 2 Issue 1
January 2002

RIGHT TO COUNSEL:
UNDERSTANDING YOUR
DUTIES
Part 1 of 2

Sgt. Mike Novakowski
The right to counsel is designed
to
ensure
that
persons
arrested or detained are
treated fairly in the criminal
process. A detainee or arrestee
is placed in a position of
disadvantage relative to the
state authorities and may be at
risk of incriminating themselves. To remedy this
disadvantage, the person is entitled to speak to counsel
at the outset of an arrest or detention so they may
obtain appropriate advice to make informed choices.
One of the main functions of a lawyer at the early
stage of detention or arrest is to confirm the
existence of the right to remain silent and advise the
person about how to exercise that right1. This includes
the opportunity to receive instruction from a lawyer in
order that the detainee may make a rational, informed
choice about what to say or not to say to the police.
It is important to understand that the right to counsel
does not arise from police investigation or questioning
in the absence of detention2, but arises from the fact
of detention or arrest3. If there is no detention or
arrest, there is no requirement to advise a person of
their rights under s.10 of the Charter4. Consequently,
the right to counsel does not extend to pre-detention
investigations5 such as the mere asking of questions at
the start of an investigation from people who might
later turn out to be involved in criminal acts6. In fact, a
police officer is entitled to question any person from
whom they believe useful information may be obtained.
However, the police are not, as a general rule, entitled
1

R. v. Manninen [1987] 1 S.C.R. 1233 (S.C.C.), R. v. Hebert [1990] 2 S.C.R. 151
(S.C.C.)
2
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.) per Stevenson J.
3
R. v. Prosper [1994] 3 S.C.R. 236 (S.C.C.), R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.),
R. v. M.C. [1998] B.C.J. No.1582 (B.C.S.C.) at para.53, R. v. Keats (1987) 39 C.C.C.
(3d) 358 (Nfld.C.A.) at p.366, R. v. Cho 2000 BCCA 658 at para. 45, R. v. Williams
(1995) 98 C.C.C. (3d) 176 B.C.C.A. at p.193, R. v. Esposito (1985) 24 C.C.C. (3d) 88
(Ont. C.A.) appeal to S.C.C. refused (1986) at p. 97.
4
R. v. Yorke (1990) 54 C.C.C. (3d) 321 (Ont.C.A.) at p.329, R. v. Esposito (1985) 24
C.C.C. (3d) 88 (Ont.C.A.) at p.97 leave to appeal to S.C.C. refused., R. v. MacDonald
(1988) 41 C.C.C. (3d) 75 (N.S.C.A.) at p.78., R. v. MacLean (1987) 36 C.C.C. (3d) 127
(N.S.C.A.) at p.133, R. v. Hanneson (1989) 88 C.C.C. (3d) 467 (Ont. C.A.) at p. 472.
5
R. v. Hebert [1990] 2 S.C.R. 151 (S.C.C.)
6
R. v. Kay (1990) 53 C.C.C. (3d) 500 (B.C.C.A.) at p.506, R. v. D.E.M. (2001) 156
C.C.C. (3d) 239 (Man.C.A.).

2

to compel the person to answer nor forcibly detain the
person for questioning7.
Section 10 of the Charter is divided into two
corresponding duties:
1.

2.

informational
duties
(the right to be informed
promptly of the reason
for arrest or detention
and the right to be
informed of the right to
retain
and
instruct
counsel without delay)
implementational duties8 (the right to retain and
instruct counsel without delay). These are the
procedural aspects or duties imposed on the police
to ensure that a person may exercise their
constitutional right to counsel9 .

INFORMATIONAL DUTIES
Duty to Advise
Section 10 requires the police fulfil two constitutional
informational duties. Section 10(a) of the Charter
requires the officer to inform the person of the
reason for the detention or arrest and s.10(b) imposes
an onus on the police to inform the person of their
right to counsel. These constitutional rights are
guaranteed to every person under arrest or detention
(regardless of whether the person is obnoxious or
agreeable; belligerent or passive; uncooperative or
cooperative10).

Section 10(a)
Section 10(a) has a dual rationale underlying the right
to be promptly advised of the reasons for detention or
arrest. First, the right to be informed of the true
grounds for detention or arrest is firmly rooted in the
common law requiring the detainee be informed in
sufficient detail so that they know in substance the
reason why it is claimed that the restraint on their
liberty should be imposed. A person is not obliged to
submit to a detention or arrest unless one knows the
reasons for it. The second rationale is its adjunct to
7

R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont.C.A.) at p.258.
See next issue for part 2 where the implementational duties of the police are
examined.
9
R. v. Logan et al (1988) 46 C.C.C. (3d) 354 (Ont.C.A.) affirmed 58 C.C.C. (3d) 391
(S.C.C.)
10
R. v. Young (1987) 38 C.C.C. (3d) 452 (N.B.C.A.) per Ryan J.A. at p.467.
8

Volume 2 Issue 1
January 2002

the right to counsel conferred by s.10(b)11. The purpose
of this information is to advise the person of the risk
or jeopardy caused by the arrest or detention. A
person can only make an appropriate decision as to
whether or not they should contact counsel, and if the
decision is to contact counsel, to obtain meaningful
advice by advising counsel as to the extent of their
jeopardy12. Therefore, the right to retain and instruct
counsel is undermined if the person does not have
sufficient information to assess the extent of their
jeopardy13.
In determining whether there has been a breach of
s.10(a), the court will consider the substance of what
the person can reasonably be supposed to understand
rather than the formalism of the precise words used.
The emphasis will be on the reality of the total
situation as it impacts on the understanding of the
person, not the technical detail, precise charge, or
whether the person was aware of all the factual details
of the case14. Thus, the proper test in finding a s.10(b)
violation linked to s.10(a) is whether what the person
was told, viewed reasonably in all the circumstances,
undermined their right to counsel15.

Section 10(b)
Section 10(b) encompasses two rights16:
•

•

the right on arrest or detention to retain and
instruct counsel without delay, and
the right to be informed of that right

The purpose of the informational component of s.10(b)
is to enable a person to make an informed choice about
whether to exercise the right to counsel and to
exercise other rights protected by the Charter such as
the right to silence17. The detainee or arrestee has the
right to be properly informed (including clear
communication18) and the responsibility for conveying
the advice in comprehensible terms rests with the
police effecting the detention or arrest19. Simply
stated, the person has the right of being informed in
11

R. v. Evans (1991) 63 C.C.C. (3d) 289 (S.C.C.).
R. v. Wong (1998) Docket:CA022945 B.C.C.A., R. v. Black [1989] 2 S.C.R. 138
(S.C.C.)
13
R. v. Power (1993) 81 C.C.C. (3d) 1 (Nfld.C.A.) per Goodridge J.A. at p.6.
14
R. v. Smith [1991] 1 S.C.R. 714 (S.C.C.), see also R. v. Ballantyne 1997
Docket:10929 B.C.S.C. at para.21.
15
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.) per McLachlin J.
16
R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.) at p.431, R. v. McAvena (1987) 34
C.C.C. (3d) 460 (Sask.C.A.)
17
R. v. Latimer [1997] 1 S.C.R. 217 (S.C.C.) at para.33.
18
R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.) at p.431.
19
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.181
12

3

terms they understand20. For example, it would not be
acceptable to a French speaking person to be advised
of their rights in English if they did not understand
English, or to tell a person of their rights in highly
technical language. The exact language of the Charter
need not be used as long as the person is clearly
informed of every aspect of their right to counsel21.
Ordinarily the person will acknowledge they understand
their rights that have been clearly communicated to
them by the police and it can be inferred from the
circumstances that the person understands what they
have been told22. The question is not whether the
message
communicated
by
the
police
was
comprehended but whether it was comprehensible23.
The police are not required to assure themselves the
detainee fully understands s.10(b)24. The courts
recognize that the circumstances of an arrest are
frequently highly charged and do not readily lend
themselves to a fine-tuned, objective analysis by the
police of the extent of a person's knowledge of their
rights25.
There is no duty on the police to probe into the
person's degree of understanding or comprehension
unless there are special circumstances such as mental
impairment26 or language difficulty, or if words or
conduct cause a reasonable inference that the person
did not understand.27 Failure to acknowledge explicitly
that they understand their right or failed to request
an opportunity to exercise their rights does not
necessarily constitute a violation of the right to
counsel28. In many circumstances, a question as to
whether the person understands the right ends the
officer's obligation29. In the absence of evidence to
suggest the contrary, a constitutionally sufficient
understanding of the right to counsel will be inferred
from a positive response to the question "do you
20

R. v. MacCormack (1988) 71 Nfld. & P.E.I. R. 347 (P.E.I. C.A.), R. v. Campbell
(1989) 53 C.C.C. (3d) 93 (P.E.I. C.A.) at p. 94.
21
R. v. Dubois (1990) 54 C.C.C. (3d) 166 (Que, C.A.) per Fish J.A.
22
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.)
23
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.181
24
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.)
25
R. v. Butler (1995) 104 C.C.C. (3d) 198 (B.C.C.A.) leave to appeal to Supreme Court
of Canada refused 105 C.C.C. (3d) vi.
26
See R. v. Johnny [1984] B.C.J. No. 749 (B.C.S.C.) where the court found a breach
because he was not capable of understanding the information provided by police.
The accused's vocabulary was assessed as that of a 6 year old, his reading
comprehension a grade 4.2 level, and he was deficient in intellectual development
from being totally deaf for 4 years. See also R. v. Evans [1991] 1 S.C.R. 869.
27
R. v. Baig (1985) 20 C.C.C. (3d) 515 (Ont.C.A.) affirmed [1987] 2 S.C.R. 537
(S.C.C.), see also R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.182.
28
R. v. Baig (1985) 20 C.C.C. (3d) 515 (Ont.C.A.) affirmed [1987] 2 S.C.R. 537
(S.C.C.)
29
R. v. Anderson (1984) 10 C.C.C. (3d) 417 (Ont.C.A.) at p.422., R. v. Hollis (1992)
76 C.C.C. (3d) 421 (B.C.C.A.) at p.432.

Volume 2 Issue 1
January 2002

understand?"30. Where the person chooses not to
retain and instruct counsel then speaks to police, the
statement obtained is not inconsistent with the
Charter31.
Conversely, where there is a positive indication that a
person does not understand their right to counsel the
police cannot rely simply on the mechanical recitation
of the right to counsel in order to discharge their
responsibilities under s.10(b)32. If there are indications
that the person has not sufficiently understood or
appreciated their right to counsel when it has been
conveyed to them, the police duty to inform will entail
such steps as are necessary to facilitate adequate
comprehension33. For example, in R. v. Evans (1991) 63
C.C.C. (3d) 289 (S.C.C.), the police, who were aware the
accused was hampered by a mental deficiency
bordering on retardation, should have taken special
care to make sure he understood his right to counsel.
In failing to make a reasonable effort in explaining to
the accused his right to counsel, the police violated
s.10(b) of the Charter.
In short, a person who does not understand their right
to counsel cannot be expected to assert the right34.
The police must take affirmative steps to facilitate
understanding if confusion or lack of understanding
exists35. In assessing whether a person appreciates the
information provided, their oral responses and
externally exhibited capacity to understand may be
reasonably interpreted as coming from an individual
who has appreciated the information given to them36.

Language Barriers
Where a language barrier exists such that a person
may require an interpreter to overcome an obvious
difficulty with the English language, the failure of the
police to provide an interpreter will result in a breach
of the person's s.10(b) rights. If the person's
knowledge of the English language does not permit
sufficient comprehension of their rights, "special
circumstances" arise requiring the officer to
adequately inform the person in their native language
through the assistance of a card, interpreter, or
30

R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.) at p.433
R. v. Anderson (1984) 10 C.C.C. (3d) 417 (Ont.C.A.) at p.422.
32
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.), see also R. v. McAvena (1987) 34 C.C.C.
(3d) 460 (Sask.C.A.), R. v. Mohl (1987) 34 C.C.C. (3d) 435 (Sask.C.A.) per Vanise
J.A.), R. v. Dubois (1990) 54 C.C.C. (3d) 166 (Que C.A.) per Fish J.A.)
33
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.181-2.
34
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.).
35
R. v. Burlingham [1995] 2 S.C.R. 206 (S.C.C.) per Iacobucci J.
36
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.183.
31

4

bilingual officer37. Failure to do so amounts to a
violation of the police obligation to provide an adequate
understanding of the right to counsel38. Although a
reasonable time arranging interpreter services will be
permitted, s.10(b) rights will be breached by the
failure of police to advise an arrestee of their right to
counsel 11 hours after it was apparent the person did
not understand their rights when the rights were read
in English39. For the deaf this may require sign language
communication or written explanation of the right to
counsel.

To fulfil this obligation, the informational duty need
consist of no more than telling a detainee in plain
language that the person will be provided with a
telephone number should they wish to contact counsel
right away42. The actual 1-800 number need not be
provided as part of the informational warning43, but will
be required once the person asserts the right to
contact duty counsel or legal aid.

Legal Aid and Duty Counsel

Right to Be Informed of Privacy

In addition to advising detainees or
their general right to counsel, the
police must advise the person of the
existence and availability of legal
aid and duty counsel40. Therefore,
as part of the informational
component the police have a duty
to
advise
all
arrested
and
detained persons of:

Although it is not clear whether there is an
informational duty as a requirement of the Charter to
advise a detainee or arrestee that they have the right
to contact counsel in private,
the
courts
have
recommended that it "may be
wise
to
provide
such
warning"44.
Charter
The
Warning issued by the
Ministry of the Attorney
General includes the words
"in private". This will address
any issues arising as to
whether the person was aware of their right to consult
counsel in private.

•

basic information about access to Legal Aid.
“Legal aid” refers to an organized program paid for
by the government providing free legal advice and
counsel to an accused person (they must meet the
prescribed financial criteria set by the provincial
Legal Aid plan).

•

basic information about access to duty counsel.
“Duty counsel” refers to immediate, although
temporary, free legal advice provided to persons
detained or arrested irrespective of their financial
status. Duty counsel is generally intended to
provide assistance to those persons who cannot
afford a lawyer or who do not know a lawyer, but is
available to anyone on arrest or detention who
requires immediate assistance.
This advice
“bridge[s] the gap between a detainee’s initial
contact with [police] and the time the detainee is
able to retain counsel, either privately or through
Legal Aid”41. In addition, duty counsel may also
inform the unrepresented person about making an
application for Legal Aid. Other important

37

R. v. Vanstaceghem (1987) 36 C.C.C. (3d) 142 (Ont.C.A.) at p.147-148.
R. v. Lim (No.3) (1990) 1 C.R.R. (2d) 148 (Ont.H.C.).
39
R. Tam (1995) 100 C.C.C. (3d) 196 (B.C.C.A.) at p.209.
40
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.), R. v. Brydges [1990] 1 S.C.R. 190 (S.C.C.) ,
R. v. Cobham [1994] 3 S.C.R. 360 (S.C.C.), R. v. Harper [1994] 3 S.C.R. 343 (S.C.C.),
R. v. Pozniak [1994] 3 S.C.R. 310 (S.C.C.), R. v. Prosper [1994] 3 S.C.R. 236 (S.C.C.),
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.180.
41
R. v. Russell (2000) 150 C.C.C. (3d) 243 (N.B.C.A.) at p. 251.
38

Volume 2 Issue 1
January 2002

functions of duty counsel include representing the
person on an application for remand or bail.

Standard Charter Warning
It is important that the standard, or customary,
Charter warning given to a person respecting their
right to counsel be as instructive and clear as
possible45. To this end, the Ministry of Attorney
General has developed a "Charter" card that
standardizes and addresses various court decisions to
ensure the proper information is communicated to the
person. Although the card ensures all the informational
duties of the police are fulfilled, occasions may arise
where the mere recitation of the card will not suffice.
In circumstances where a particular individual may not
understand the information being communicated to
them, the police must take additional steps to ensure
the person comprehends their s.10(b) rights46.
42

R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.), R. v. Cobham [1994] 3 S.C.R. 360 (S.C.C.),
R. v. Poudrier 1998 Docket CA023213 B.C.C.A.
43
R. v. Ireland [1998] B.C.J. No. 2510 (B.C.S.C.).
44
R. v. Butler (1995) 104 C.C.C. (3d) 198 (B.C.C.A.) leave to appeal to Supreme Court
of Canada refused 105 C.C.C. (3d) vi., see also R. v. Jackson (1993) 86 C.C.C. (3d)
233 (Ont.C.A.).
45
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.).
46
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.).

5

Any time a person is arrested or detained it is
recommended that the Charter warning be given to
that person by reading it directly from the Charter
card. This will ensure that the person is adequately
advised of the required informational components of
s.10(b). Additionally, a police officer may be required
to advise the court the exact words used in informing
the person of their right to counsel. If the officer can
testify that they read the standard Charter warning,
this practice will ensure accuracy and avoid any
problems that may arise if the officer chooses to rely
on their memory. If however, the informational
component is insufficient and the person nonetheless
contacts counsel, any argument of the efficacy of the
warning is illusory because the objective of the warning
has been satisfied47.

Interrupted Charter Warning
The fact that a person is aware of the right to counsel
does not necessarily preclude the obligation of the
police under s.10(b) to advise that person of their right
to counsel. The right to being informed is a clear,
unqualified right notwithstanding the foreknowledge of
the right to counsel48. A detainee may explicitly waive
their right to be informed of counsel provided the
circumstances reveal a reasonable basis for believing
the detainee in fact knows and has averted to their
rights and is aware of the means by which these rights
can be exercised. For example, a person may interrupt
the police when the police begin to read the rights and
tell the police they need not continue. The fact a
person merely indicates that they know their rights will
not, by itself, provide a reasonable basis for believing
that the detainee in fact fully understands the extent
and means by which the right to counsel may be
implemented. The police have an obligation to take
reasonable steps to ensure the detainee is aware of all
the information they have the right to receive. The
simplest way to discharge this duty is to read the
standard warning to every person49.

to determine whether a potentially dangerous situation
exists50. Delay in the interests of legitimate selfprotection is permissible because the police are not
expected to risk their lives or safety51. This type of
delay is concerned with officer safety and not with
investigative convenience or efficiency. A delay in
informing a person of their right to counsel may also
arise in circumstances of urgency or necessity. It may
be necessary to obtain information prior to advising
the person of their right to counsel, which is
important, rather than the need to restrict a person's
movements by detention or arrest52.
Circumstances justifying a delay in informing the
person may include occasions where the person is not in
a position to understand their right to counsel. For
example, if a person was unconscious at the time of
detention, the obligation to inform would not arise until
the person was in a position to understand the
information. The person must be in a position to
understand the advice given to them before the
obligation arises to give it53.

Right to Be Re-Informed
Section 10(b) states that the right to counsel arises
"on arrest or detention". This indicates a point in time,
not a continuum54. Although the right to counsel
continues after the initial instruction and retention,
s.10(b) does not deal with a continuing right to be reinstructed (informed) before every occasion on which
the police elicit a statement55. However, there may be
occasions where there is a duty on the police to advise
a person of their right to counsel on a second or a
subsequent occasion. This additional right to be advised
of the right to retain and instruct counsel may arise
where:
•
new circumstances arise indicating that the
person is a suspect for a different or unrelated
offence than was the case at the time of the
first warning56 (additional charges. This includes
additional offences of the same nature57).

Delay in Informing of Right to Counsel
The police are not obliged to read a person their
s.10(b) rights the instant they are detained or
arrested in all cases. The police are permitted some
latitude in assessing or gaining control over a situation

47
48
49

R. v. Ouellette (1996) 111 C.C.C. (3d) 336 (N.B.C.A.) at p.339.
R. v. Greene (1991) 62 C.C.C. (3d) 344 (Nfld.C.A.)
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.)

Volume 2 Issue 1
January 2002

50

R. v. Feeney [1997] 2 S.C.R. 13 (S.C.C.) L'Heueux-Dube, Gonthier, and McLachlin
JJ.
51
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Wilson J.
52
R. v. Elshaw [1991] 3 S.C.R. 24 (S.C.C.) per Iacobucci J.
53
R. v. MacDonald (1988) 41 C.C.C. (3d) 75 (N.S.C.A.) at p.80.
54
R. v. Bouchard (1994) 94 C.C.C. (3d) 380 (N.B.C.A.) at p.382, R. v. McLean (1989)
50 C.C.C. (3d) 326 (Ont. C.A.).
55
R. v. Logan (1988) 46 C.C.C. (3d) 354 (Ont.C.A.), R. v. M.C. [1998] B.C.J. No. 1582
(B.C.S.C.) at para. 53, R. v. McLean (1989) 50 C.C.C. (3d) 326 (Ont. C.A.), R. V.
Purdon (1989) 52 C.C.C. (3d) 270 (Ont. C.A.) at p. 275, R. v. Cuff (1989) 49 C.C.C.
(3d) 65 (Nfld. C.A.) at p. 71.
56
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.) per MacLachlin at pp.892-93.
57
R. v. Witts (1998) 124 C.C.C. (3d) 410 (Man.C.A.) at p.414.

6

•

new circumstances arise indicating that the
person is a suspect for a significantly more
serious offence than the offence contemplated
at the time of the first warning58 (a charge is
raised to a more serious charge-the extent of a
person's jeopardy is increased)

This additional right to be informed of the right to
counsel arises because the person's original decision as
to whether to consult counsel may well be affected by
the new or different situation and requires a
reconsideration of the person's initial waiver. This
protects the individual from police manipulation
whereby the police, in hoping to question a detainee
without counsel present, arrest a person on a relatively
minor offence (where the presence of a lawyer may not
be necessary) in order to question the person regarding
a more serious offence. It may not be necessary that
the police officer re-read the person their rights in a
"rote-like manner" but may be sufficient to simply
remind the person that the rights previously extended
to them are still available with respect to the new
offences59. In the course of an exploratory
investigation, this does not require that the police
reiterate the right to counsel every time the
investigation touches on a different offence60. When
new offences are mentioned during the course of an
investigation, some opportunity will be permitted for
the police to verify some of the information so as to
determine if the statements should be taken
seriously61. A restatement of the right to counsel is
required only where there is a fundamental and
discrete change in the purpose or nature of the
investigation or the person's jeopardy changes62 (a
substantial change63).

Early Warning
Although s.10(b) does not require
the police to inform the person
being investigated of their right
to instruct counsel in the absence
of an arrest or detention, the
section does not prohibit the police from providing
such advice at the commencement of or during an
investigation. The precise moment when a detention
arises is no means easy to determine and a police
58

R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.) per MacLachlin at pp.892-93.
R. v. Witts (1998) 124 C.C.C. (3d) 410 (Man.C.A.) at p.414.
R. v. Evans [1991] 1 S.C.R. 869 (S.C.C.).
61
R. v. Whittle (1994) 92 C.C.C. (3d) 11 at p.35.
62
R. v. Whittle (1994) 92 C.C.C. (3d) 11 at p.35.
63
Paternak v. the Queen (1996) 110 C.C.C. (3d) 382 (S.C.C.).
59
60

Volume 2 Issue 1
January 2002

officer may lean towards greater caution by ensuring
that a person is aware of their rights when an
investigation commences or during its course, even
though no detention may yet have crystallized. In R. v.
Schmautz (1988) 41 C.C.C. (3d) 449 (B.C.C.A.) appeal to
S.C.C. affirmed [1990] 1 S.C.R. 398 (S.C.C.), Wallace
J.A. stated:
When one considers the nebulous nature of the
circumstances which may in law constitute a detention or
arrest, one can appreciate that an officer, acting out of
an abundance of caution to ensure that an accused is fully
aware of his rights, may choose to give the advice at the
commencement of the investigation, thereby removing
any doubt that the appellant is at all times fully aware of
his right to instruct counsel.

SNIFF AT CAR DOOR
NOT A SEARCH
R. v. Cormack,
(2001) Docket:230/00 (OntSCJ)
A uniform police officer on general
patrol
was
randomly
stopping
vehicles in an area populated by
licensed
establishments
to
determine if drivers had been drinking. As a
consequence of this “blitz”, the officer stopped the
accused who subsequently failed a road side screening
test. The accused later provided breathalyzer readings
at the police station that were over the legal limit. At
trial, the accused was acquitted because the judge
found the accused’s right under s.9 of the Charter, to
be free from arbitrary detention, was violated by the
random spot check and the violation was not saved by
s.1. On appeal, the Ontario Supreme Court of Justice
determined the trial judge erred in finding a Charter
infringement and that the officer targeting drivers in
an area with a high likelihood of impaired drivers was
related to highway traffic concerns and therefore
lawful.
The accused also argued that his right to be secure
against unreasonable search and seizure had been
violated since the officer was not entitled to ‘sniff’ for
an odour of alcohol to further a criminal investigation
while examining matters circumscribed to highway
safety (a similar argument by analogy to police entering
onto private property to sniff at one’s door-R. v. Evans
(1996) 104 C.C.C. (3d) 23 (S.C.C.)). In rejecting this
argument, the Court stated, at para. 18:

7

As is frequently the case with attempted analogies, this
one does not work. It is a necessary and inevitable
aspect of the investigation which police officers are
permitted to undertake in furtherance of the authority
given to them by section 216(1) of the Highway Traffic
Act that they will be able to utilize their human senses
and record observations consequent thereon. Whether it
is smelling the odour of alcohol, seeing glassy eyes or a
flushed face or hearing slurred speech, it is all part of
the investigatory function which the police officer is
entitled to carry out.

And further, at para.19:
In my view it follows from that conclusion that the
actions of police officers are not transformed from a
non-search to a search merely because they are able to
contemporaneously make sensory observations.
The accused’s acquittal was set aside.

Note-able Quote
“[T]he citizen expects police officers to have the
wisdom of Solomon, the courage of David, the strength
of Sampson, the patience of Job, the leadership of
Moses, the kindness of the good Samaritans, the
strategical training of Alexander, the faith of Daniel,
the diplomacy of Lincoln, the tolerance of the
carpenter of Nazareth and finally an intimate
knowledge of every branch of the natural, biological
and social sciences. If [they] had all these [they] might
be a good [police officer].” Professor August Vollmer.

SEARCH OF DETAINED DRIVER
REASONABLE
R. v. Hewlin, 2001 NSCA 16
The police had information the
accused was trafficking in narcotics.
As a result, the police placed his
residence under surveillance. In the
early evening, police observed two
vehicles depart the residence. Police stopped the
accused’s truck and the officer immediately recognized
the accused from a past encounter. The officer’s
original intention was to further the purpose of the
surveillance but he also knew the accused to be a
suspended or prohibited driver. The officer asked for
a driver’s licence but the accused did not have any
papers with him. The officer requested the accused
exit his vehicle and accompany him back to the police
car. The officer told the accused there would be a pat

Volume 2 Issue 1
January 2002

down search of his person. As a result, the accused
removed from his pants pocket money and another
object. The money was moved to his other hand, but
the accused tossed the other object over a guard-rail
and down an embankment near a ditch. The accused was
released after the officer was satisfied the accused
was licensed, but was told there may be consequences
if the police find anything suspicious in the ditch. Police
“secured” the area, called for a police service dog, and
consequently recovered a small oblong container with
16 hits of LSD.
At trial, the Court found the detention of the accused
lawful but the search unreasonable. The trial judge was
of the opinion that the officer lacked objective
evidence of suspicious or possible violent behaviour on
the part of the accused. As a consequence, there were
insufficient grounds to search the accused. On appeal,
the Nova Scotia Court of Appeal found the trial judge
erred in law in concluding that the search was
unreasonable. At para. 5, the unanimous court held:
[W]e find that the search of the respondent was
reasonable. It was authorized by a common law power of
search incident to a lawful detention or arrest. This law
has been found to be reasonable, and the search was
reasonable in the manner in which it was carried out. In
the circumstances of this case, the trial judge erred by
finding that the police officer needed independent grounds
to perform a search incident to detention.

The appeal court remitted the case back to the
Provincial Court for the entering of a conviction and
the imposition of a sentence.

ABSENT DETENTION, NO
RIGHT TO COUNSEL
USA v. Fong, 2001 BCCA 684
Canadian Customs Agents executed a
search warrant at the accused’s
warehouse. It was alleged the
accused routed shipments of garlic
from China through his Vancouver
business bound to California. The accused declared the
garlic to be from Taiwan thereby avoiding a 377% duty
imposed by the US on Garlic from China. The accused
was subject to an extradition proceeding by US
officials alleging he deprived American Customs of $2
million.
A Canadian Customs officer presented the accused
with the search warrant and the search commenced.

8

After finding some documents, the officer approached
the accused and cautioned him about statements but
did not provide the accused with the standard right to
counsel warning. The accused did not respond to any of
the officer’s questions. Later, the officer confronted
the accused with a box of garlic labeled as a product of
Taiwan and also documents showing the garlic came
from China. The accused then made incriminating
statements. The officer then asked the accused if he
wished to provide a written statement; the accused
stated he wanted to talk to a lawyer.
The central issue on appeal was whether the accused
was constitutionally detained during the execution of
the search warrant. If he was, he was deprived of his
right to counsel as guaranteed by s.10 of the Charter.
If not, his right to counsel was not triggered. The
Customs officers testified they did not restrict the
accused’s freedom of movement in any way before or
during the incriminating statement. On the other hand,
the accused testified he felt he was constrained to
stay in the warehouse as the five Customs officers
conducted their search. The extradition judge found
the accused was not detained within the meaning of
s.10(b) of the Charter because the accused did not
establish he reasonably believed he was under
detention in the circumstances and noted the following
points:
•

•

•

•

•

during the search, agents occasionally requested
the accused move and assist in opening a drawer
and a safe
at no point did Customs officers advise the
accused he was free to leave nor that he was not
free to leave nor indicate that he was being
detained
the doors were not blocked and the officers were
all involved in searching the premises
the accused acknowledged that none of the
officers restricted his movements
the accused never sought clarification as to his
status with the officers

The accused appealed the extradition judge’s decision
to the BCCA arguing that the statement was obtained
in violation of his rights and therefore should be
excluded. Without this statement, it was argued, the
committal order of extradition was invalid; insufficient
grounds remained to justify the order. Although
Donald J.A. writing for the unanimous Court of Appeal
recognized the issue of detention was not an easy
question and acknowledged he may have come to a

Volume 2 Issue 1
January 2002

different conclusion on the issue, he could not say the
extradition judge was wrong. As a consequence, the
extradition judge’s finding was found to be reasonable
and the appeal was dismissed.
Complete case available at www.courts.gov.bc.ca.

NfldCA RULES PAT DOWN
SEARCH DURING TRAFFIC STOP
UNREASONABLE
R. v. Power, 2001 NFCA 50
Police officers stopped the accused
for crossing over the center line of
a highway. One of the officers
approached
the
accused
and
requested to see his driver’s licence,
insurance, and proof of ownership for the vehicle. No
alcohol, drugs, or weapons were visible nor was there
any odour of alcohol or drugs at this point. The accused
advised police the vehicle belonged to his mother,
produced proof of her ownership and proof of
insurance, but did not have his driver’s licence. The
police officer asked the accused to accompany him
back to the police cruiser; to check on his identity and
to determine whether there were any warrants. The
accused asked if he was under arrest and was told he
was not. Before entering the back seat of the police
car, the officer informed him he would be searched for
weapons. The accused said he had none and the officer
conducted a pat down search. After feeling something
hard and something soft, the officer requested the
accused remove his jacket. The accused complied and
the officer found a packet of marihuana and a set of
scales in the lining of the jacket. The accused was
arrested and advised of his right to counsel.
The accused was charged with possession of a
controlled substance for the purpose of trafficking
and was acquitted at trial. The trial judge found that
there had been a breach of the accused’s s.8 Charter
right and possibly a s.10(a) breach. The judge
concluded that the accused had not been told of the
reason why he was detained and that the officer had
decided to search the accused on the way to the police
car; not because his presence in the police car was
necessary. The evidence was thus excluded.
The Crown appealed the conviction arguing that as long
as there was a lawful detention, the search was
authorized by the common law power to search incident

9

to a lawful detention and no additional reasons were
necessary to justify the search. Furthermore, the
Crown alleged that there was an “implied acquiescence
to the search”. The unanimous Newfoundland Court of
Appeal noted that the Crown was erroneously equating
the common law power of search incident to arrest
with the powers available on the mere detention of a
suspect. The Court found the accused, although initially
detained legally, had been subject to an unreasonable
search. Gushue J.A. for the Court:
[T]here was no reason to remove him from his vehicle or
to place him in the police car, or, for that matter, to
search him. The sole issue was the checking of whether
the [accused] held a valid driver’s permit, which
information could have been obtained with the [accused]
remaining in his own vehicle. There was no legitimate
suspicion of any criminal activity on the part of the
[accused] and thus the police officer had no statutory
authority to arrest him, nor any grounds to obtain a
warrant to carry out a search. Nor was there any
suspicion he carried a weapon. Even the [accused’s]
omission to have on his person his driver’s permit was
remediable by production of the licence at a police
station within 48 hours (s.49(2) Highway Traffic Act).
While the [accused] did not object to the search,
obviously because he thought he had no choice, he
certainly gave no informed consent to it. It was, as
stated, a warrantless search and, being so, the onus was
on the Crown to establish that it was reasonable… It is
clear that in this matter, the search cannot be said to
have been incident to the detention and there were no
circumstances
which
would
have
made
the
search…justifiable or reasonable. (references omitted)

And further, in rejecting the Crown’s argument that
the evidence should none-the-less be admitted under
s.24(2) of the Charter:
… one cannot help but feel that the stated reason for the
search, namely to look for weapons, was little more than a
ruse to permit the police officer to act on an unfounded
suspicion that the [accused] was carrying drugs and/or
drug paraphernalia. If such a course of action by police
officers were allowed, there would never be any reason
for a warrant to be obtained. A driver being stopped for
the most minor of Highway Traffic Act infractions could
be removed from his or her vehicle and searched.
Obviously, the courts cannot sanction or condone such
conduct. (emphasis added)

The Crown’s appeal was dismissed and the acquittal
upheld.

Volume 2 Issue 1
January 2002

UNTESTED INFORMANT &
OTHER CIRCUMSTANCES
PROVIDE REASONABLE
GROUNDS
R. v. Beal, 2001 MBQB 297
A Winnipeg police Sergeant received
information from an informant that
two males were selling cocaine from
a suite for $100 a gram, mostly to
the gay community. The first names
of the suspects and descriptions (Arthur: Asian male,
25 years, slim, 5’10, dark hair and Patrick: white male,
25 years, slim, blonde hair), as well as the address of
the apartment unit were provided. The information also
reported that the two males delivered cocaine in a red
BMW convertible with a Manitoba licence plate, which
was also provided to police. The informant stated he
had observed the males sell cocaine on only one
occasion, which was within 24 hours of the informant
providing the information. Police determined that the
registered owner of the vehicle (Chin Hang Ng) resided
at the suite address provided by the informant and the
city telephone directory also indicated a listing for an
Arthur Ng at the suite.
The Sergeant briefed other members of the
department and several of them set out to conduct
surveillance with respect to the information. The
Sergeant and his partner went to the apartment
building where they located the BMW and subsequently
observed a female and a male (white with blonde hair)
walk to and enter the vehicle. With the female driving,
police followed the vehicle for a short distance where
it stopped in front of another apartment building. The
female driver left the vehicle, entered the apartment
building, and returned within 3-5 minutes. As the
vehicle departed, the Sergeant determined that the
vehicle should be stopped and the occupants arrested;
he instructed the other members of his surveillance
team to participate. As a result, the vehicle was boxed
in by the police surveillance team. The Sergeant
proceeded to the driver’s side, opened the door,
commanded the female driver to exit, and arrested
her. The Sergeant’s partner went to the passenger’s
side, opened the door, pulled the accused from the
vehicle, placed him on the ground, and handcuffed him.
In the course of the accused’s removal from the
vehicle, a black bag came out and fell about 2 feet

10

from the accused and was seized by police. The
fundamental issue at trial was whether the arrest was
lawful and whether the seizure of the bag was
incidental to arrest.

Validity of the Arrest
The Sergeant testified that he made the decision to
arrest the accused based on the information he had
and his extensive experience. As a consequence, the
officer believed the vehicle was being used to deliver
cocaine (an indictable offence) to an apartment. In
assessing whether the officer had reasonable grounds,
MacInnes J. of the Manitoba Court of Queen’s Bench
defined reasonable grounds in these terms:
A peace officer who arrests without warrant must
subjectively have reasonable and probable grounds on
which to base the arrest and, in addition, those grounds
must be justifiable from an objective point of view, i.e., a
reasonable person placed in the position of the officer
must be able to conclude that there were indeed
reasonable and probable ground for the arrest.

In finding that the officer had reasonable grounds and
the subsequent arrest lawful, the Court considered the
following three criteria in assessing the information:
1.
2.
3.

was the information compelling?
was the source credible?
was the information corroborated?

The Court found the information offered much detail;
it named and described two sellers, it provided an
exact address, it gave the description and licence
number of the alleged courier vehicle, the price of
cocaine, the market sold to, and the information was
provided not by one who heard about the operation or
through rumor, but by a person who had actually seen a
sale by the named people in the suite within the
preceding 24 hours. Although the informant was
untested (which sometimes may be fatal), the police
corroborated a number of facts; the registered owner
of the vehicle (Ng) resided at the apartment, the
telephone directory indicated Arthur Ng lived at the
suite, and police attended at the apartment building
observing the suspect vehicle parked there. Prior to
the arrest the police observed a white male with
blonde hair exit the apartment building and enter the
vehicle, the vehicle was driven only a short distance
from the apartment building within the gay community,
and the police observed the vehicle drive in front of an
apartment building, the driver exit, enter the
apartment building, and return within minutes.

Volume 2 Issue 1
January 2002

Since the arrest was based on reasonable grounds and
lawful, the black bag and its contents which came out
of the vehicle concurrent with the arrest was properly
seized as an incident to arrest. Furthermore, the fact
that the female resided in the apartment building in
which the vehicle had driven to is of no consequence
since “information learned after the arrest is
irrelevant to a determination” of whether reasonable
grounds existed.

CHANGING MIND AFTER
CONSULTING COUNSEL OF NO
CONSEQUENCE: REFUSAL
COMPLETE
R. v. McKeen,
(2001) 151 CCC (3d) 449 (NSCA)
A police officer responding to a
complaint of an impaired driver and
a fight between family members
arrived on scene to find the accused
and another man standing near the
driver’s door of a van “arm locked” and involved in a
confrontation. The accused was “notably intoxicated”,
upset, and yelling with slurred speech. The officer was
told that the accused was drunk, had moved the van,
and that the people were trying to prevent the accused
from driving. The officer detained the accused who
became physically and verbally abusive which
necessitated handcuffing. As the officer led the
accused to the police car, he provided a “quick Charter
warning” from memory. The officer locked the accused
in the rear of the police car for at least 20 minutes
while he spoke to witnesses.
After completing the on site investigation and because
the accused was “causing quite a stir” in the back seat,
the officer drove a few hundred feet from the house,
stopped on the roadside, and read the complete
Charter warning from a card indicating the accused was
under investigation for impaired driving and causing a
disturbance. When asked if he understood, the accused
pretended he did not understand English and spoke in
German. The officer also advised the accused of his
right to silence. When asked if he wished to contact a
lawyer the accused would not acknowledge that he
understood and kept speaking German. The officer
read the right to counsel advice at least three times.
Next, the officer read the breath demand and

11

explained the consequences of refusing. The accused
refused, protesting he was not behind the wheel of any
vehicle.
The accused was taken to the cells at the detachment
and the officer assisted the accused in arranging
telephone access to a lawyer. Following the call, the
accused told the officer he changed his mind and now
wished to provide a sample of breath. The officer
explained to the accused that he had already accepted
the refusal. The accused was convicted at trial of
refusing to provide a breath sample and appealed his
conviction in part on the basis that his s.10(b) Charter
right to counsel without delay was violated; he was not
advised of his right to counsel after the demand was
made and he was not provided the opportunity to speak
to counsel before his refusal was accepted.
In dismissing the accused’s appeal, the majority (2:1)
of the Nova Scotia Court of Appeal found the accused
had been provided one brief and three full Charter
warnings prior to the breathalyzer demand. The
demand was directly related to the investigation that
the officer told the accused was occurring and arose
immediately following the officer’s inquiries. The
jeopardy facing the accused at the time the demand
arose did not change significantly from that which the
officer was initially investigating and thus did not
trigger an additional duty upon the officer to further
advise the accused of his right to counsel. In addition,
the accused had at no time given any indication that he
wished to exercise his right to counsel up to the point
of refusal. Had the accused expressed such a desire,
the police would have been required to provide the
accused a reasonable opportunity to exercise the right
and to cease eliciting a response from the accused to
the breath demand until that opportunity had been
provided. The absence of a telephone at the roadside
where the demand was taking place was irrelevant. The
accused “had chosen, of his own free will, to ignore
repeated opportunities to consult counsel, and he had
refused to take the breathalyzer test”. The fact the
officer later asked the accused at the detachment if
he wanted to contact a lawyer64 had nothing to do with
the breath demand and “did not revive a right” that the
accused had previously refused to exercise. The
evidence of the refusal was admissible.

POLICE ENTITLED TO
QUESTION WITNESS W/O
ADVISING OF COUNSEL
R.v. D.E.M.,
(2001) 156 CCC (3d) 239 (ManCA)
The accused drove her car to attend
a drinking party at her brother’s and
his then partner’s residence. While
at the party, the accused brought up
the sexual assault of her brother’s
and his partner’s three-year-old daughter by a man
named Vallieres, which angered people at the party
including the accused. The people at the party felt
they should find Vallieres and scare him. The accused,
in company her three co-accused, drove from the party
to the rooming house where Vallieres resided. At the
rooming house, Vallieres was located and severely
assaulted. The accused and her companions then fled
the rooming house.
Two police officers in the area stopped at a pay phone
to speak with the accused who had been in the process
of calling the police to report the assault. The accused
described the condition of Vallieres and reported she
had been present when he was beaten. The officers
asked the accused to accompany then to Vallieres’
rooming house. During the drive, the accused described
the circumstances of the beating to the officers.
When they arrived at the rooming house where the
beating occurred, one officer remained with the
accused while the second officer went into the rooming
house. When this officer returned to the police car,
the accused was again asked what happened but this
time gave a different version of the events of the
beating. At 7:13 am, the officer cautioned the accused
that she may be charged with aggravated assault and
told her not to say anything. Furthermore, she was told
she was a material witness and that she would have to
accompany the officers to the police station. Upon
arrival at the police station she was placed in a locked
interview room and told the officers that she “ain’t
saying nothing”. At 8:30 am the accused was advised of
her right to counsel and expressed a desire to contact
counsel, however she was not given the opportunity to
contact the lawyer of her choice. At 8:34 am she
advised the officer that she did not want to talk about
the matter.

64

The officer testified it was always his practice to ask an arrestee he brings to
the detachment cells if they wished to contact a lawyer.

Volume 2 Issue 1
January 2002

12

The accused remained in the interview room until 4:44
pm at which time a second team of officers took over
the interviewing process. The accused declined to talk
”on the record” or provide a formal statement
Approximately 20-30 minutes later the accused was
permitted to leave the police station.
Nine days later, two different police officers now
investigating the incident located the accused at a
Legion hall (in a different city than the assault
occurred) and asked her to accompany them to the
local RCMP detachment. Initially the accused
expressed reluctance to go but eventually did agree to
accompany the officers. At no time did the officers
tell the accused that she was or was not obligated to
go with them for questioning. After interviewing her
for approximately 47 minutes the accused asked if she
needed a lawyer, at which time the interview was
terminated and she was arrested and advised of her
right to counsel under s.10(b) of the Charter, and
provided the standard caution. She immediately
requested to speak to her lawyer.
At her trial on the charges of aggravated assault and
break and enter, the trial judge found the accused’s
rights during the first interview had been violated
because police had ignored both her requests to remain
silent and to contact legal counsel. All statements were
ruled inadmissible as evidence. However, the trial judge
found that the accused rights to counsel were not
violated during the second interview. The officer had
not detained the accused until she had been arrested.
Prior to the arrest, the accused had been requested to
accompany the officers and was regarded solely as a
material witness. It was not until the police regarded
her as a suspect (when her story changed yet another
time) during this second interview that her s.10(b)
rights were triggered. All statements made prior to
the arrest were admissible.
The accused appealed to the Manitoba Court of Appeal
arguing that the request by police to accompany them
to the RCMP detachment must be examined against the
backdrop of the earlier interview where the accused’s
rights were clearly violated. The accused submitted
that she was “psychologically detained” because she
perceived she was obligated to comply with all requests
made by the police at the Legion; “the “demand or
direction” to accompany the police was followed by her
acquiescence because she reasonably believed she had
no choice to do otherwise”.

Volume 2 Issue 1
January 2002

In dismissing the accused appeal, the Manitoba Court
of Appeal noted that not every attendance of an
individual at a police station will result in a detention.
In this case, the accused was not considered a suspect
until part way through the subsequent interview:
It is unrealistic to expect the police to caution each
person they interview in an attempt to obtain information
about a crime. It is also unrealistic to expect the police
to caution a witness each time they interview her, as long
as she is still viewed as a witness and not a suspect.

The onus in proving a breach of their Charter rights
lies with the accused, who in this case did not testify.
There was no evidence of the accused’s state of mind
or her reasons for accompanying the police to the
RCMP detachment from the Legion. Furthermore, the
Court rejected the argument that because the accused
was detained on the first occasion and subsequently
released that the second contact amounted to an
immediate detention:
There is no concept in law of “once detained, always
detained,” which concept the [accused] invites this court
to accept.

The statements during the final interview prior to the
caution of the accused were admissible.

RECKLESSNESS INSUFFICIENT
SUBSTITUTE FOR KNOWLEDGE
OF PSP OFFENCE
R.v. Vinokurov, 2001 ABCA 113
The accused, who was the manager
of a pawn shop, was convicted of 7
counts of possession of stolen
property in receiving property from
a customer who stole the items from
a series of break and enters. The accused completed all
the required paperwork respecting the property
(pawnshop sheets forwarded to police), made inquiries
with his mother (the owner of the pawnshop) to
determine whether he should purchase the
merchandise. and denied knowing the items were stolen.
The customer had produced his birth certificate and
Corrections Canada release card as identification to
the accused.
The Alberta Court of Appeal (2:1) quashed the
accused’s convictions and ordered a new trial. To prove
the offence of possession of stolen property, the

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Crown has the burden of proving the accused knew the
property was stolen. One such way of proving this mens
rea component is by the doctrine of willful blindness
because it is the equivalent of actual knowledge. In
citing R. v. Jorgensen, [1995] 4 S.C.R. 55), the test for
willful blindness was expressed as follows:
A finding of willful blindness involves an affirmative
answer to the question: Did the accused shut his eyes
because he knew or strongly suspected that looking would
fix him with knowledge?

In willful blindness cases the person chooses to remain
ignorant because they do not wish to know the truth.
Recklessness, the standard the trial judge used, is a
reasonable person standard not equivalent to actual
knowledge and therefore is insufficient in satisfying
the mens rea requirement. Recklessness presupposes
knowledge and arises when a person persists in their
conduct knowing that there is a risk of danger; they
see the risk but take the chance. In imputing
knowledge on the basis of recklessness and not willful
blindness, the trial judge erred.

The Crown called a witness who testified that he was
walking past the accused and his lawyer in an open area
on the day of the preliminary hearing and heard the
accused say, “I had a gun, but I didn’t point it”. It was
acknowledged that the witness only heard part of the
conversation and could not give the context of the
utterance. The accused denied having a gun or telling
his lawyer he had one; the lawyer also denied the
conversation. The defence alleged police brutality and
the possible planting of evidence.
The accused was convicted at the end of his fourth
trial on these charges. The accused appealed arguing
the threshold test of reliability was not met because
the meaning of the overheard conversation could not
be determined without its context and furthermore its
meaning is so speculative its prejudicial effect
outweighs its tenuous probative value. In agreeing with
the defence’s position, the unanimous Ontario Court of
Appeal found the context of spoken words can be
critical to its meaning:
Where an overheard utterance is known to have a verbal
context, but that context is itself unknown, it may be
impossible to know the meaning of the overheard words
or otherwise conclude that those words represent a
complete thought regardless of context. Even if the
overheard words can be said to have any relevance, where
their meaning is speculative and their probative value
therefore tenuous yet their prejudicial effect
substantial, the overheard words should be excluded.

Complete case at www.albertacourts.ca.

OVERHEARD CONVERSATION
BETWEEN LAWYER & CLIENT
INADMISSIBLE
R.v.Hunter,
(2001) Docket:C30902 (OntCA)
The Ontario Court of Appeal ruled
an overheard conversation by a
passerby between the accused and
his lawyer is inadmissible. The
accused had been charged with
attempted murder of a police officer, use of a firearm,
aggravated assault, and possession of a prohibited
weapon. It was alleged that the accused pulled out a
gun and attempted to shoot an officer after police
pursued him on foot following a disturbance outside a
restaurant in Toronto. The accused ran down a narrow
passageway, and when an officer shone his flashlight,
he saw the accused, crouched on his knees pointing a
gun at him. The officer heard a clicking noise, the gun
did not fire, and the accused again fled until he was
apprehended by an officer who applied a bear hug. The
gun was recovered from the accused but no
fingerprints were found on the gun.

Volume 2 Issue 1
January 2002

The Court provided two examples of how the accused’s
words could have been taken out of context and would
not constitute an admission:
•

“I could say I had a gun, but I didn’t point it, but I won’t
because it is not true”.

•

“What if the jury finds I had a gun but I didn’t point it-is
that aggravated assault?

The accused’s conviction was set aside and a stay of
proceedings was imposed because putting the accused
on trial for a fifth time would constitute an abuse of
process.
Editor’s Note: In addition to the number of trials the
accused was subject to, the Court used other factors
in deciding whether a stay of proceedings was the
appropriate remedy. Among these factors, the Court
noted that without the overheard evidence there was
little evidence to support the Crown’s case. In
particular, the Crown’s case relied heavily on the
evidence of the three plain-clothes officers involved.

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The Court highlighted several points concerning the
evidence of the police witnesses which were considered
in imposing the stay of proceedings; the evidence
included a chase of an armed man without calling for
backup, the officer who was fired at did not worn the
others of this, and the officer who finally approached
and grabbed the accused did so without his gun drawn
nor did he make any mention of seeing the gun in his
notes.
Complete case available at www.ontariocourts.on.ca.

NON-DISCLOSURE OF INITIAL
WARRANT REFUSAL NOT FATAL
R. v. Colbourne,
(2001) Docket:C33748 (OntCA)
The accused, in company his
passenger friend, was driving his
truck on a flat, dry two lane highway
during ideal driving conditions when
his truck suddenly veered into the
oncoming lane from behind the vehicle he was tailgating,
traveled over a gravel shoulder, across a ditch, became
airborne, and struck a tree killing his passenger. The
investigating officer attended the scene approximately
½ hour after the accident. The accused was receiving
medical attention and the officer detected a strong
odour of alcohol on the accused’s breath as well as
observing that the accused’s face was red and flushed.
The accused was transported by ambulance to the
hospital where samples of his blood were taken with his
consent for medical purposes; there was no police
involvement in the taking of these samples.
The officer arrived at the hospital and was told by the
attending physician that the accused was conscious and
could provide a breath sample. The officer briefly spoke
to the accused, confirmed his earlier observations
concerning the consumption of alcohol, arrested the
accused, and read him his right to counsel. The accused
asked that his oxygen mask be removed and the
attending physician told the officer he would have to
stop questioning the accused because further medical
treatment was necessary. An attempt to take a breath
sample was aborted because the breathalyzer technician
mistakenly believed it was not authorized under the
Criminal Code. Aware the blood samples had been taken,
the officer was directed by a supervisor to place a seal
on one of the blood samples to preserve continuity

Volume 2 Issue 1
January 2002

should the police decide to seize the sample. The
accused was allowed to leave the hospital with his wife.
The officer later made two search warrant applications
to seize the blood samples from the hospital. Two days
after the accident, the officer made his first
application but the warrant was refused. The officer
used a pre-printed form and was unaware of the practice
of attaching appendices setting out the reasonable
grounds. The officer put his grounds for belief within
the one-inch space on the preprinted form. The
information sworn was destroyed or lost prior to
disclosure and the officer could not recall exactly what
it stated. The officer understood the warrant was
refused because of the lack of detail in the information.
After speaking with a Crown lawyer and the JP who
refused the warrant, the officer prepared a second
information with more detail and the use of appendices.
Although the officer intended to swear this new
information before the JP who had refused the first
application, the courthouse was closed and the officer
swore the second information before a different JP
without any reference to the initial refusal. The warrant
was executed and the blood alcohol analysis along with
an expert interpretation showed the accused’s blood
alcohol level at the time of the accident to be between
232 and 255 mg%.
The accused was convicted at trial of impaired driving
causing death and appealed the conviction, among other
grounds, on the issue that the officer failed to disclose
to the second JP the initial refusal of the warrant. The
Ontario Court of Appeal held that such a non-disclosure
could invalidate a warrant, despite the existence of
reasonable grounds, if it was made for some improper
motive or was intended to mislead the JP. However,
since the reasons for the non-disclosure were not the
product of an improper motive or an attempt to mislead,
the “question becomes whether the second [JP] acting
judicially and having been advised of the prior refusal
could have issued the warrant”. In this case, the second
information contained much more detail than the first
and the disclosure of the initial refusal would not have
precluded the issuance of the warrant by the second JP.
Had the second information simply been a repeat of the
first information, the initial refusal would have played a
significant role in how the second JP exercised their
discretion. Since the informations were very different,
the appeal was dismissed.
Complete case available at www.ontariocourts.on.ca.

15

The trial judge found that the entry was necessary to
preserve evidence in exigent circumstances and that the
police action did not exceed the requirements of the
situation as no search occurred until a warrant was
issued. The drugs were found as a result of a search
authorized by a warrant. There was a real risk that
Mostell, who eluded the police, could have tipped off
those in the rooms. In my view, therefore, the finding of
exigent circumstances was supported by the evidence. I
can see no reason to disagree with the trial judge’s
disposition of this issue.

WARRANTLESS ENTRY TO
SECURE SCENE REASONABLE
R. v. Castro, Stinchcombe, & Ferretti,
2001 BCCA 507
The three accused were convicted
of drug offences as a result of a
reverse sting operation known as
Project Eye Spy. Police intercepted
telephone calls between the accused
suggesting they were organizing a drug deal at a hotel.
Police set up surveillance on the hotel and observed two
men who appeared to be keeping watch outside two
rooms (room 309 and 310) registered to the accused
Stinchcombe. At 11:30 pm the accused Castro and
Ferretti, carrying a brown bag, arrived and entered
room 309. About one hour later, Castro and Ferretti
left the room without the brown bag and were
arrested. Neither drugs nor large amounts of money
were found on them. At 2:40 am another man,
identified as Mostell, left the hotel room and was
followed by police, but they subsequently lost contact
with his vehicle. It was not known whether this man
left with any drugs or money. Although they did not
have a warrant, police decided to enter the two hotel
rooms fearing the occupants may have been alerted by
Mostell of the police presence and were either
destroying the evidence or barricading themselves in
the rooms. In room 309 police found two people and
Stinchcombe asleep in room 310. Police obtained a
search warrant and under the mattress in room 310
police found a kilogram of cocaine in a duct-taped
package. Stinchcombe was arrested and the other two
men provided evidence implicating the three accused.

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

Note-able Quote
“An angry person who curses a police officer will not be
condemned by people generally. The attitude will be
taken that such behaviour is understandable considering
the circumstances. Even if a person being arrested
strikes a police officer, onlookers would probably
consider it a natural response to being arrested. On the
other hand, if a police officer curses at someone or
strikes an individual in any other situation except
obvious self defence, it becomes an entirely different
matter. [The officer’s] uniform, [the officer’s] gun, and
the organization behind [the officer] provide certain
advantages that [the officer] brings into any
confrontation with others. Consequently, [the officer] is
required to act with restraint65”. Anne T. Romano

WEAPON ALERT
The switchblade lighter knife is spring-loaded and
opens and closes with the touch of a button. The
lighter is butane refillable and has an adjustable flame!

Although the British Columbia Court of Appeal ordered
a new trial on a disclosure issue, the Court rejected
Stinchcombe’s appeal that the drugs seized in the
search of the two adjoining hotel rooms should be
excluded because the initial entry to the rooms was
made without warrant. At para. 47, Donald J.A. for the
unanimous Court held:
It is important to note that the entry team secured the
scene but did not conduct a search. The search was
postponed until later that morning when a warrant was
issued. After a search the police found a kilogram of
cocaine under the mattress…

For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

And further, at para. 49:
65

“Transactional Analysis for Police Personnel” (1981) Anne T. Romano (M.A.),
Charles C. Thomas Publisher

Volume 2 Issue 1
January 2002

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