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

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

COPS REMAIN TOPS OF TRUSTED
JUSTICE PROFESSIONS
For the sixth year in a row, police
officers are more trusted by
Canadians than judges, lawyers, or
law makers. In a May 2007 Leger
Marketing
report
entitled
“Profession Barometer” (www.legermarket
ing.com), police officers were once again the most
trusted profession in the criminal justice system.
The report, which provides trust ratings for 23
professional occupations, saw police officers attain
an 84% trust rating, followed by judges at 74%,
lawyers at 52%, and politicians (law makers) at 15%.

Police Officers
Police officers improved by three
percentage points (+3%) on the trust
barometer over last year and are now at a
five year high. They are trusted most in
Atlantic Canada (87%), but least in
Alberta (80%). Ontario saw the greatest
gain (+7%) followed by British Columbia (+3%) and
Quebec (+2%). Alberta (-5%), the Prairies (-3%), and
the Atlantic Provinces (-2%) all saw police trust
ratings drop.

Judges
The trust rating for judges dropped
four percentage points (-4%) over last
year. Judges are trusted most in
British Columbia (77%), where their
rating jumped two percent (+2%) since
2006. However, their trust ratings dropped in all
other regions, including the Atlantic Provinces (-8%),
Quebec (-1%), Ontario (-4%), the Prairies (-11%) and
Alberta (-2%).

Volume 7 Issue 4
July/August 2007

Lawyers
Lawyers now sit at a 52% trust rating,
up four percent (+4%) over last year and
also, like police, sit at a five year high.
Lawyers are trusted most in Atlantic
Canada (57%), but least in British
Columbia (46%). They saw gains in all
regions (Atlantic Canada +5%, Quebec
+5%, Ontario +3%, the Prairies +7%,
Alberta +3%), except British Columbia where they
lost a single point (-1%).

Politicians (Law Makers)
Politicians have remained at the
bottom of the rankings for the fifth
straight year, with a 2007 trust rating
of 15%, up one point from 2006.
Politicians are trusted most in Alberta
(22%), but least in Quebec, Ontario, and British
Columbia, all at 14%. Politicians made gains in Alberta
(+7%), followed by the Prairies (+5%), Quebec (+4%),
and Ontario (+1%). There was no change in British
Columbia while the Atlantic Provinces dropped seven
percentage points (-7%).

An American Perspective
The Canadian experience is quite
similar to its neighbours to the
south. In an August 2006 Harris
Poll (www.harrisinteractive.com),
when U.S. adults were asked who they would trust to
tell the truth, police officers had a 76% trust rating
while judges sat at 70%, Members of Congress
(politicians) at 35% and lawyers at 27%. All of these
occupations saw an increase over a 2002 poll (police
officers +7%, judges +5%, and lawyers +3%), except
Members of Congress which remained unchanged.

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg

Reasonable Grounds Existed Despite
No Drug Transaction Seen

6

Digital Recording Ammeter Does Not
Breach Privacy Rights

11

Seatbelt Related Check Legitimate
Reason For Stop

12

Impact Of Forfeiture Considered In
Determining Sentence

16

Vatican Releases Drivers’ Ten
Commandments

19

Investigative Necessity Not Required
For Organized Crime Wiretaps

21

Vehicle Forfeiture Mandatory

22

No Privacy Interest In Shoes Removed
From Arrestee

29

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
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major and Legal Studies
minor at [university]. I
find your newsletter to be extremely
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and
contemporarily
contextual. I would be honoured and privileged if I
could be the recipient of the newsletter. I believe
that it will aid in my studies while remaining me
informed with many and dynamic processes of justice
and law.” - University Student, British Columbia
*********

Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes only
and are not to be construed as legal or other professional
advice. The opinions expressed are not necessarily the
opinions of the Justice Institute of British Columbia. “In
Service: 10-8” welcomes your comments on or
contributions to this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike Novakowski at
mnovakowski@jibc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police
officers across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
Police – Legal status, laws, etc. – Canada –
Cases – Periodicals. I. Justice Institute of British
Columbia. Police Academy. II. Title: In service,
10-8. III. Title: In service, ten - eight.

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and more to keep up to date and I appreciate the user
friendly format.” - Police Constable, Ontario
*********

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electronic subscription for 10-8...I find
your material helps guide the manner in
which I complete a report to Crown.” - Police
Constable, British Columbia
*********

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all I can say is WOW. I have been a
constable for approximately 6 years now.
I find your case law examples to be well laid out and
easy to read.” - Police Constable, Manitoba
*********

I am a cadet with the Atlantic Police
Academy and I just recently had a
chance to read your recent edition of In
Service...I found the articles very interesting and
helpful for me as a new recruit.” - Police Cadet,
Atlantic Police Academy
*********

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forward your publication to me. Thanks
and your efforts and commitments to
policing are certainly appreciated down here in
Ontario.” - Police Sergeant, Ontario
*********

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enjoyed reading it. Beyond being
enjoyable reading material, I find it
offers good case law references.” - RCMP Constable,
British Columbia

2

www.10-8.ca

Volume 7 Issue 4
July/August 2007

IN-SERVICE LEGAL ROAD TEST
The “In Service” Legal
Road Test is a simple
multiple
choice
quiz
designed to challenge your
understanding of the law.
Each question is based on a case featured in this issue.
See page 27 for the answers.
1. Wiretaps related to criminal organization offences
do not require the police to consider the failure of,
the likelihood of success, or the impracticability of
other investigative procedures.
(a) True
(b) False
2. Arbitrary vehicle stops under provincial traffic laws
infringe s.9 of the Charter but are saved by s.1
regardless of the reason for the stop.
(a) True
(b) False
3. Personal “offence-related property” seized pursuant
to the Controlled Drugs and Substances Act is
automatically forfeited if the person is convicted of
a designated substance offence.
(a) True
(b) False
4. Personal “offence-related property” seized pursuant
to the Criminal Code is automatically forfeited if the
person is convicted of an indictable offence.
(a) True
(b) False
5. An arrestee does not have a reasonable expectation
of privacy in the soles of his shoes seized by police
upon booking.
(a) True
(b) False

NEW RCMP COMMISSIONER
APPOINTED
On July 16, 2007 Mr. William J.S.
Elliot was appointed the 22nd
Commissioner of the Royal Canadian
Mounted Police.
He and his wife
Carolyn have four children.

Volume 7 Issue 4
July/August 2007

DANGEROUS DRIVER’s CAR
FORFEITED AS OFFENCE-RELATED
PROPERTY
R. v. Adamson, 2007 BCSC 745
The accused pled guilty to dangerous
driving causing bodily harm and refusing
to provide a breath sample in British
Columbia Supreme Court. She had been
drinking before she drove into one victim, dragging him
under her vehicle 88 feet and seriously injuring him. He
sustained a spiral fracture to his left femur and
punctured a lung. She then drove into a cyclist, injuring
him and shearing his bicycle in half. The cyclist
sustained a chipped vertebra, nerve damage, abrasions,
and short term memory loss. In addition to seeking a
jail sentence and a driving prohibition, the Crown
sought forfeiture of the accused’s vehicle she was
driving at the time of the offence, a 2002 Mercedes
Benz Kompressor valued at $26,000.
Section 490.1(1) of the Criminal Code requires a court
to order forfeiture of property when a person is
convicted of an indictable offence and the court is
satisfied, on a balance of probabilities, that the
property is offence-related property and an offence
was committed in relation to that property unless the
impact of the forfeiture would be disproportionate.
“Offence-related property” is property by means or in
respect of which an indictable offence is committed or
that is used in any manner in connection with the
commission of an indictable offence.
The accused argued that the offence-related property
provisions target the tools of the trade, attack the
means of the crime rather than its ends, and should be
limited to circumstances where there is an element of
deliberation, such as a vehicle used to commit a bank
robbery.
Justice Loo found the forfeiture provisions to be
extremely broad and encompassed the vehicle driven in
this case. “There is no dispute that [the accused’s]
vehicle is offence-related property,” she said. “It is
impossible to commit the offence of dangerous driving
without a vehicle.” She continued:
Once the Crown has established that the vehicle is
offence-related property…the onus shifts to [the
accused] to establish that the impact of the

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3

forfeiture would be disproportionate based on
the criteria in s.490.41(3). That is, [she] must
establish that an order of forfeiture of the
vehicle would be disproportionate to the nature
and gravity of the offence, the circumstances
surrounding the commission of the offence, and
her criminal record, if any. [para. 56]

In this case the judge found the order for the
forfeiture of the vehicle was not disproportionate
and ordered it forfeited.
Complete case available at www.provincialcourt.bc.ca

NON SAFETY RELATED USE OF
FLASHLIGHT UNREASONABLE
R. v. Grunwald, 2007 BCSC 767

grounds, that his rights under s.8 of the Charter had
been breached when the police used a powerful
flashlight to look through the tinted glass and into
the cargo area of the pick-up and the evidence
should be excluded under s.24(2). The Crown, on the
other hand, argued the officer’s conduct was not a
search at all as recognized in s.8; the marihuana was
in plain view and the arrest was lawful.
In assessing whether a breach of s.8 had occurred
Justice Joyce made a number of findings, including:
• The officer had no safety concerns when he
shone his flashlight into the canopy;
• The officer could not see into the cargo area
with his naked eye, unaided by his flashlight;
• The officer did not have reasonable grounds to
arrest the accused before he looked into the
canopy based only on the smell of marihuana.

Two police officers set up a roadblock
for the purposes of stopping and
Using the totality of the circumstances test,
checking all vehicles for Motor Vehicle
Justice Joyce found the accused did have a
Act infractions. The accused, driving a
reasonable expectation of privacy in the cargo area
pick-up truck with an extended cab and a canopy
of his truck that “was covered by the closed canopy
fitted with dark, tinted windows, was stopped in the
and blocked from public view by the darkly tinted
roadblock. While one officer checked driving and
windows.” He stated:
insurance documents the second officer checked the
[The accused] was present when the
sticker on the licence plate. While
doing so, he smelled an odour of
“In summary, I find that search was carried out. It was
carried out with regard to the
marihuana but did not believe he had visually searching the cargo
interior of his motor vehicle of
enough grounds to arrest on that
area by using a powerful which he had possession and control.
basis. After confirming the decal was
flashlight to penetrate the He had covered the cargo area of his
valid, the officer shone his flashlight
truck with a canopy that had a door
through the side tinted canopy window tinted windows constituted an that closed and windows that were
and saw a number of garbage bags. unreasonable search contrary tinted so as to preclude viewing in
normal conditions without the use of
to s. 8 of the Charter.”
One of the bags was partly opened and
a flashlight. It cannot be said that
he could see it contained clear Ziploc
the
contents
of the cargo area were on public
bags holding marihuana.
The officer went up to the accused and told him he
was under arrest for possession of a controlled
substance and directed him to park his vehicle. He
pulled over and stopped, but took off when the
officers approached. After a short pursuit the
accused was arrested. His truck was searched and
police found marihuana, $390,600 in cash, cell
phones, a pager, calculators, and notebooks
containing phone numbers and calculations.
At trial in British Columbia Supreme Court on a
charge of possessing marihuana for the purpose of
trafficking, the accused argued, among other

4

view. [The accused] had taken steps to hide them
from view. [The accused] had the ability to
regulate access to the cargo area and to exclude
others from it. While the technique that [the
officer] used to view the interior was less
intrusive than physically entering into the space
over which the owner sought privacy, he had to
resort to using a high powered flashlight,
described as being equivalent to a car’s headlight,
in order to pierce the veil created by the darkly
tinted windows. In my view there was an intrusion
into [the accused’s] territorial privacy. The
technology used by the police, while obviously not
as intrusive or penetrating as x-ray technology
was not the same as looking through a clear glass

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Volume 7 Issue 4
July/August 2007

window. It was only by using a device that [the
officer] could look through the visual barrier that
he had erected between his private space and the
public.
………
In my view, the present case is an example of the
use of technology, albeit at a relatively low level,
to intrude on the privacy of an individual.
[references omitted, paras. 31-32]

Justice Joyce also found the use of the flashlight
was distinguishable from cases where courts have
allowed officers to shine flashlights into vehicles
for officer safety. He wrote:
In the case at bar, the use of the flashlight was
not incidental to the check stop and was not used
for the purpose of employing officer safety. [The
officer checking the accused’s licence and
insurance] found it unnecessary to use his
flashlight to perform a visual inspection of the
interior of the cab for officer safety. He had
done that visual inspection and assured himself
there were no safety concerns. He was nearly
finished with his inquiries related to the purpose
for which he had detained [the accused], i.e. to
ensure a valid driver’s license, insurance, etc. He
had only to run the information through the police
data systems before [the accused] could be on his
way. After [the arresting officer] had checked
the insurance tag on the licence plate any lawful
duties he had to perform in connection with the
purpose for the detention had come to an end. He
then proceeded to use his flashlight to undertake
a search, not as a proper search incident to the
check stop, but as part of a criminal investigation.
[para. 37]

And further:
The search was not incidental to the lawful check
stop, nor was it otherwise authorized by law.
There were no exigent circumstances. I conclude
that the initial visual search with the flashlight
was unreasonable and contrary to s. 8 of the
Charter. As a result, the arrest was also unlawful
because the grounds were dependent upon a
Charter violation, and the subsequent physical
search of the interior of the vehicle was also
unlawful and unreasonable. [para. 41]

The evidence, however, was ruled admissible under
s.24(2). Although visually searching the cargo area
by using a powerful flashlight to penetrate the
tinted windows constituted an unreasonable search

Volume 7 Issue 4
July/August 2007

contrary to s. 8 of the Charter, the subsequent
police conduct flowed naturally and reasonably from
the discovery of the marihuana. The totality of the
breach was not so serious so as to warrant excluding
the evidence.
Complete case available at www.courts.gov.bc.ca

ROOFTOP VENT SNIFF
VIOLATES s.8 CHARTER
R. v. DiPalma, 2007 BCSC 536
Police received a complaint of a
suspected marihuana grow operation
at a business complex consisting of
three buildings and a total of 55
strata units. Vehicle entry to the complex was
controlled by a gate that was open in the day but
closed at night and required a key fob to open. An
officer met with the complainant, who was a member
of the strata council, and was shown two black
garbage bags containing marihuana clones and shake
that was found in a dumpster at the complex. The
officer asked if he could go on the roof of one of the
buildings to smell the vents. A ladder was obtained,
and the officer went onto the roof and checked the
vents coming from each of the strata units. An odour
of marihuana was detected coming from two vents
and a search warrant was obtained for unit 107.
Surveillance was set up on the unit and the accused
was seen to enter and exit it. He was pulled over a
few minutes later and keys were found on him that
were used to open the unit when police executed the
warrant. Police found 355 marihuana plants and
extensive equipment used in the operation. The
accused was charged with producing marihuana.
During a voir dire in British Columbia Supreme Court
the officer testified he never considered getting a
warrant and believed he had lawful permission to
climb onto the roof from the strata council member
and detect the odour from the vents. He assumed
the complainant had the authority to permit him
access to the roof.
The Crown argued that the accused did not have a
reasonable expectation of privacy in the roof area
above the strata unit and therefore could not
contest the lawfulness of the search. The accused

www.10-8.ca

5

was not present during the search, he never
exercised control over the roof, did not have
exclusive right to determine who had access, and
each roof unit was common property. The strata
council was responsible for maintaining and repairing
the roof and had the right to access it. The accused
submitted the roof was not common property but
part of his strata lot.
Justice Ehrcke agreed with the accused. “The fact
that a limited number of other persons may have a
right of access to the roof for the specific purpose
of maintenance and repair does not eliminate the
owner’s claim of a privacy interest,” he said. He
continued:
…I find that the owner of each strata lot would
have a reasonable expectation of privacy in the
roof area of their unit. The fact that the roof of
[the accused’s] unit could be accessed by the
strata council for purposes of repair and
maintenance does not detract from the fact that
he would have a reasonable expectation that other
persons would not be permitted access to his roof
for purposes unrelated to repair and maintenance.
Accordingly, I find that [accused] does have
standing to challenge the lawfulness of the police
search of his roof.

The Crown was unable to establish the search was
nonetheless reasonable. Justice Ehrecke found
there was “no basis for concluding that an individual
strata council member would have the authority to
grant the police access to the roof for the purpose
of carrying out a police search.” Nor was there
evidence respecting the identity of the complainant.
The complainant’s statement to police on this point
was hearsay and could not be used to prove the truth
of that statement. Thus, the accused’s rights under
s.8 of the Charter were breached.
The evidence, however, was admissible under
s.24(2). The breach was not highly serious and the
police acted in good faith. They did not realize their
conduct was unlawful and believed they had valid
consent to search. Further, the charges were
serious and the evidence was crucial to the Crown’s
case. The exclusion of evidence would be more
damaging on the repute of the administration of
justice that its admission. The accused was
convicted of both charges.
Complete case available at www.courts.gov.bc.ca

6

LEGALLY SPEAKING:
Reasonable Grounds: Impaired Driving
“As to the objective components [of
reasonable grounds], I am satisfied that
the appeal court judge erred in assessing
the various indicia on which the constable
formed his belief in isolation, rejecting
each on the grounds of consistency with other
explanations. The indicia must be evaluated in total.
Specifically the appeal court judge reviewed the [accused’s]
submissions that each of these indicia were equivocal or
consistent with the behaviour of a driver who was not
impaired. Although acknowledging that the circumstances
must be taken together, in effect he weighed them
separately, and concluded that the totality of the evidence
did not overcome the equivocal nature of the parts. In
doing so he also omitted reference to the [accused’s] failure
to respond to the flashing lights of the following police car
while driving five city blocks.” - Nova Scotia Court of Appeal
Justice Chipman R. v. Andrea,
Andrea, 2004 NSCA 130

REASONABLE GROUNDS
EXISTED DESPITE NO DRUG
TRANSACTION SEEN
R. v. Stebeleski & Santangelo,
2007 MBCA 1
A police sergeant investigating a
supplier of drugs named Silva received
information from an anonymous source
that traffickers would place an order
to Silva using a coded message on his pager. A dial
number recorder warrant was obtained and Silva’s
pager was monitored. The messages were decoded
and police were able to determine the amount of
drugs ordered and when the delivery would take
place. The police intercepted a message that
informed them the accused Stebeleski would meet
Silva at 1:00 pm to purchase five ounces of powdered
cocaine and six ounces of crack.
The sergeant instructed his officers to stop
Stebeleski’s vehicle immediately after the vehicle
met with Silva and arrest the occupants. Shortly
after 1:00 pm the vehicles met and then departed in
different directions. However, no actual transaction
was seen. Stebeleski was driving and the accused

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Volume 7 Issue 4
July/August 2007

Santangelo was a passenger. Both were arrested and
placed in the back of a police vehicle. Santangelo had
a pager and a substantial amount of cash while
Stebeleski had a cell phone and cash. A brown paper
bag was found resting between the driver’s seat and
the centre console containing five ounces of
powdered cocaine and six ounces of crack. Another
cell phone and two score sheets were also found in
the vehicle. The vehicle was searched further at
police headquarters and more cocaine and a cell
phone charger was located.
At trial in Manitoba Court the accuseds were
convicted of possessing cocaine for the purpose of
trafficking. The trial judge concluded the police had
reasonable grounds to make the arrest and the
search of the vehicle without a warrant did not
violate s.8 of the Charter. Both accuseds appealed
to the Manitoba Court of Appeal arguing, in part,
that their arrests and incidental searches were
illegal because the police did not see an actual
transaction take place and therefore did not have
reasonable grounds to conclude an offence had
occurred. It was thus contended that the physical
evidence should have been excluded.
Justice Huband, authoring the opinion of the Court,
first noted that since the sergeant gave the order
to arrest and search he would need the reasonable
grounds to believe the accused committed the
indictable offence of possessing cocaine for the
purpose of trafficking. In holding that the sergeant
did have reasonable grounds, Justice Huband stated:
[The sergeant] was confident that the occupants
of the vehicle registered to Stebeleski, who
turned out to be Stebeleski and Santangelo, would
be found with cocaine as a consequence of a
transaction with Silva. Thus, [the sergeant]
ordered their arrest and a search of the vehicle
incidental to the arrest. His confidence was well
placed:
(1) Silva was a known drug dealer.
(2) Silva received coded messages from
purchasers on a pager. Police authorities
were able to intercept messages on the pager.
(3) The police had broken the code used in pager
messages. They were able to identify orders
for the supply of drugs emanating from a
vehicle registered to Stebeleski.
(4) ... a pager intercept informed [the sergeant]
that the occupant or occupants of the

Volume 7 Issue 4
July/August 2007

Stebeleski vehicle wished to meet with Silva
at 1:00 p.m. to purchase a quantity of drugs.
(5) A few minutes after 1:00 p.m., a meeting did
take place. The passenger in the Stebeleski
vehicle is first to engage Silva in conversation
and is joined by the driver. At the conclusion
of an 18-minute meeting with Silva, the
Stebeleski vehicle and the vehicle driven by
Silva depart in opposite directions.
(6) The passenger in the Stebeleski vehicle has
the same general appearance as a man seen
meeting with Silva and suspected of
purchasing drugs from him in the month of
August.
In my view, the trial judge was fully justified in
concluding that [the sergeant] had reasonable
grounds to believe that a transaction had taken
place and to order the arrest and the incidental
search…. [paras. 14-15]

The accuseds’ conviction appeals were dismissed.
Complete case available at www.canlii.org

TELEWARRANT CRITERIA
REQUIRES COMMON SENSE
APPROACH
R. v. Cam & Phun, 2007 BCPC 0038
Police received a report of electricity
theft from BC Hydro and launched an
investigation. A search warrant was
subsequently obtained and submitted
by telecommunication to a justice of the peace. The
Information to Obtain said the officer called the
Surrey Provincial Courthouse but was told there was
no justice of the peace available. He said it was
impractical to attend the Burnaby Justice Centre
from the Surrey detachment because of distance
(25 km), time (45 minutes each way), and manpower
considerations (limited resources available). Police
found 622 marihuana plants in the basement of the
premises and the accuseds were charged with
marihuana production and possession for the purpose
of trafficking.
Section 487.1 of the Criminal Code allows a peace
officer who believes that an indictable offence has
been committed and that it would be impracticable
to appear personally before a justice to make
application for a warrant by means of

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7

telecommunication. Under s.487.1(4) an information
submitted by telephone or other means of
telecommunication must include a statement of the
circumstances that make it impracticable for the
peace officer to appear personally before a justice.

POLICE OFFICER NOT DUTY
BOUND TO PROVIDE PHONE
BOOK IN CIRCUMSTANCES

During a voir dire in British Columbia Provincial Court
the accused attacked the search warrant on a
number of grounds, including that it was not
impracticable for the police to attend in person.
Judge Bowden, however, found it was impracticable
for the officer to appear personally before a justice
of the peace. He said:

The accused was stopped by police for
speeding
and
was
subsequently
arrested for impaired driving. He was
read his Charter rights and given a
demand for breath samples. On arrival at the police
station, the accused tried but was unsuccessful in
contacting his lawyer of choice. He was told duty
counsel was available and the on-call duty counsel
was contacted by phone. The phone was given to the
accused and the officer left the room. Two breath
samples were subsequently obtained with readings of
140mg%.

[I]t is my view that travelling 28 kilometres from
the Surrey detachment to the Burnaby justice
centre would also be impracticable. From a
commonsense standpoint, once it has been
established by the police officer that a justice of
the peace is not available at the Surrey
courthouse, then the impracticability of a
personal appearance is established because of
the distance and travel time necessary for a
personal appearance in Burnaby. Furthermore, I
am not to substitute my view for that of the
justice of the peace who issued the warrant and
based on the reasons stated by [the officer], the
justice of the peace could have properly issued a
telewarrant.

Section 487.1 had been complied with and there was
no breach. The evidence was admissible.
Complete case available at www.provincialcourt.bc.ca

FAMILIAR FRENCH PHRASES:
“voir dire”-“to speak the truth”. A trial within a trial
to decide a particular issue. A hearing which a judge
conducts in the absence of the jury to determine if
evidence is admissible or some other matter relating
to a trial. For example, if the prosecution seeks to
admit a confession of the accused, the court must
conduct a voir dire to determine if the confession was
obtained voluntarily.

R. v. Chase, 2007 NBCA 39

At trial in New Brunswick Provincial Court the
accused was convicted of operating a motor vehicle
with a blood alcohol content over 80mg%. He
appealed to the New Brunswick Court of Queen’s
Bench arguing his s.10(b) Charter rights were
violated because the police did not provide him with
a copy of the telephone directory but instead called
duty counsel for him. Justice Garnett, however,
disagreed. She ruled that the accused chose to
speak to duty counsel, took the breathalyser test
without protest, and did not testify on the voir dire.
The accused’s appeal was dismissed.
The accused then appealed to the New Brunswick
Court of Appeal arguing the implementational duties
on a police officer under s.10(b) were breached
because the police officer, not the accused, dialled
the number of the on-call legal aid lawyer and did not
provide a copy of the white and yellow pages. In a
unanimous judgment the Court dismissed the
application for appeal. There was no evidence the
accused was dissatisfied with the officer’s conduct
or that he would have done something different
from what he did.
Complete case available at www.canlii.org

Did you know that the Supreme Court of Canada recently ruled that a roadblock, set up by
police within minutes of receiving a 911 call indicating that a number of persons were openly
displaying handguns in a strip club’s parking lot, was constitutional? see page 34!!!
8

www.10-8.ca

Volume 7 Issue 4
July/August 2007

ROOM-TO-ROOM SEARCH FOR
OCCUPANTS LAWFUL
R. v. Chan, 2007 BCPC 39
At about 10:00 pm police officers were
dispatched to a report that two males
with a long pole were cutting wires in
front of a residence. No address was
provided but the house was described. Police
attended and found a house with a cut wire, hanging
down from the side of the house. One officer, using
a flashlight, went to the back of the house looking
for signs of forced entry. None were found so police
went to the front door and rang the doorbell,
wanting to ensure the occupants were safe and had
the right to be in the house.

to investigate the suspected marihuana grow
operation. They should have obtained informed
consent to enter the residence and advised the
accused of his right to counsel under s.10(b). As a
result, he contended the evidence obtained should
be excluded under s.24(2).
Justice Rae disagreed with the accused and found
the police entry into the residence did not violate
the Charter. She stated:

The law with respect to a warrantless entry of a
residence is clear. The police have a duty to enter
a residence to ascertain the safety of the
residents when there is a hang up call, and there
is no answer to the door or someone answers and
says everything is alright. The police are allowed
to enter a residence in hot pursuit when they have
reasonable
and
probable
The accused came to the door, stepped
grounds to believe there is an
“The police also have a
on to the porch, and closed the door
offence in progress. This duty
duty to investigate
behind him. He said he had not seen any
is limited to situations where
suspicious
activity
and
in
there is a concern for
suspicious persons and said the cut wire
protection of life and the safety
doing
so,
they
have
a
happened a week ago when a truck hit
of the residents. They are also
license to knock on doors
it. The accused, however, did not
allowed to enter a residence on
answer questions about whether the
and request information.”
the invitation of the resident.
house belonged to him. Noting that the
The police also have a duty to
accused looked cold, an officer asked if they could
investigate suspicious activity and in doing so, they
go inside. While standing in the front foyer, the
have a license to knock on doors and request
officers smelled a strong odour of marihuana. The
information.

accused produced identification and said he lived
elsewhere. Concerned about the possibility of booby
traps or other persons with weapons, the officers
did a cursory room-to-room search to check for
other occupants and ensure officer safety. They
also believed they had reasonable grounds to believe
there was a marihuana grow operation and wanted to
ensure nothing was destroyed before getting a
warrant.
Two grow rooms were found and the accused was
arrested and transported to the police detachment.
The residence was secured and a telewarrant was
executed. Police found 457 marihuana plants and
charged the accused with marihuana production and
possession for the purpose of trafficking.
During a voir dire in British Columbia Provincial Court
the accused argued, among other issues, that the
warrantless entry into the premises violated s.8 of
the Charter. In his view, the suggestion by the police
to go inside the house was a ruse in order for them

Volume 7 Issue 4
July/August 2007

The argument here really boils down to the
motives of the police when they made the
suggestion to the accused that they could go
inside. If the police had used that suggestion as
a ruse to get into the residence because they had
a strong hunch that the accused was involved in
some kind of criminal activity, then it was an
unauthorized entry absent the informed consent
of the accused, and his Section 8 and 10 Charter
rights were breached. If the court finds that the
accused invited the police into the residence, then
the initial entry was lawful.
The police say that they literally stumbled onto
this marihuana grow operation. They say that
their only motive for suggesting they enter the
residence was that the accused obviously
appeared to be cold and they wanted to further
question the accused to ensure that the accused
had a valid right to be in the residence and that
the occupants, if any, were safe.
They say that the cut wire and the explanation for
it given by the accused, which was inconsistent

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9

with the information they had received, required
foyer. The police did not ask to go into the
that they confirm the identity of the accused and
residence, and once they were inside, they stood
his right to be at the residence. I find that, given
in the foyer and did not ask to look around until
the information the police
they detected the smell
had at the time, this was a
“Once they were inside the residence,
of growing marihuana.
valid and genuine concern. ...
however, the police became immediately I find that the accused
I am satisfied on the
aware that they had reasonable and
freely invited the officers
evidence that when the
probable grounds to believe there was a into the residence and
police knocked on the door
marihuana grow operation on the premises. that it was not an
of the residence, they were
unauthorized entry. Given
intent
on
determining They did a quick room-to-room search for the that it was an invitation
whether the male who
purpose of police safety, to ensure there freely extended by the
answered the door was a
weren’t other persons in the residence, and accused, to merely step
suspect or an innocent
into the foyer and that
bystander. They were in the to make sure nothing was destroyed before
the police at that point
they were able to obtain a warrant. They only wished to confirm
process of determining his
identity and whether or not
that he was entitled to be
were entitled to do this.”
he was entitled to be in the
in the residence, I find
residence at the time.
that there was no breach of his Section 8 and 10
They had not targeted him as a suspect in a
Charter rights.
criminal investigation. [One officer] noted that it
Defence makes the point that the police did not
was not unusual for some people to speak with the
really believe there was a break and enter in
police on the doorstep after closing the door. He
progress because they did not station anyone at
noted that there are sometimes concerns around
the rear of the residence to catch anyone
small children or pets escaping.
attempting to escape. That argument really plays
The evidence of the police was that the accused
into what the police said in their evidence. They
appeared visibly cold, and as a convenience, they
were simply checking to ensure that the residents
commented that they could go inside. In the
were safe and that they were entitled to be in the
circumstances, given the weather, which I find to
residence. They were merely following up on a
have been chilly, and the fact that the accused
report of a suspicious incident. They had not
was inappropriately dressed for the conditions,
made a determination that anything untoward was
this does not in my view appear to be an
going on inside the residence.
unreasonable suggestion. The evidence of all
Once they were inside the residence, however, the
three officers was that the accused opened the
police became immediately aware that they had
door and indicated to the officers to step inside.
reasonable and probable grounds to believe there
There is nothing in the evidence to suggest that
was a marihuana grow operation on the premises.
the accused felt he was obliged to comply with a
They did a quick room-to-room search for the
police request to enter the premises. There is
purpose of police safety, to ensure there weren’t
nothing to suggest that the police were not
other persons in the residence, and to make sure
content to deal with the accused on the doorstep.
nothing was destroyed before they were able to
He wasn’t free to leave until the police could
obtain a warrant. They were entitled to do this.
satisfy themselves that he had a valid right to be
[paras. 18-25]
in the residence, in furtherance of their
investigation of a possible break and enter in
progress. They were entitled to make these
enquiries. I am aware of the fact that police
officers need to be aware that they do carry some
authority when they make these suggestions, and
that some people might feel that they are
required to comply. However, the suggestion was
in the nature of an option, and the evidence of the
officers was that the accused appeared to freely
open the door and invite them to stand in the

10

The evidence was admissible.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
“Police arrested two kids yesterday, one was
drinking battery acid, the other was eating
fireworks. They charged one and let the other one
off.” - Tommy Cooper

www.10-8.ca

Volume 7 Issue 4
July/August 2007

DIGITAL RECORDING AMMETER
DOES NOT BREACH PRIVACY
RIGHTS
R. v. Cheung & Huang, 2007 SKCA 51
Police received information from a
confidential source with peace officer
and drug investigator experience that
two nervous looking oriental males
driving an out of province vehicle were seen park in
front of a residence and unload four or five strings
of black pots bound by rope, a green garden hose,
two extension cords, and take them inside. A search
of the local utilities services showed the monthly
average power consumption was normal.
Then, at the request of police, the utility company
placed a digital recording ammeter (DRA) on
Cheung’s home to monitor the power consumption
over a two week period. A DRA measures and records
the amount of electricity flowing into the home on an
ongoing basis in five to seven minute intervals. This
data can then be charted to determine cycles of
power consumption.

The Crown appealed to the Saskatchewan Court of
Appeal arguing the trial judge erred in concluding
the accuseds had a reasonable expectation of
privacy in the DRA readings. The unanimous Court
set aside the acquittals and ordered a new trial.
Although the accuseds may have had a subjective
expectation of privacy it was not objectively
reasonable.
The DRA readings may have been probative of an
illegal grow operation, however, they did not disclose
intimate details about the accuseds’ lives. The
Saskatchewan Court of Appeal referred extensively
to two Supreme Court of Canada decisions where
they found a person has no reasonable expectation
of privacy in information police had acquired; R. v.
Tessling (police used a FLIR attached to an aircraft
to obtain a heat signature for a residence) and R. v.
Plant (police checked power consumption records
with the utility company). In allowing the Crown’s
appeal, the Saskatchewan Court of Appeal stated:

First, we note that the trial judge indicated that
the information in this case is considerably more
valuable to the police, in detecting the illegal
activity taking place in the home, than the FLIR
data was found to be in Tessling. In our view,
The results revealed a significantly elevated level of
usefulness to the police is not the test. As we
power consumption over a normal residence of that
have noted, the information obtained from the
type, and a high cyclical power consumption for 10
power company in Plant was also valuable to the
and two hour intervals over a 24-hour period. A
police as was the information obtained in Tessling
search warrant at the residence was
found to be useful. We do
“Placing a box on power company not believe, however, that
obtained to search for a grow
property in order to monitor power utility to the police is what
operation. When police executed the
warrant Huang was found inside,
consumption is no more intrusive the Court in Tessling had in
mind when it talked about
along with cash and marihuana. Both
in terms of technique than
the
quality
of
the
accused
were
charged
with
[obtaining information from a
information. The focus in
producing marihuana, possession for
Tessling, on the nature and
power company or flying over a
the
purpose
of
trafficking,
of the information,
home and taking a FLIR picture].” quality
possession of crime property, and
was for the purposes of
stealing power.
determining
whether
information about the biographical core of an
At trial in the Saskatchewan Court of Queen’s Bench
individual was revealed. FLIR technology may
the accuseds were acquitted. The trial judge found
reach the capacity to tell where and what human
the police violated their s.8 Charter rights and the
beings are doing. It is in that respect that the
evidence was excluded under s.24(2). In the trial
Court in Tessling was concerned about the quality
of the technology. Like the FLIR technology, a
judge’s opinion, they had a reasonable expectation of
DRA is still “off-the-wall” and not “through-theprivacy in the information detected by the DRA. The
wall” technology, to use the terminology mentioned
police intruded into the privacy of the home by using
in Tessling.

the DRA and therefore breached s.8.

Secondly, we disagree with the trial judge's
conclusion that the police technique was intrusive

Volume 7 Issue 4
July/August 2007

www.10-8.ca

11

in relation to the privacy
reveals very little about the personal
“It would be a troubling
interest either in terms of
or private decisions of the
conclusion if we were compelled lifestyle
the method used or the
occupant of a residence. While the DRA
information obtained. As to to say that the accuseds have an data in this case may be more probative
the method, neither in
of the existence of an illegal grow
expectation of privacy in
Plant nor in Tessling was
information, in which, but for their operation than the data in Plant, we
the technique found to be
believe this to be a difference of degree
theft of power, they would have only and not a difference that changes
intrusive.
In Plant, the
no expectation of privacy.”
information was obtained
the substantive result of the analysis.
from the power company.
We also note that if the power had not
In Tessling, the information was obtained by flying
been siphoned off by the accuseds illegally, the
over the home, taking a picture and then assessing
information that would be necessary for a warrant
the image taken. Placing a box on power company
would have been available in this case in
property in order to monitor power consumption is
accordance with Plant. It would be a troubling
no more intrusive in terms of technique than
conclusion if we were compelled to say that the
either of these methods.
accuseds have an expectation of privacy in
information, in which, but for their theft of
As to what is revealed, we have already touched on
power, they would have no expectation of
this issue. DRA data, like FLIR data, does not
privacy. [footnotes omitted, paras. 20-23]
show precisely what is going on in the home.
Certain inferences, as to the presence of an illegal
Since there was no privacy expectation s.8 was not
marihuana grow operation, may be drawn from this
engaged and therefore there was no reason to
information if it is coupled with other information,
address s.24(2).
but as the trial judge herself indicated, DRA data
does not indicate conclusively that such an
Complete case available at www.canlii.org
operation is present. … As Crown counsel
acknowledged in oral argument, it is inconceivable
SEATBELT RELATED CHECK
that a search warrant could be issued in relation
LEGITIMATE REASON FOR STOP
to a marihuana grow operation on the basis of DRA
data alone. This is so because there could be
R. v. Doell, 2007 SKCA 61
legitimate bases for both the amount of power
The accused was stopped driving a truck
consumption and the consumption pattern shown in
this case. Again, in that respect, this case is like
as he was seen leaving the parking lot of
Tessling where it was decided that no warrant
a bar because it didn’t look like he was
could ever properly be granted on the basis of a
wearing a seatbelt. A roadside breath
FLIR heat profile alone.
sample was subsequently obtained and the accused
Finally, on the question of whether the DRA data
exposed any intimate details of the accuseds'
lifestyle or core biographical data, the trial judge
herself concluded that it would be "somewhat
strained to say that this information falls within
the 'biographical core of personal information'
that the Charter is designed to protect or that it
affects the 'dignity, integrity and autonomy' of
the person whose home is the subject of the
DRA."
Nonetheless, she concluded that the
accused had an objectively reasonable expectation
of privacy in this data. As we have indicated, we
see this part of the analysis being largely
answered by Plant.
Plant indicates that the
information about the pattern of power
consumption at issue in that case could not
reasonably be said to reveal intimate details of an
individual’s life because electricity consumption

12

was arrested for impaired driving. He was taken to
the police station and provided breath samples over
80mg% and was charged accordingly.
At trial in Saskatchewan Provincial Court the
accused argued the police used the seatbelt check
as a ruse to stop him, it was arbitrary under s.9 of
the Charter, and therefore violated his rights. The
trial judge disagreed and found the reason for the
stop was to investigate a possible seatbelt offence.
Although the judge would have acquitted the
accused if he was charged for not wearing a seatbelt
since the police were uncertain whether he was
wearing it, they nonetheless had the right and duty
to investigate whether the accused had his seatbelt
on. There was no Charter breach and the accused
was convicted of driving over 80mg%.

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Volume 7 Issue 4
July/August 2007

The accused appealed to the Saskatchewan Court of
Queen’s Bench. The appeal judge ruled that the
police could legitimately stop a vehicle if the officer
had a rational basis for thinking the driver was not
wearing a seatbelt. However, if the police stop a
driver without any particular reason for thinking a
driver is not wearing one, the stop is arbitrary and
violates s.9 of the Charter. In this case, the appeal
judge found the officer did not have a rational basis
for believing the accused was not wearing his
seatbelt, the stop was therefore arbitrary, the
certificate of analysis excluded, and an acquittal was
entered.
The Crown then appealed to the Saskatchewan Court
of Appeal arguing the appeal judge erred in holding
the police unjustifiably violated the accused’s rights.
Justice Richards, writing the opinion of the Court,
agreed with the Crown.

Ladouceur and Mellenthin, it can be justified
pursuant to s. 1 of the Charter. The mere fact
that the stop is arbitrary does not determine its
legality. [paras. 20-21]

This was not a case where police were stopping a
driver for a reason unrelated to highway safety. In
determining whether a stop is legitimately made for
traffic or vehicle safety, a court must focus on the
reason for the stop, rather than whether the police
had a “rational basis” for it. Justice Richards held
the stop was made to check whether the accused was
wearing a seatbelt. Stopping a vehicle for a seatbelt
related purpose is justifiable under the random stop
powers of motor vehicle legislation because it is a
legitimate reason related to driving a car:

In my view, the trial judge made no error in
concluding that [the accused] had been stopped
for a traffic safety purpose and, more
particularly, had been stopped to determine if he
Section 40(8) of Saskatchewan’s Highway Traffic
was wearing a seat belt. [An officer]l said he had
Act allows the police to randomly stop vehicles. It
watched [the accused’s] truck traveling through
reads; “A peace officer who…is readily identifiable as
the parking lot "and the driver appeared not to be
wearing a seat belt". As the truck turned onto
a peace officer; and…is in the lawful execution of his
Moss Avenue, [the officer] observed "the driver
or her duties and responsibilities;
reach across the shoulder
may require the person in charge
“Vehicle
stops
which
are
random
or
and make motions to - as if
of or operating a motor vehicle to
he were doing up his seat
arbitrary have been found to be
stop that vehicle.” This statutory
belt". He communicated this
justifiable pursuant to s.1 of the
authority validly limits the rights
to [a second officer].

Charter so long as they are conducted
for a purpose which relates to ‘driving a [The second officer] made
the decision to stop [the
car such as checking the drivers accused]. He recalled a
licence and insurance, the sobriety of comment that the driver of
the driver and the mechanical fitness of the truck was not wearing a
seat belt but did not recall
Vehicle stops which are random
the vehicle’”

of drivers in the interests of
promoting highway safety if the
reason for the stop is related to
traffic or vehicle safety. Justice
Richards stated:

or arbitrary have been found to
be justifiable pursuant to s. 1 of the Charter so
long as they are conducted for a purpose which
relates to "driving a car such as checking the
drivers licence and insurance, the sobriety of the
driver and the mechanical fitness of the vehicle".
[R. v. Ladouceur, R. v. Mellenthin] A stop for the
purpose of checking for seat belt use falls within
that rubric.
Contrary to the reasoning of the summary
conviction appeal judge, in the realm of traffic
safety there is no requirement that a police
officer have a "rational basis" for believing an
offence has been committed before stopping a
vehicle. If the reason for an arbitrary stop falls
within the scope of the matters identified in

Volume 7 Issue 4
July/August 2007

whether he or [the first
officer] had made the observation. His notes
indicated that he could not ascertain for sure
whether [the accused] was wearing his seat belt.
[The second officer] relied heavily on his notes
and was unable to explain why he would have
allowed [the accused] to drive a number of blocks
before pulling him over if seat belt use had been
the issue. Nonetheless, he was clear and
consistent that the stop was made to check if [the
accused] was wearing a seat belt. [para. 25]

And further:
Thus, in light of the record as a whole, I see no
reviewable error in the trial judge's conclusion
that [the accused] was stopped for the purpose of

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13

checking seat belt use. As a result, it does not
matter either that the evidence fails to establish
[he] was not wearing a seat belt or that the
evidence offers an arguably thin basis for
suspecting he was not wearing a seat belt. The
essential point is this. The stop was made for a
purpose contemplated by Ladouceur and
Mellenthin and can thus be justified as a
reasonable limitation of [the accused’s] rights
even if it was arbitrary. [para. 28]

There was no Charter breach, the Crown’s appeal was
allowed, and the accused’s conviction was restored.
Complete case available at www.canlii.org

AN AMERICAN VIEW:
Police Pursuits
“[W]e are loath to lay down a rule requiring
the police to allow fleeing suspects to get
away whenever they drive so recklessly that
they put other people’s lives in danger. It is
obvious the perverse incentives such a rule
would create. Every fleeing motorist would know that escape
is within his grasp, if only he accelerates to 90 miles per
hour, crosses the double-yellow line a few times, and runs a
few red lights. The Constitution assuredly does not impose
this invitation to impunity-earned-by recklessness. Instead,
we lay down a more sensible rule. A police officer’s attempt
to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate
the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.” - U.S. Supreme
Court Justice Scalia, Scott v. Harris, (2007)
An Oral Argument Snipit:
Justice Scalia: “[I]f this fellow

driving 90 miles an hour is
responsible for endangering people,
you're proposing a rule that says if
there's a 50 percent chance that
he'll hurt some innocent person and
a 50 percent chance that he'll get
hurt if you try to stop him, you
shouldn't do anything. I don't agree with that.”
Mr. Savrin [counsel for the petitioner]: “Well, Your Honor

--”
Justice Scalia: “I'd stop him. I mean, he's the fellow

that's causing the danger, endangerment, isn't he?”

14

OFFICER’s REASONABLE
GROUNDS STANDARD TOO
HIGH: EVIDENCE ADMISSIBLE
R. v. MacEachern, 2007 NSCA 69
The accused disembarked a Via Rail
train and walked towards the terminal
entrance carrying only a knapsack. A
police Criminal Interdiction Team was
at the station and had a narcotics detecting dog with
them. The dog and its handler approached the
accused; he slowed and walked an arc around the
officer and his dog. The dog was interested in the
accused, followed him, and sat behind him at the
train station entrance, indicating the presence of a
narcotics odour. Then, the dog followed the accused
into the terminal and sat behind him a second time.
The dog handler notified another officer of the
positive alert. This officer approached the accused
who was making travel arrangements with a shuttle
bus driver, presented his police badge, identified
himself, touched the accused on the elbow, and
directed him to the side of the train station to
answer some questions. The officer told the shuttle
bus driver that the accused was “not going
anywhere.” He asked the accused for his train ticket,
boarding pass, and identification to determine
whether he had a one-way pass, paid cash, and
purchased the ticket last minute.
The accused was subsequently arrested for
possession of narcotics, read his Charter rights
under s.10(b) and given the police caution. He said he
wanted a lawyer. His knapsack was searched and 676
grams of marihuana and 282 grams of cocaine were
found. He was re-arrested for possession for the
purpose of trafficking and charged accordingly.
At trial in the Nova Scotia Supreme Court the
accused applied to have the evidence excluded under
s.24(2) of the Charter arguing his rights under
s.10(b) had been violated. The trial judge concluded
that the accused was detained when the officer
touched him and said he wasn’t going anywhere.
Further, the accused testified he believed he had to
obey the police. The police, however, failed to advise
him of his right to counsel and therefore breached
s.10(b). The judge ruled that the post-detention

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Volume 7 Issue 4
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conversation was inadmissible but the narcotics
should not be excluded. He was convicted of two
counts of possession for the purpose (marihuana and
cocaine) and sentenced to two years.
The accused appealed to the Nova Scotia Court of
Appeal submitting that the trial judge failed to find
the arrest illegal, that the search breached s.8 of
the Charter and that the evidence should have been
excluded under s.24(2).

nonetheless said that he did not believe that he
had grounds until after he had questioned [the
accused]. So the subjective requirement of s. 495
– [the officer’s] belief that [the accused] had
committed an offence - was assisted by [the
accused’s] post-detention answers to the
questions. Those questions followed the breach of
[the accused’s] right under s. 10(b) to be informed
of his entitlement to counsel. The officers
obtained the narcotics in a search incidental to
the arrest. [reference omitted, para. 21]

Right to Counsel

“The subjective prerequisite for The information the officer
Justice Fichaud, authoring the
obtained
post-detention
in
arrest derived from [the
judgment for the Nova Scotia Court
violation of s.10(b) could not be
of Appeal, agreed the accused’s accused’s] answers to questions used to support the officer’s
rights under s.10(b) were violated. that should not have been asked grounds.
“The
subjective
before [the accused] was
The accused was detained when the
prerequisite for arrest derived
police touched him, directed him to
informed of his right to counsel from [the accused’s] answers to
the side where he could be under s.10(b). The search of [the questions that should not have
questioned, and told the shuttle
accused’s] knapsack violated s.8 been asked before [he] was
driver he was “not going anywhere.”
informed of his right to counsel
of the Charter.”
As well, the accused testified he
under s.10(b),” said Justice
believed he had to obey the police. “Upon detention,
Fichaud. Since the officer lacked the subjective
[the accused] was entitled to be informed of his
grounds necessary as part of the reasonable grounds
right to counsel without delay,” said Justice Fichaud.
analysis, the arrest was not lawful and therefore the
“The officer must inform the detainee of his right to
search of the knapsack was not incidental to arrest
counsel before questioning him.”
and violated s.8.
The Search

s.24(2) Charter

A search will be proper as an incident to arrest only
if the arrest is legal. If the arrest is invalid, the
search will also be invalid. An arrest under s.495 of
the Criminal Code will be lawful if there is a proper
basis founded on reasonable grounds, subjectively
held and objectively verifiable. In this case, the trial
judge found reasonable grounds existed from an
objective point of view but the officer didn’t think he
had enough. Justice Fichaud described it this way:

Although the police violated the accused’s ss.8 and
10(b) Charter rights, the trial judge did not err in
admitting the narcotics evidence. The narcotics were
non-conscriptive evidence and their admission would
not render the trial unfair. The Charter breaches
were not willful, nor deliberate. Although the police
should know the basics of detention ,the officer here
said he did not believe he had detained the accused.
There were reasonable grounds to detain the accused
but the officer had an unreasonably high standard
and did not arrest out of an abundance of caution.
The offence was serious and the narcotics evidence
was critical to the Crown’s case. The exclusion of the
evidence, rather than its admission, would bring the
administration of justice into disrepute.

Section 495 of the Criminal Code entitled [the
officer] to arrest [the accused] without warrant
if [the officer], on reasonable grounds, believed
that [the accused] had committed an indictable
offence. Both the objective and subjective
requirements must exist… The police dog, trained
to detect narcotics with proven effectiveness,
had twice given a positive indication. [The
accused] had shown evasive action. The [trial
judge] determined that this gave reasonable
grounds for the arrest of [the accused],
satisfying the objective test. [The officer]

Volume 7 Issue 4
July/August 2007

Complete case available at www.canlii.org

Note-able Quote
“Every act is to be judged by the intention of the
agent.” - Author Unknown

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15

IMPACT OF FORFEITURE
CONSIDERED IN DETERMINING
SENTENCE

criminal organizations and not to independent
entrepreneurs like herself.

R. v. Craig, 2007 BCCA 234

Section 16 of the CDSA provides for the forfeiture
of “offence related property”. Section 2 of the Act
defines “offence-related property” as any property
by means of or in respect of which a “designated
substance offence” is committed, that is used in any
manner in connection with the commission of a
designated substance offence, or that is intended
for use for the purpose of committing a designated
substance offence. Producing marihuana is a
“designated substance offence” and therefore the
accused’s dwelling house was potentially subject to
forfeiture under s.16(1). Justice Ryan summarized
the forfeiture provisions of the CDSA as follows:

Forfeiture Provisions

Police searched the accused’s house and
vehicle. The house, an older two level
dwelling with 1,000 square feet of floor
space, had the entire basement level
and portions of the main floor devoted to a 186 plant
marihuana grow operation valued at $87,500. There
were three growing rooms and one drying room,
utilizing 16 electrically-timed industrial growing
lights running through a system of electrical ballasts.
There was a ventilation system involving intake,
exhaust and wall fans, an irrigation system and sump
pump taking water to and from the plants, and a large
amount of packaging material,
[T]he forfeiture provisions of the
“[T]he
forfeiture
provisions
of
the
CDSA provide a process whereby
scales, score sheets, growing
instructions, calendars dating CDSA ... effectively makes the order offence-related property will be
of forfeiture mandatory upon the forfeited to the Crown. The
back three years, and a
container with about one
Crown proving, on a balance of process under s. 16(1) effectively
makes the order of forfeiture
pound of marihuana packaged
probabilities, that personal property mandatory upon the Crown proving,
in ounce, quarter-pound, and
is offence-related property.”
on a balance of probabilities, that
half-pound bags. In her car,
personal property is offencepolice found $22,275 in cash, $2,390 in traveller’s
related property. There are, however, different
cheques, $787 USD, and five pounds of marihuana in
considerations that guide the forfeiture of real
property; in particular, s. 19.1(3) requires the
quarter-pound bags, as well as “score sheets”
sentencing judge to consider the impact of an
documenting marihuana sales. The accused was 52
order of forfeiture of real property and whether
years old and had no criminal record.
At trial in British Columbia Provincial Court the
accused pled guilty to producing marihuana and was
given a 12 month conditional sentence, fined
$100,000, and a $15,000 victim surcharge. The
sentencing judge, also ordered forfeiture of the
equipment used to commit the offence but refused
to order the forfeiture of the house, worth
$460,000, under s.16(1) of the Controlled Drugs and
Substances Act (CDSA).
The Crown appealed to the British Columbia Court of
Appeal arguing, among other things, that the
sentencing judge erred by failing to order the
forfeiture of the house and that the forfeiture
should be determined independently from the
sentence imposed and vice versa. The accused, on the
other hand, disagreed with the Crown and also
argued, inter alia, s.16(1) of the CDSA applied to only

16

it would be disproportionate having regard to (1)
the nature and gravity of the offence; (2) the
circumstances surrounding the commission of the
offence; (3) the offender’s criminal record; and
(4) if the real property is a dwelling-house, the
impact of forfeiture on those, other than the
offender, who use it as their principal residence.
[para. 46]

Forfeiture not Limited to Organized Crime
Justice Ryan ruled that there was “nothing in the
language of the history of the enactment that
suggests the provisions for forfeiture are limited to
organized crime.” She wrote:
In the first place, the relevant provision on appeal
is not ambiguous and there is no language in the
Act that says that its purpose was to apply to
organized crime alone. Section 16(1) states that
the forfeiture of “offence-related property”

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Volume 7 Issue 4
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applies to “a person convicted of a designated
offence”. Read in its grammatical and ordinary
sense, the main limitation is that s. 16(1) applies
only to interests in property where the property
interest has been the instrument of the
commission of a designated drug offence; the only
other limits are those set out in s. 19.1 when the
Crown makes an application in relation to real
property. [para. 50]

each decided in isolation from one another. In other
words, the consideration of forfeiture may be
considered with the determination of the primary
sentence and the primary sentence may be
considered by taking into account an order of
forfeiture. The decision with respect to the primary
sentence and the forfeiture order will have an affect
on each other. Justice Ryan stated:

She did note, however, that the presence or
participation of organized crime would be an
important factor in determining whether forfeiture
would be disproportionate. She stated:

Parliament’s choice of the word “impact” brings a
subjective element into the analysis. As I read it,
s. 19.1(3) requires the court to ask what effect
forfeiture will have on the offender and whether
its impact would be disproportionate to the
nature, gravity and circumstances surrounding the
offence. The term ‘impact’, in my view, is broad
enough to include consideration of a primary
sentence. Indeed, a sentencing judge could not
adequately assess the impact of forfeiture of real
property or a dwelling-house without knowing the
personal circumstances of the offender, which
include the primary sentence that has been or will
be imposed on that offender. [para. 67]

…ss. 19.1(3) and (4) of the CDSA instruct the
court to weigh the impact of forfeiture against
the “nature and gravity of the offence, the
circumstances surrounding the commission of the
offence and the criminal record, if any, of the
person charged with or convicted of the offence.”

In my view, an evaluation of the “nature and
gravity of the offence” would include, but is not
limited to, such factors as whether there were
weapons on the premises, whether the operation
And further:
was harmful to the neighbourhood, whether the
In sum, while the idea that forfeiture and the
theft of electricity was involved, the number of
primary sentence should be considered in airplants being cultivated, and the sophistication of
tight compartments is outwardly appealing, it
the enterprise.
The “circumstances of the
does not accord with the provisions of the CDSA
offence” would include whether it was done
or the jurisprudence.
When faced with an
because of pressure from other members of the
application for forfeiture of real property, the
community, the financial circumstances of the
sentencing judge may consider the primary
offender, whether the operation was undertaken
sentence in evaluating the impact of forfeiture.
for profit alone, whether the offender lives in
Likewise, in determining the
the house, and other such matters.
The fact that the offender has or “When faced with an application for overall fitness of the primary
sentence, the sentencing
does not have a criminal record will
forfeiture of real property, the
judge may consider the
also be considered.
sentencing judge may consider the existence of an order for
Many of these factors will support a primary sentence in evaluating the
forfeiture.
forfeiture order where a party is a
impact of forfeiture. Likewise, in In reaching this conclusion, I
member of a criminal organization
determining the overall fitness of am cognisant of the fact that
and is operating the enterprise as
the CDSA does not require
such. It follows that the presence
the primary sentence, the
the application for forfeiture
of organized crime would be a
sentencing judge may consider the to take place at the time the
significantly aggravating factor in
deciding whether or not to order existence of an order for forfeiture.” primary sentence is imposed,
although this is preferable
forfeiture. [paras. 51-53]
and has typically occurred as a matter of course…
Where both do not occur at the same time and an
Primary Sentence & Relationship to Forfeiture
unfit sentence or inappropriate order of
Forfeiture is an aspect of sentencing and Justice
forfeiture results, this can be remedied through
Ryan concluded that the primary sentence and the
the traditional remedy of appellate review.
[references omitted, paras. 79-80]
forfeiture of offence related property should not be

Volume 7 Issue 4
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17

Proper Process For Deciding Forfeiture
The Crown submitted that the effect of considering
ss.16(1) and 19.1(3) created a two step process as
follows:
1

Once the Crown meets the s.16(1) requirements,
a presumption of forfeiture applies. This
requires a conviction for a designated substance
offence, proof the property is “offence related
property”, and that an offence was committed in
relation to the property.

2

The offender then must displace the
presumption by satisfying the court the impact
of the forfeiture would be disproportionate. This
may require the offender raising or calling
evidence relating to the factors set out in
ss.19.1(3) or (4).

Although this approach had been accepted by other
appellate courts, Justice Ryan rejected it:
I am of the view that because the governing
provision, s. 16(1), is subject to s. 19.1, the order
of forfeiture is not automatic. In my view, s.
16(1) requires the court, before making an order
of forfeiture with respect to real property, to
examine whether the impact of forfeiture would
be disproportionate in light of the factors set out
in s. 19.1(3) (and s.19.1(4) if applicable).
At that stage the onus will shift to the offender,
against whom the order is being sought, to
establish that the impact of the order would be
disproportionate. The offender need not call
evidence. He or she may rely on the evidence
called in the Crown’s case. Thus, if the Crown’s
case shows that an offender with no criminal
record grew one or two plants of marihuana for
his or her own use, barring other circumstances,
the offender will have established that the
impact of the order is disproportionate. In most
cases, however, there will be little in the Crown’s
case that would demonstrate the subjective
impact of forfeiture on the offender. Therefore,
speaking practically, the offender will be obliged
to call evidence that would satisfy the judge that
the
impact
of
forfeiture
would
be
disproportionate.
In my view, the analysis of s. 19.1(3) applies a
fortiorari to a “dwelling-house” under s. 19.1(4).
That section provides that where the real
property is a dwelling-house the court “shall”

18

consider the impact of forfeiture on any member
of the offender’s immediate family if the
dwelling-house was the family member’s principal
residence at the time of the offence. This
imposes a duty on the court to consider the
“impact of forfeiture”, regardless of whether it
is raised by the offender. Again, the evidence of
the impact on the family member will normally be
within the knowledge of the offender, not the
Crown. Therefore, if the offender wishes to
contest forfeiture under s. 19.1(4), he or she will
be obliged to call evidence on those matters and
might include evidence that the dwelling-house is
a principal residence. However, this does not
require the offender to raise the matter; if the
sentencing judge can rely on any evidence
adduced by the Crown alone.
To summarize, the CDSA does not impose a twostep process as advocated by the Crown. Rather,
with respect to forfeiture of real property
pursuant to s.16(1), the onus is on the Crown to
establish that a person has been convicted of a
“designated substance offence”, that the
property in question is “offence-based property”,
and that the offence was committed in relation to
that property. If the subject matter is real
property, the court, pursuant to s. 19.1(3), is
required to go on to consider whether the impact
of such an order would be disproportionate,
taking into account the nature and gravity of the
offence, the circumstances surrounding it, and
the criminal record of the offender. At this
point the burden shifts to the offender to
establish that the impact of forfeiture would be
disproportionate. The offender may choose to
rely on the Crown’s case for proof, or may call
evidence in support of his or her position. In
addition, if the property is a dwelling-house, the
court, pursuant to s. 19.1(4), must consider the
“impact of forfeiture” on any member of the
offender’s family who uses the location as a
principal residence.

Outcome
As a result of these and other issues, the British
Columbia Court of Appeal allowed the Crown’s appeal
and ordered the accused’s home forfeited in
accordance with s.16 of the CDSA. The conditional
sentence remained, but the accused’s $100,000 fine
and $15,000 victim surcharge were set aside.
Complete case available at www.courts.gov.bc.ca

www.10-8.ca

Volume 7 Issue 4
July/August 2007

because the police officers failed to inform them of
the reason for their detentions; investigation of
impaired driving. The appeal judge rejected the
appeals.

BASIS FOR DETENTION
CAN BE INFERRED FROM
CIRCUMSTANCES
R. v. Williams, R. v. Fleming,
2007 BCSC 184
In Williams, a police officer stopped the
accused after observing a traffic
violation and detected a strong odour of
alcohol from the vehicle and noted he had
bloodshot, watery eyes, slurred speech, and a flushed
face. Without informing the accused he was detained
for investigation of impaired driving, he was asked to
walk to the rear of his truck. After doing so, the
officer detected a moderate odour of alcohol on his
breath and noted he swayed from side to side while
standing. Breath samples were subsequently obtained.
In Fleming, a police officer stopped the accused
after observing a traffic violation and noted the
smell of alcohol on his breath and that he had slurred
speech. Without informing the accused he was
detained for investigation of impaired driving, the
officer asked him if he would consent to sobriety
tests to see if he was sober enough to drive. He
failed the tests and breath samples were obtained.
During voir dires in British Columbia Provincial Court,
the accuseds argued that the police violated their
rights under s.10(a) of the Charter because they
were never informed of the reason for their
detention. In their view, the officers were obliged to
tell them they were detained for investigation of
impaired driving once it was suspected they had
consumed alcohol, but before they were asked to
leave their vehicles for the purpose of pursuing the
investigations. Thus, the accused submitted the
certificates of analysis should be excluded and
acquittals entered.
The trial judges ruled there was no s.10(a) breach,
finding that even though they were not expressly
told of the reasons for their detention, the accuseds
were informed of the reason by the circumstances of
the detention. The certificates were admitted and
both accused were convicted of over 80mg%.
Both accuseds then appealed to the British Columbia
Supreme Court and the appeals were heard together.
They submitted the breath demand was invalid

Volume 7 Issue 4
July/August 2007

In Justice Edwards’ opinion, it was not necessary for
the police to specifically inform a suspect of the
reasons for detention if it could be inferred from
the circumstances that a suspect understood the
basis for his detention. In these cases, there was
evidence for the trial judge to conclude that the
circumstances were such that the accuseds
understood the reasons for their detention; they
were “suspected of impaired driving and the police
were pursuing an investigation based on that
suspicion.” There were no Charter breaches and the
certificates were admissible. The accuseds’ appeals
were dismissed.
Complete case available at www.courts.gov.bc.ca

VATICAN RELEASES DRIVERS’
TEN COMMANDMENTS
In June, the Holy See Press Office
at the Vatican released a document
entitled
"Guidelines for the
Pastoral Care of the Road." Cardinal
Martino expressed the view that
the "Church and State, each in its
own field, must work to create a generalized public
awareness on the question of road safety and
promote, using all possible means...an adequate
education among drivers, travelers and pedestrians."
The document makes 84 statements about driving
including, “Cars particularly lend themselves to being
used by their owners to show off, and as a means for
outshining other people and arousing a feeling of
envy. People thus identify themselves with their cars
and project assertion of their egos onto them. When
we praise our cars we are, in fact, praising ourselves,
because they belong to us and, above all, we drive
them. Many motorists, including the not so young,
boast with great pleasure of records broken and high
speeds achieved, and it is easy to see that they
cannot stand being considered as bad drivers, even
though they may acknowledge that they are”.
And, “It is quite common when accidents occur to
blame the state of the road surface, a mechanical

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19

problem or environmental conditions. However, it
should be underlined that the vast majority of car
accidents are the result of serious and unwarranted
carelessness – if not downright stupid and arrogant
behaviour by drivers or pedestrians – and are
therefore due to the human factor.
The “Drivers’ Ten Commandments” are listed as
follows:

I
II

III

IV

V

VI

VII
VIII

IX
X

You shall not kill.
The road shall be for you a means of
communion between people and not
of mortal harm.
Courtesy, uprightness and prudence
will help you deal with unforeseen
events.
Be charitable and help your
neighbour in need, especially victims
of accidents.
Cars shall not be for you an
expression of power and domination,
and an occasion of sin.
Charitably convince the young and
not so young not to drive when they
are not in a fitting condition to do so.
Support the families of accident
victims.
Bring guilty motorists and their
victims together, at the appropriate
time, so that they can undergo the
liberating experience of forgiveness.
On the road, protect the more
vulnerable party.
Feel responsible toward others.

“Drivers on the road should be fully aware, without
dreading such a situation, that an accident may
occur at any time. Despite the generally high quality
of today’s roads in developed countries, it is foolish
to drive “thoughtlessly” as if such dangers did not
exist. Our attitude when driving should be the same
as if we were using dangerous tools, and therefore
being very careful.” - Guidelines for the Pastoral
Care of the Road
Source: www.vatican.va

20

WAITING DRIVER DID NOT
RELINQUISH CARE & CONTROL
R. v. Lequereux, 2007 BCSC 845
The accused caused a rear-end traffic
collision, turned off his car, got out and
waited for police to arrive. A police
officer attended the scene, performed
investigatory tasks and identified the accused as the
driver. He was standing beside his car with his keys
and two witnesses at the scene were able to identify
him as the driver. The officer served a ticket on the
accused followed by a request for an approved
screening device (ASD) breath sample. He failed the
ASD test, which occurred 35 minutes after the
accident, and a breathalyzer test was subsequently
performed at the police detachment. He blew over
the legal limit and was charged.
At trial in British Columbia Provincial Court the trial
judge excluded the results of the breathalyzer test
based on the ASD failure. In the judge’s view the
accused had relinquished care and control when he
turned off his car, got out, and waited for police;
therefore the demand for the breath sample at the
roadside and the breathalyzer sample at the
detachment violated the accused’s Charter rights.
The Crown appealed to the British Columbia Supreme
Court.
The appeal judge found the trial judge erred. In
Justice Russell’s view, turning the car off, getting
out, and waiting for police was only part of the
evidence in assessing care and control. There was no
evidence the vehicle could not be driven and the
accused retained the keys on his person.
Furthermore, a “police officer need not actually
observe the person upon whom the demand is made to
be in care and control of the motor vehicle at the
time the demand is made.” The words “has care and
control” found in s.254(2) of the Criminal Code, the
provision that allows for ASD demands, is to be given
past signification. The appeal judge found the
accused had retained care and control of his vehicle,
the demand for a breath sample was lawful, and the
certificate of analysis admissible. The matter was
remitted to Provincial Court for a rehearing.
Complete case available at www.provincialcourt.bc.ca

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Volume 7 Issue 4
July/August 2007

INVESTIGATIVE NECESSITY
NOT REQUIRED FOR ORGANIZED
CRIME WIRETAPS
R. v. Doiron, 2007 NBCA 41
Following a pub fire causing about four
million dollars in damage the arsonist
pled guilty and cooperated with police.
He told police that the accused, a
lawyer, offered him $35,000 if he refused to testify
against an owner of the pub who the arsonist claimed
hired him to set the pub on fire. The police sought a
judicial authorization allowing them to record the
arsonist’s and the accused’s conversations in the
institution the arsonist was incarcerated. As a result
of these conversations and other evidence, the
accused lawyer was charged with attempting to
obstruct justice.

have been tried and have failed, other investigative
procedures are unlikely to succeed, or the urgency of
the matter is such that it would be impractical to
carry out the investigation of the offence using only
other investigative procedures.” This has commonly
been
labeled
an
“investigative
necessity
requirement.”
Section 185(1)(h) requires the swearing officer to
include their belief regarding this necessity
requirement in the affidavit for the wiretap.
However, ss.185(1.1) and 186(1.1) state that the
necessity requirement does not apply when the
application for authorization is in relation to a
criminal organization or terrorism offence. In other
words, the authorizing judge need not take the
investigative necessity requirement into account
when making an order for an intercept in these
circumstances.

At trial in the New Brunswick Court of Queen’s Bench
the Crown adduced evidence of several phone calls
between the pub owner and the accused captured
during a separate investigation. A Quebec court had
signed a year long wiretap authorization against 40
people alleged to be members of criminal
organizations, such as the Hells Angels and the
Damners. The pub owner and his brother were two of
the named individuals. The accused was subsequently
convicted of attempting to obstruct justice and
sentenced to four and a half years in prison.

Justice Deschenes concluded that the legislation was
not rendered constitutionally invalid in so far as
there was no investigative necessity requirement for
intercepts related to organized crime. He stated:

The accused appealed to the New Brunswick Court of
Appeal arguing, among other grounds, that the
absence of an investigative necessity requirement in
the legislative scheme for wiretaps related to
organized crime matters makes the law unreasonable
and therefore breached his s.8 Charter right
protecting him from unreasonable search and
seizure. Thus, he submitted, any order made
pursuant to these provisions was invalid and the
evidence inadmissible.

In short, … the investigative necessity
requirement under s. 186(1)(b), dispensed with by
Parliament in situations where the authorization
sought involves criminal organizations, is not a
constitutional requirement. In my opinion, the
legislative provisions allowing the state to seek
and the authorizing judge to grant an order
authorizing wiretapping without the need to apply
the investigative necessity criterion are not
unreasonable and do not violate rights guaranteed
by s. 8 of the Charter. [para. 46]

Justice Deschenes, authoring the judgment of the
New Brunswick Court of appeal, first examined the
necessity requirements of wiretap legislation.
Section 186(1) of the Criminal Code allows the police
to seek an authorization to intercept private
communications only if a judge is satisfied, among
other things, that “other investigative procedures

…I believe that the necessity requirement is not a
constitutional requirement for court-ordered
electronic surveillance in cases involving organized
crime, and that its absence from the legislation
does not violate the right guaranteed by s. 8 of
the Charter. [para. 33]

And further:

The accused’s appeal was dismissed.
Complete case available at www.canlii.org

Note-able Quote
“Good judgment is the outcome of experience ... and
experience is the outcome of bad judgment.” - Vivian
Fuchs

Volume 7 Issue 4
July/August 2007

www.10-8.ca

21

VEHICLE FORFEITURE
MANDATORY
R. v. Paziuk, 2007 SKCA 63
The accused was found in possession of
241 ecstasy tablets and some marihuana
while driving his truck. He was convicted
of possessing a controlled substance for
the purpose of trafficking under s.5(2) of the
Controlled Drugs and Substances Act (CDSA) in
Saskatchewan Provincial Court and sentenced to nine
months in jail with a 10 year firearms prohibition. The
sentencing judge, however, refused to order
forfeiture of his truck, valued at about $20,000. He
did not find the truck to be an integral part of the
offence. The accused was not trafficking out of the
truck but merely used it as a method of
transportation. Furthermore, the sentencing judge
held forfeiture would be disproportionate to the
offence.
The Crown appealed the sentencing judge’s order to
release the truck to the Saskatchewan Court of
Appeal. Justice Lane, stating the opinion of the
Court, first examined the forfeiture provisions of
the CDSA. Section 16 of the CDSA requires a court
to order the forfeiture of property if a person has
been convicted of a designated substance offence
and the court is satisfied, on a balance of
probabilities, that the property is “offence-related
property” and an offence was committed in relation
to that property. Section 2 of the CDSA defines
“offence-related property” as including property
“that is used in any manner in connection with the
commission of a designated substance offence.”
Forfeiture is, however, limited if other innocent
parties with a valid interest in the property apply for
an order of restoration of the property. These
innocent parties must be the lawful owner of the
property or be legally entitled to possession or it if
it were to be forfeited. If an innocent party is
successful in their application for restoration, a
court may, at its discretion, order the property
returned to the innocent party. As well, if the
offence-related property is real property or a
dwelling house, there is a proportionality test that
enters into the forfeiture analysis.
In holding the truck was subject to forfeiture
Justice Lane stated:

22

It is clear the truck is “offence-related
property” in that it was used in connection with
the commission of a designated substance
offence. The sentencing judge failed to consider
the definition in the Act. Upon conviction, the
first step he ought to have taken was to
determine whether the property was “offencerelated property” within the meaning of the Act.
The sentencing judge was then required, pursuant
to s. 16, to order the property be forfeited
because the section mandates the same, subject
to sections 18 to 19.1, by the use of the words
“shall...order that the property be forfeited....”
[para. 10]

And further:
There is no reference to proportionality in regard
to personal property and it is only in regard to
forfeiture of real property that the judge can
take into account the impact of an order of
forfeiture and whether it is proportionate to the
nature and gravity of the offence, the
circumstances surrounding the commission of the
offence and the criminal record of the person
charged or convicted.
Thus, in relation to a dwelling house, the Court
may take into account the impact that an order of
forfeiture may have on the immediate family of
the person charged or convicted of the offence
provided the dwelling house was a member’s
principal residence at the time the charge was
laid and continues to be the member’s principal
residence, and if the member is innocent of any
complicity in the offence or of any collusion in
relation to the offence (s. 19.1(4)).
Parliament
clearly
intended
that
the
proportionality test does not apply to personal
property under the provisions of the Act…[paras.
13-15]

This automatic forfeiture of personal property is
different than the forfeiture provisions of the
Criminal Code which provide for a proportionality
test for both personal and real property. In allowing
the Crown’s appeal of forfeiture and ordering the
truck forfeited, Justice Lane stated:
…The sentencing judge had no discretion but was
required to order forfeiture and erred in failing
to do so. He further erred in considering
proportionality as a factor to be considered when
dealing with the forfeiture of personal property.
Complete case available at www.canlii.org

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Volume 7 Issue 4
July/August 2007

s.16 CDSA FORFEITURE GRID
Property Type

Forfeiture Requirements

Personal property

• Person convicted of designated
Forfeiture mandatory
substance offence
“the court shall”
• Court satisfied on balance of
probabilities
• Property is “offence-related
property”
• Offence committed in relation
to that property

(moveable property
such as lights, ballasts,
venting, vehicles, etc.)

Real property

• Person convicted of designated
substance offence
(immoveable property, • Court satisfied on balance of
real estate, land and
probabilities
buildings erected on it)
• Property is “offence-related
property”
• Offence committed in relation
to that property

Forfeiture Status

Forfeiture discretionary
s.19.1(3) Court “may decide not to order the
forfeiture” after considering whether the impact of
forfeiture is disproportionate to the:
• nature & gravity of offence
• circumstances surrounding commission of
offence
• criminal record of person convicted
s.19.1(4) If real property is a dwelling-house,
court must also consider the impact of forfeiture
on any member of person convicted’s immediate
family using dwelling as principal residence and
whether the immediate family member appears
innocent of involvement in the offence.

s.16 CDSA Legal Lingo

Part I offences include:

“offence-related property” means ... any property ...

•
•

(a) by means of or in respect of which a designated
substance offence is committed,
(b) that is used in any manner in connection with the
commission of a designated substance offence, or
(c) that is intended for use for the purpose of
committing a designated substance offence

•
•
•
•

trafficking in a controlled substance,
possessing a controlled substance for the
purpose of trafficking,
importing a controlled substance,
exporting a controlled substance,
possessing a controlled substance for the
purpose of exporting, and
production of a controlled substance
included in schedules I-IV

“designated substance offence” means (a) an offence
under Part I, except subsection 4(1), or (b) a
conspiracy or an attempt to commit, being an
accessory after the fact in relation to, or any
counselling in relation to, an offence referred to in
paragraph (a)

Volume 7 Issue 4
July/August 2007

www.10-8.ca

23

POLICE CONDITIONAL RELEASE:
ATTACKING CONDITIONS ON A
BREACH CHARGE
There are essentially three options available
to the police after an arrest is made. First,
they may release the arrestee without
conditions. Second, they may hold the
arrestee in custody and detain for a bail
hearing before a court. Or third, the police
themselves may release the arrestee with
conditions.
The Criminal Code allows police officers to release
persons from custody who have been arrested with
or without warrant. Section 503(2) provides
authority for police to conditionally release, by way
of a promise to appear or a recognizance, an arrestee
not brought before a justice. In addition, the police
officer may require that the person enter into an
undertaking with one or more of the following
conditions:
(a) to remain within a territorial jurisdiction
specified in the undertaking;
(b) to notify the peace officer or another person
mentioned in the undertaking of any change in
his or her address, employment or occupation;
(c) to abstain from communicating, directly or
indirectly, with any victim, witness or other
person identified in the undertaking, or from
going to a place specified in the undertaking,
except in accordance with the conditions
specified in the undertaking;
(d) to deposit the person's passport with the peace
officer or other person mentioned in the
undertaking;
(e) to abstain from possessing a firearm and to
surrender any firearm in the possession of the
person and any authorization, licence or
registration certificate or other document
enabling that person to acquire or possess a
firearm;
(f) to report at the times specified in the
undertaking to a peace officer or other person
designated in the undertaking;
(g) to abstain from
(i) the consumption of alcohol or other
intoxicating substances, or
(ii) the consumption of drugs except in
accordance with a medical prescription; or

24

(h) to comply with any other condition specified in
the undertaking that the peace officer or
officer in charge considers necessary to ensure
the safety and security of any victim of or
witness to the offence.
There is very little case law in this area, but the case
law that does exist appears to limit the police powers
of release, unlike a justice’s power which is relatively
broad. However, there seems to be two different
views on whether an accused can attack the
conditions of release at a trial on charges of
breaching a condition. Some courts have ruled that an
accused can challenge the legitimacy of a police
undertaking in an effort to impeach the
effectiveness of a condition, while other courts have
ruled that that rule against collateral attack applies
to police undertakings, as part of the judicial
process, like it does to court orders.

Rule Against Collateral Attack
The rule against collateral attack was described by
Justice McIntrye in R. v. Wilson, [1983] 2 S.C.R. 594
as follows:
It has long been a fundamental rule that a court
order, made by a court having jurisdiction to make
it, stands and is binding and conclusive unless it is
set aside on appeal or lawfully quashed. It is also
well settled in the authorities that such an order
may not be attacked collaterally and a collateral
attack may be described as an attack made in
proceedings other than those whose specific
object is the reversal, variation, or nullification of
the order or judgment.

In short, once a court order is made its integrity
cannot be impeached nor can it be overturned in a
proceeding other than within the original action or an
appeal from it. A “direct attack”, on the other hand,
is an attempt to amend, correct, reform, or vacate a
judgment in a proceeding instituted for that purpose.

Collateral Attack Permissible?
In R. v. Khan, [2003] O.J. No. 5301 (OntCJ) an
officer in charge released a person with the
condition that he “not to be in the front seat of any
vehicle.” This condition was purportedly authorized
under s.503(2.1)(h) of the Criminal Code. He was
subsequently found by police sitting in the front seat
of his car in the parking lot of his residence.

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Volume 7 Issue 4
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The Crown argued that the “victim” to the offence
could be any member of the public and the condition
was therefore authorized under subsection (h). It
was also submitted that the conditions were sensible
and in the interests of public safety. Justice Pringle
of the Ontario Court of Justice, however, concluded
that the release powers of the officer in charge
must be strictly interpreted. In this particular case,
condition (h) “does not include reference to potential
victims or a broad concern for public safety.” The
judge stated:
When I consider the history of this amendment
to the Criminal Code in conjunction with the
scheme set out for judicial interim release, I am
fortified in my conclusion that a specific, narrow
interpretation of s. 503(2.1)(h) is appropriate.
Each of the provisions in 503(2.1)(a) through (g)
are very narrow, including such conditions as
depositing
a
passport,
abstaining
from
communicating with a specific victim or witness,
reporting to the police, or the like. The only
provision that might be broadly read is the one
that is in issue here, which permits the officer to
specify "any condition" that he or she considers
necessary to ensure the safety and security of
any victim of or witness to the offence. [para 15]

And further:
A specific and limited power of the officer-incharge to release a person charged with an
offence fits within the scheme that Parliament
has enacted regarding judicial interim release.
While the scheme requires early release on
specific conditions whenever possible, it does not
purport to give to police officers unfettered
discretion to decide how to protect the public
interest. Police officers are not judicial officers,
and they do not exercise the same powers as a
justice of the peace or a judge for the purpose of
release. According to the scheme of release set
out in the Code, if there are broad concerns for
the public interest, the person charged cannot be
released by a peace officer or officer-in-charge,
and must be taken before a justice: see section
497(1.1) and 498(1.1). [para. 19]

In finding the condition not authorized under
s.503(2.1), the judge acquitted the accused of
breaching his undertaking.
Similarly, in R. v. Skordas, 2001 ABPC 118, the
accused was released on numerous offences,
including two drug offences contrary to s.5(2) of the

Volume 7 Issue 4
July/August 2007

Controlled

Drugs

and

Substances

Act.

His
undertaking included conditions “not to be in
possession of any cell phone or pager or with any
person who had a cell phone or pager.” He was
charged with failing to comply with his undertaking
after a cell phone was found in his residence. Crown
Counsel argued that subsections 503(2.1)(c) and (h)
allowed this condition. Justice Allen of the Alberta
Provincial Court, however, found there was no
authority for police to issue such a condition. He held:
In my view, the emphasis in s. 503(2.1)(c) is on
protection of the victim, witness or other person
identified in the undertaking. The condition in the
case at bar has not been directed to protect
named individuals of this nature. Doubtless, a
byproduct of such a condition would be to prevent
the accused from any reversion to the alleged
drug trafficking which led to the undertaking.
However, this is an incidental consequence and not
one that conforms with s. 503(2.1)(c).
The basket clause found in s. 503(2.1)(h) does not
support the condition either. Certainly, the
section provides that "any other condition" can be
put in an undertaking; but, that wide phrase is
narrowed considerably by the entire context of
that subsection (h). The context is "that the
peace officer or officer in charge considers
necessary to ensure the safety and security of
any victim or witness". So, this section is also
directed toward the protection of specific named
persons. Also, it is specifically referable to safety
and security concerns. For similar reasons, as set
out in my analysis above of the other subsection,
the cell phone condition is not directed toward the
end of protecting a victim or witness. Nor is it, on
its face, done for safety and security of those
persons. [paras. 9-10]

The judge found the cell phone prohibition condition
invalid and the accused was acquitted.

Collateral Attack Impermissible?
In R. v. L.Y. [2002] N.W.T.J. No. 90 (NWTCrt) the
accused was arrested for break and entering a post
office which occurred at about 3 am. He was released
on a Promise to Appear and a police issued
undertaking with a curfew. He was then subsequently
charged with breaching the police imposed curfew
but attacked its legitimacy in the Territorial Court
of the Northwest Territories. The judge held that
the accused could not mount a collateral attack

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25

against the undertaking issued by the police. In
concluding that the rule against collateral attack
applies to undertakings entered into before peace
officers and officers in charge, Justice Bruser
stated:
Peace officers have statutory powers given to
them by parliament. Those powers may be
exercised by a peace officer as part of the lawful
process of the administration of justice and, I
add, a necessary part of it; otherwise, people such
as this young offender would necessarily have to
be detained in custody until they could be dealt
with before a Justice of the Peace or Judge
either by personal attendance or by another
means of doing so.

I am quite prepared to find as fact of the motion
that the officer believed in his own mind that the
condition he imposed was appropriate because of
the circumstances of the offence for which he
was releasing the defendant. I do find, however
that paragraph h does not warrant the term that
was placed in the promise to appear. While I find
the officer did it with no malice, in thinking he was
doing the right thing, the Court must interpret
these criminal statutes by the words that are
there and in my view the condition that was
imposed on the promise to appear, does not fit
within the definition of section eight, nor indeed
within the conditions of any of the other
subsections. [paras. 3-4]

The applicable provisions of section 499 and
section 503 were made by parliament so that
people like [the accused] could be swiftly released
back into the custody of their parents, instead of
being detained and brought before a Justice of
the Peace or Judge. [paras. 38-39]

And further:
The rationale behind the rule [against collateral
attack] is a powerful one. It serves to maintain
the rule of law. It serves to preserve the
reputation of the administration of justice. The
Supreme Court of Canada has not said that it only
preserves the reputation of courts. It has not
said that the powerful rationale is only to
maintain judicial process. If it had meant that,
the Supreme Court of Canada would have said so.
[para. 41]

The accused
undertaking.

was

convicted

of

breaching

his

In R. v. Ciupak, [2003] O.J. No. 4146 (OntCJ) the
accused was arrested for breaching his judicial
interim release by driving an ATV on a highway even
though he had a condition not to drive a motor
vehicle. He was then released on a police undertaking
with a condition “not to operate any motor vehicle.”
The accused brought a motion that the condition “not
to operate any motor vehicle” was not valid. In the
Ontario Court of Justice the court found the
condition imposed may have been appropriate for a
judicial officer to make, but was “not one
envisaged…under the ambit of the legislation on a
promise to appear.” Judge Palmer stated:

26

…Section 503(2.1)(h) states, after a listing of
specific authority to do specific things in an
undertaking or a release on a promise to appear, it
says "to comply with any other condition specified
in the undertaking that the peace officer of
officer in charge considers necessary to ensure
the safety and security of any victim of or witness
to the offence". The Court has to remind itself
that the words of the Criminal Code ought to be
interpreted strictly and it is abundantly evident
from the words and I think quite clear from the
wording, that that authority to impose a condition
under that particular section requires the
necessity of ensuring the safety and security of
any victim or witness to the offence.

The breach charge was dismissed, but the Crown
appealed the ruling to the Ontario Superior Court of
Justice ([2004] O.J. No. 3054 (OntSCJ)). Justice
Marchand, relying on R. v. L.Y., concluded the lower
court erred. He found the judge should not have
embarked on an enquiry as to whether the condition
imposed by police was valid. In his view, it was not
permissible for a court to examine the legality of a
condition given the rule against collateral attack.
Rather, the Criminal Code proscribed a procedure to
change a condition of release under s.503(2.1).

Changing a Condition
Under s.503(2.1) a person subject to a police
undertaking can apply to a justice to replace the
order with a judicial undertaking. Of course, the
justice or judge is not bound by the original
conditions imposed by police and may change, add to,
or remove conditions the court deems necessary.
This process can be engaged any time before or at an

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Volume 7 Issue 4
July/August 2007

appearance on the Promise to Appear. Section
503(2.2) reads as follows:

S.503(2.2) Criminal Code
A person who has entered into any undertaking under
section 2.1 may, at any time before or at his or her
appearance pursuant to a Promise to Appear or
recognizance, apply to a Justice for an order under
subsection 515(1) to replace his or her undertaking, and
section 515 applies with such modification as the
circumstances require to such a person.

17th Annual
Abbotsford Police
Challenge Run

If the prosecutor wants to change or add a condition
they may also apply before or at the appearance for
a judicial undertaking under s.503(2.3).

Saturday September 22, 2007

Conclusion
It appears the law is unsettled on whether police
conditions can be challenged at a trial on a breach
charge. Some courts seem to say that it can be done
while others take the position that a collateral attack
cannot be made. Nonetheless, officers should
carefully consider the circumstances of an offence
and the offender and tailor the release conditions
accordingly.

‘IN SERVICE’
LEGAL ROAD TEST ANSWERS

Register Early and Save!
The Abbotsford Police Challenge is committed to
being a family oriented event and for those who
don’t run there is a 5 km fun run/walk route so no one
is excluded from participating. The Police Challenge
Run began as a Fund Raiser for the Law Enforcement
Torch Run for Special Olympics 16 years ago. Today
it has grown to be one of the more prominent
community events supporting three charities.

1. (a) True—see R. v. Doiron (at p. 21 of this
publication).
2. (b) False—see R. v. Doell (at p. 12 of this
publication). The reason for the stop must be
related to highway traffic matters (such as
checking licences, sobriety, vehicle condition,
etc).
3. (a) True—see R. v. Paziuk (at p. 22 of this
publication). There is no requirement to consider
proportionality for personal “offence-related
property” under the CDSA.
4. (b) False—see R. v. Paziuk (at p. 22 of this
publication). The Criminal Code provisions for
personal “offence-related property” forfeiture
requires a proportionality assessment.
5. (a) True—see R. v. Blake
publication).

Volume 7 Issue 4
July/August 2007

(at p. 29 of this

LOCATION
Abbotsford Civic Plaza, adjacent to Abbotsford
Police Department, 2838 Justice Way, Abbotsford,
BC.

RACE TIME
Both events start at 9:00 am. Warm-up led by Apollo
Athletic Club at 8:30 am, Civic Plaza.

ROUTE
The 10km route is a test of your endurance that
includes a 1 km hill while the 5km fun run route is a
single flat loop.

www.abbotsfordpolice.org

www.10-8.ca

27

TIMIDITY:
6TH DEGREE BLACK BELT?

physical attributes, not the ones the instructor is
comfortable teaching.

Insp. Kelly Keith, Atlantic Police Academy
How is it that someone that is a 6th
degree black belt in karate comes
into a use of force class and shows
one of the highest levels of timidity
amongst all recruits? I recall a student who came into
use of force classes and was downright cocky about
his ability and openly told anyone that would listen
that he held a 6th degree black belt in Karate. When
he was put through reality-based training where
recruits are hit and yelled at, he folded his tent and
became prey.
Let’s get something straight – I think karate and
many other point fighting arts are excellent activities
and great exercises. However, this being said, I also
understand that a student that trains in these arts is
not preparing themselves for a real fight. To make
this jump, one must stress inoculate, gradually expose
themselves to the reality of a real fight where
punches and kicks are not for points, but for keeps.
Fancy kicks and punches generally do not work, and
there is no referee to stop and start things. I am
sure any of us who went to the skating rinks and
played pick-up hockey know of many people who were
great at this type of hockey but could not duplicate
these skills in true game conditions.

Some thoughts:
• Fancy techniques look great, but basic ones work.
Complicated moves fall apart when someone is
punching you in the face.
• Are your moves strength dependant? Strength
dependant moves are great if we get to pick our
opponents. However, in law enforcement, this
unfortunately is not the case. There are no weight
classes, rules to prevent injury, nor referees in our
confrontations. We must attempt to work on
techniques that do not rely on brute strength.
• One size does not fit all. Anyone who knows me
knows this is my pet peeve in how we sometimes
like to train law enforcement officers. This is
downright wrong and does not stand the reality
test in any way, shape, or form. We must work on
techniques that fit our individual strengths, and

28

• Do the techniques work on dynamic attacks or just
when you have a compliant opponent who leaves
their hand out after throwing a punch? Reality is
taken out of the situation if the opponent is
working on the same moves you are and knows what
you are going to be doing so they can block it. In
a real fight we generally do not know what our
opponent is going to strike us with. Steven Seagal
wrist joint locks look awesome in movies – ever
tried them when someone is not leaving his hand
out or punching you with their other hand?
• Will your techniques work in different
environments? It is a very good thing to have a
plan. If you are not able to work around obstacles
such as locked doors, small hallways, tables, hills,
snow, etc. you will lose in real life. To win you must
be able to adapt to all conditions and it cannot
faze you.
• Are your techniques re-active to a specific attack
method? Real fights generally have a flow to them
that encompass different ranges and different
tactics. We have to get away from only teaching
an officer to do one thing if the opponent does a
certain attack in a certain way. If all you do is
train this way, you’ll lose. Good fighters either
consciously
or
un-consciously
understand
principle-based fighting, which is all based around
the principles of the different ranges and tactics.
If an opponent moves his foot one way instead of
another, it may mean you push rather than pull, or
the suspect got tired of punching so he charged
you. No big deal! The tactic just changed so must
we!!!
We must train ourselves and others in law
enforcement this same way. For example, we cannot
train a police officer to win a gunfight by standing
still and shooting at a piece of paper. If we do, we are
teaching basic gun handling skills which is no
different than stick handling in hockey. It is only one
of the fundamental skills, which we must understand
and perform before moving on. If we stop our
firearms training at the marksmanship level are we
truly preparing the officer for a gunfight? I suggest
that teaching an officer to stand still and hit a paper
target is even farther from reality than training the
officer to kick and punch a bag. At least a bag

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supplies resistance. If we stop our gun training at
marksmanship - teaching to stand still, taking your
time, not seeking cover or getting out of the way of
a bullet or suspect running at us with a knife - we are
indeed hampering the officer’s ability to win, which
should be everyone’s ultimate goal. It is not
uncommon to see timidity in point fighters such as
karate; nor is it uncommon to see good marksman who
are timid.
Tactical firearms and reality-based training is a large
piece of a law enforcement officer’s training that we
must keep expanding. With reality-based training,
we are training an officer to be in a gunfight or a
physical altercation – WITH PROPER SAFETY PRECAUTIONS IN PLACE). There is nothing real about
it if we don’t at some time during their training
exchange gunfire or strikes.
In reality-based
training I do not allow the officer to be tested to die!
I don’t need to train an officer how to die, we can
learn that all by ourselves, we do it every week (no
disrespect meant!!). We need to train officers to
fight and win even though they are shot or struck!!!
About the Author - Insp. Kelly Keith is a 20 year
veteran of law enforcement. He presently teaches
Physical Training, Use of Force and Tactical Firearms
to Corrections, Law and Security, Conservation
Officers and Police Cadets at the Atlantic Police
Academy. Kelly is a second degree black belt in JiuJitsu and a Certified Personal Trainer, Strength and
Conditioning Instructor, and a Certified Sports
Nutrition Specialist. He can be reached by email at
KKeith@pei.sympatico.ca

LEGALLY SPEAKING:
Police Decision Making
“This is a situation wherein the police were
reacting to an event unfolding at that very
moment. In such circumstances, there is a
danger that post-event analysis by armchair
quarterbacks in the bar and bench will
apply unrealistically high standards of perfection to situations
were split-second decisions have to be made.” - Yukon
Territorial Court Chief Judge Faulkner, R. v. Blake, 2005
YKTC 62.

Volume 7 Issue 4
July/August 2007

NO PRIVACY INTEREST IN
SHOES REMOVED FROM
ARRESTEE
R. v. Blake, 2007 YKCA
The accused was arrested by police for
a property related offence and
transported to cells. Before being
placed in a cell, the officer took some
of the accused’s clothing, including his shoes, as was
standard police practice. The officer looked at the
soles of the shoes, noticing they were similar to a
shoe impression left at a computer store break and
enter. The officer had recently viewed an email
where a photograph of a shoe impression that had
been left at the scene of a break and enter at a
computer shop was attached. He compared the
photograph to the shoes and believed they were the
same. The officer then seized the shoes and placed
them into an exhibit locker so they could be examined
by the police identification section.
At trial in Yukon Territorial Court on a charge of
breaking and entering the computer store, the
accused argued his rights under s.8 of the Charter
were violated when the police seized his shoes and
and examined the soles. The evidence, he submitted,
should be excluded under s.24(2). The trial judge
agreed that the “search” was unreasonable, but
admitted the evidence any way. In his view, the
accused was in lawful custody and had a diminished
expectation of privacy. The officer acted in good
faith, had reasonable grounds, and the evidence was
important to the break and enter case. The accused’s
application to exclude the evidence was dismissed
and he was convicted of break and enter.
The accused then appealed his conviction to the
Yukon Court of Appeal contending the trial judge
erred in admitting the evidence of footwear
impressions. He submitted that the officer was not
acting in good faith because he was on a fishing
expedition when he turned the shoes over to look at
the soles. As well, he suggested the soles were not in
“plain view”, the officer could only obtain the
evidence through a proper “investigation,” and the
Charter breach was serious; it was deliberate, wilful,
and flagrant.
The Crown, on the other hand,
contended that the examination of the shoe soles

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29

was not a “search” for Charter purposes. They were
passengers, including the accused who was seated in
in the lawful possession of the police and the visual
the front passenger seat. The trafficker went to the
observation and comparison of
officer's vehicle and showed her the cocaine.
“Once removed, the
the soles did not engage s.8
The officer then exited her vehicle
shoes were out of his
because the accused had little
purportedly to obtain money from the trunk,
or no privacy expectation in his
when she signalled other officers who
control. As he had no
effects when he was arrested.
reasonable expectation converged on the scene. The trafficker ran
In finding that the accused did
not have a privacy expectation in
his shoes and therefore s.8 was
not triggered, Chief Justice
Finch stated:

of privacy in the soles of
his shoes, s. 8 was not
engaged.”

Four other officers went to the trafficker’s
vehicle to deal with the passengers. The
accused was forcefully removed from the vehicle and
searched. Police found a plastic baggie in his left
front pants pocket containing nine grams of cocaine
packaged in various ways with a street value of
approximately $1,040.

In my opinion, the [accused] here had no
reasonable expectation of privacy in the tread on
the sole of his shoes. Counsel for the [accused]
clearly conceded that [the officer] had lawful
authority to require the [accused] to remove his
shoes in the interests of his own safety. [The
accused] was wearing the shoes in public at the
time of his arrest in relation to the Yukon Inn
offence. [The officer’s] examination of the shoes,
after they had been removed from the accused,
did not affect the [accused’s] bodily integrity, nor
the autonomy or dignity of his person. Once
removed, the shoes were out of his control. As he
had no reasonable expectation of privacy in the
soles of his shoes, s. 8 was not engaged.

The accused’s appeal
conviction upheld.

was

dismissed

and

the

Complete case available at www.canlii.org

Editor’s note: Judges of the Yukon Court of Appeal
are judges from the British Columbia Court of
Appeal. The Yukon Court of Appeal sits once a year in
Whitehorse while other Yukon appeals are also heard
at other British Columbia court locations.

EXPERIENCE COUNTS IN
REASONABLE GROUNDS
ANALYSIS

At trial the trial judge ruled the accused’s arrest was
unlawful. The judge found that the police collectively
had the subjective belief he was committing an
indictable offence while sitting in the front
passenger seat of the vehicle, however he held the
grounds for arrest were not objectively justified.
The judge then went on to conclude the detention
was a lawful investigative detention but that only a
pat-down search was permissible and the search that
occurred went beyond the legitimate scope of a
search incident to investigative detention. The
search was therefore unreasonable under s.8 of the
Charter and the evidence was excluded under
s.24(2).
The Crown appealed to the British Columbia Court of
Appeal arguing the arrest was lawful and the search
that followed was also legal. Justice Thackray,
writing the opinion for the unanimous appeal court,
agreed. He first discussed the requirements for a
lawful arrest and noted several principles, including:
•
•

R. v. Juan, 2007 BCCA 351
A police officer arranged by telephone
to purchase nine ounces of cocaine
from a drug trafficker known as “Joey”
for $8,100 in a shopping mall parking
lot. While the officer waited in her vehicle in the
parking lot, the trafficker arrived with two

30

and threw a plastic bag, but he was taken to
the ground and handcuffed.

•

Reasonable grounds has both a subjective and
objective aspect;
Subjectively, the officer must have reasonable
grounds on which to base an arrest. This
subjective element is the officer’s own personal
belief; and
Objectively, a reasonable person standing in the
shoes of the officer would also believe that
reasonable grounds for making an arrest exist.
The reasonable person is presumed to have the

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Volume 7 Issue 4
July/August 2007

knowledge and experience of a
knowledgeable and experienced
police officer.

“The test set forth is to establish
that "a reasonable person,
standing in the shoes of the police
officer, would have believed that
reasonable and probable grounds
existed to make the arrest." This
does not mean that the beliefs of
police officers are not necessarily
objective.”

In this case the officers testifying had
considerable experience. Their evidence
was that in their opinion anyone
travelling in the trafficker’s vehicle was
involved in the transaction at some level
such as security, being a lookout,
holding the drugs, or being the supplier
of the drugs. The officers stressed
that this drug transaction was
significant; it involved the sale of nine ounces of
cocaine valued at $8,100 to an undercover officer.

In holding that “no reasonable persons put in the
shoes of the officers could logically come to a
conclusion other than that held by the officers,”
Justice Thackray stated:
The test set forth is to establish that "a
reasonable person, standing in the shoes of the
police officer, would have believed that reasonable
and probable grounds existed to make the arrest."
This does not mean that the beliefs of police
officers are not necessarily objective. However,
in that their conclusions might be perceived to
have a bias or prejudice they must be subjected to
a test of whether a reasonable person standing in
the officers' shoes would have come to the same
conclusion.
[………]
In the case at bar the judge concluded that the
officers' testimony supported the subjective
grounds, but not the objective grounds. He based
this on a finding that the arrest was "simply
because [the accused] was a passenger in the
vehicle." That conclusion overlooked both the
experience of the officers and, most significantly,
their knowledge as to the customs of the illegal
drug trade and their testimony with respect to the
transaction in question. Matters of security
involving protection of the principal were known by
the officers to be important and often resulted in
other people accompanying the principal. The
officers knew this was a high level illegal
commercial drug transaction and that principals do
not take "innocents" along to testify against them
in the case of an arrest, but rather only people who
are trusted. The officers were aware that [the
accused] was involved in such a "purposeful trip."
[paras. 27-28]

Volume 7 Issue 4
July/August 2007

The
police
subjectively
believed the accused was
involved in an illegal drug
transaction and had the
objective grounds to support
the arrest. The search that
followed was incidental to
the lawful arrest and the
evidence was admissible. The
accused’s acquittal was set
aside and a new trial was
ordered.

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

UNFOLDING EVENTS PROVIDED
SUFFICIENT CORROBORATION
OF RELIABLE INFORMER’s TIP
R. v. Silver, 2007 YKCA 4
A drug officer received information
from a reliable informant that the
accused would be driving a silver
Subaru with a black hood and make drug
deliveries to “crack shacks” and hotels in
Whitehorse. The officer knew the accused was
connected to the drug subculture and had previously
seen him drive a Honda with a black hood, registered
to a known local cocaine dealer. As well, the officer
knew the accused was wanted on an outstanding
arrest warrant for cultivating marihuana in British
Columbia.
Later that day, while looking for the vehicle, the
officer saw a silver vehicle with a black hood
travelling toward downtown where the known
cocaine-vending sites were located. The officer could
not identify the driver but radioed ahead to have the
vehicle stopped by a uniformed officer. The vehicle
was stopped and after it was confirmed that the
accused was the driver, he was arrested for the
offence of possession for the purpose of trafficking
and searched. A pat down search at the roadside
revealed a loaded .45 calibre handgun. A short time
later, at the detachment, a strip search revealed nine
packages of crack cocaine weighing 59.3 grams
hidden in the accused’s underwear that had been
modified with a storage pocket.

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31

At trial in Yukon Territorial Court the judge ruled
that the officer receiving the tip had articulable
cause to direct other officers to stop the vehicle and
detain its occupants after he saw the vehicle fitting
the description. He also found the police had
reasonable grounds to arrest the accused and
conduct the search. The accused was not arbitrarily
detained nor unreasonably searched. The evidence
was admissible and the accused was convicted of
possessing cocaine for the purpose of trafficking,
possessing a loaded firearm without a licence, and
possessing a firearm with its serial number removed.
The accused appealed his conviction to the Yukon
Court of Appeal arguing, in part, that the police did
not have reasonable grounds to stop the vehicle and
make the arrest and search. He conceded that the
tip was received from a proven reliable informant,
but submitted the information was conclusory only,
the police should have obtained more detail, and they
did not corroborate the tip in any form.
Justice Low, stating the opinion for the unanimous
Yukon Court of Appeal, found the circumstances as
they unfolded provided sufficient corroboration to
meet the reasonable grounds standard. He stated:
In my opinion, the combination of what the police
knew about the [accused], the substance of the
information given by the informer, as well as that
person’s proven reliability, the distinctive
appearance of the vehicle the [accused] was said
to be driving regardless of its manufacture, and
the direction in which the vehicle was being driven
when first seen, combined, once it was determined
that the [accused] was the driver, to render the
search of the [accused] and the seizure of the
contraband reasonable.
It would have been
advisable for [the drug officer] to have obtained
from the informer a little detail as to how he knew
about the [accused’s] activity. But the sighting of
the [accused] in a vehicle that matched the
distinctive feature of the vehicle description
provided by the informer, plus the direction of
travel, amounted to sufficient corroboration of
the informer’s report to meet the test in Debot.
As the trial judge noted, this was a developing
situation. There was no time to obtain a warrant.
In my opinion, the arrest, search and seizure were
all objectively and subjectively based upon
reasonable and probable grounds….[paras. 13-14]

32

The trial judge did not err in applying the law to the
facts he found and ruling the critical evidence
admissible. The appeal was dismissed.
Complete case available at www.canlii.org

LEGALLY SPEAKING:
Reliability of Informant Information
“In my view, there are at least three
concerns to be addressed in weighing
evidence relied on by the police to justify
a warrantless search. First, was the
information predicting the commission of a
criminal offence compelling? Second, where that information
was based on a “tip” originating from a source outside the
police, was that source credible? Finally, was the information
corroborated by police investigation prior to making the
decision to conduct the search? I do not suggest that each
of these factors forms a separate test. Rather, ...the “totality
of the circumstances” must meet the standard of
reasonableness. Weakness in one area may, to some extent,
be compensated by strengths in the other two.” - Supreme
Court of Canada Justice Wilson, R. v. Debot, [1989] 2 S.C.R.
1140.

BUY THE BOOK
s.254(3) Criminal Code
Where a peace officer believes on
reasonable and probable grounds that a
person is committing, or at any time within
the preceding three hours has committed, as
a result of the consumption of alcohol, an
offence under section 253, the peace officer may, by
demand made to that person forthwith or as soon as
practicable, require that person to provide then or as soon
thereafter as is practicable…such samples of the person’s
breath as in the opinion of a qualified technician…are
necessary to enable proper analysis to be made in order to
determine the concentration, if any, of alcohol in the
person’s blood, and to accompany the peace officer for the
purpose of enabling such samples to be taken.
Note-able Quote
“There is nothing so easy to learn as experience and
nothing so hard to apply. “ - Josh Billings

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Volume 7 Issue 4
July/August 2007

ABORTED BREATH SAMPLE
WOULD NOT ASSIST DEFENCE
R. v. Melville, 2007 ONCA 520
After a proper breathalyzer demand the
accused provided a breath sample into an
intoxilyzer, registering a reading of
93mg%. The qualified technician then
waited 15 minutes, as was standard practice, and
attempted to obtain a second sample. The instrument
began to analyze the sample. The reading increased in
small amounts but dropped precipitously, causing the
technician to abort the sample, decide it was
unsuitable, and demand a further sample. The third
sample yielded a reading of 103mg%, but the police
never kept a printout of the aborted analysis. The
accused was convicted in the Ontario Court of
Justice on a charge of over 80mg%.
The accused appealed to the Ontario Court of Appeal
arguing that the failure of the police to keep a
printout or other record of the aborted analysis
violated his rights under s.7 of the Charter, thereby
invalidating the analysis of the two good samples upon
which his conviction was based. In a unanimous
endorsement, the appeal was dismissed. The Ontario
Court of Appeal held:
The language of s. 254(3) of the Criminal Code …
contemplates that a qualified technician may in
the course of administering a test, determine that
a sample is unsuitable in which case a demand for
a further sample may be made under the scheme.
In this case, the qualified technician made the
assessment based on her training that the second
sample provided by the [accused] was not suitable
for analysis. Whether she was ultimately, as a
matter of science, right or wrong in that
assessment is irrelevant. Under the statutory
scheme, she was entitled to make that assessment
in good faith. Her good faith was not challenged
in this proceeding.
Once it is accepted, as it must be on the
authorities, that the qualified technician was
entitled to reject the second sample as
inadequate, the results of the partial or aborted
analysis of that inadequate sample could not have
potentially assisted the [accused] in any way in his
defence on the “blowing over” charge. [references
omitted, paras. 4-5]

The accused’s conviction stood.

HIT & RUN: DRIVER MUST BE
AWARE OF ACCIDENT BEFORE
LEAVING
R. v. Noseworthy, 2007 NLCA 45
A pedestrian walking along the side of a
road was struck a glancing blow by a
passing vehicle that did not stop. He was
knocked to the ground but was not
seriously injured. Investigating police determined
that the accused was the driver of the truck that
struck the pedestrian. He was charged with
dangerous driving, hit and run, and breach of
probation.
At trial in Newfoundland Provincial Court the accused
denied that his truck had struck the pedestrian,
although other evidence suggested that it had. The
trial judge found that the accused would have been
aware, at some point, that he had struck the
pedestrian. The trial judge acquitted the accused of
dangerous driving, but convicted him of hit and run
and breach of probation. His appeal to the Supreme
Court of Newfoundland was unsuccessful. He then
appealed to the Newfoundland Court of Appeal.
Justice Rowe, stating the opinion of the Appeal
Court, first noted that for a person to be convicted
of hit and run under s.252(1)(a) of the Criminal Code
the Crown needs to prove that the person was aware
they had been involved in an accident at the time they
failed to stop. “If [the accused] became aware he had
struck a person only after he had left the scene of
the accident, then he would not be guilty of
contravening s.252(1)(a),” said Justice Rowe.
“At some point”, the term used by the trial judge, was
broad enough to include a time after the accused left
the scene, such as five minutes later. By using this
term, the trial judge made it unclear whether he was
convicting the accused on the basis he was aware of
the accident when he left the scene or became aware
it after he left. Since there was evidence consistent
with the accused being aware of the accident at the
time he left the scene as well as evidence consistent
with him becoming aware only after he left the scene,
the appeal was allowed and a new trial was ordered.
Complete case available at www.canlii.org

Complete case available at www.ontariocourts.on.ca

Volume 7 Issue 4
July/August 2007

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33

FIREARM BLOCKADE
CONSTITUTIONAL
R. v. Clayton & Farmer, 2007 SCC 32
Police received a 911 call at about 1:22
am from a male located in a donut shop
across the street from a large strip
club. The caller, who identified himself
by name, told police there were about 10 black males,
casually dressed, congregating outside the strip club
and that four of them had handguns. The caller also
described four vehicles by colour and model (a tan
Lexus, a black Jeep Cherokee, a black GMC Blazer,
and a white Acura Legend) associated with the group
of men. When asked to check, the caller confirmed
there was still a crowd in the parking area but that
one of the vehicles had left. The gun call was
dispatched and police officers responded.
The first officers on scene saw a group of men
outside the club, but no weapons. Two officers
positioned themselves at the parking lot’s rear exit
at 1:26 am, intending on stopping and searching any
vehicle and its occupants leaving the lot. At 1:27 am
the first vehicle—a black Jaguar—arrived, but it did
not resemble the description of any of the reported
associated vehicles. Police nonetheless pulled their
car in front of it, blocking the exit. Both men were
black—Farmer was driving and Clayton, a passenger,
wore driving gloves on this warm night. Police told
them they were investigating a gun call and asked
them to step out of the vehicle.
Clayton complied, but was evasive when questioned
and appeared nervous, while Farmer exited with some
reluctance-it took three requests to get him out of
the car. An officer placed his hand on Clayton to
direct him to the back of the car, but a struggle
ensued and Clayton fled towards the strip club. Police
pursued and Clayton was apprehended trying to enter
the club. A bouncer identified him as one of the males
having a gun. He was handcuffed and police found a
loaded handgun in his pocket. Farmer, who remained
at the car, was also searched. A loaded handgun was
found tucked in the back of his pants. Both men were
charged with numerous firearms offences.
At their trial in the Ontario Superior Court of
Justice both men were convicted after the judge
ruled the evidence admissible. In his view, the initial

34

brief detention of the vehicle to screen cars leaving
the area was permissible at common law. However,
the officers intended on searching the men from the
moment the vehicle was stopped without having a
reasonable and individualized suspicion they were
involved in a crime. Continuing the detention by
removing them from the car to search them resulted
in their rights to be secure from arbitrary detention
and unreasonable search violated. Despite the
breaches, in the judge’s view the exclusion of the
guns would bring the administration of justice into
greater disrepute than to admit them.
Farmer and Clayton then appealed to the Ontario
Court of Appeal. Justice Doherty, writing the
unanimous judgment, found the Charter rights of
both accused had been seriously infringed. There was
neither statutory authority for the roadblock nor any
reasonable individualized suspicion that could justify
an investigative detention as described by the
Supreme Court of Canada in R. v. Mann. Nor was this
a case involving a roadblock similar to the type used
by police for highway safety matters. As such, any
authority for the type of roadblock undertaken in
this case would have to find mooring in the ancillary
police power doctrine (Waterfield test).
At common law, the ancillary power doctrine
recognizes that police conduct interfering with a
person’s liberty can be justified if the police were (1)
acting in the course of their duty and (2) their
conduct was a justifiable use of police powers
associated to that duty. In assessing whether police
conduct is justified a number of factors must be
considered, including:
•
•
•
•
•

the duty performed,
the liberty interfered with,
the nature and extent of the interference,
the extent to which some interference with
liberty is necessitated to perform the duty, and
the importance of the duty to the public good.

In this case, Justice Doherty held that the police
had a duty to investigate and prevent crime and
stopping the car was done while acting in the course
of that duty. However, he found the police conduct
did not pass the second prong of the ancillary power
doctrine—the justifiability factors. Here, the
roadblock engaged the criminal process against the
targets of it by determining whether the occupants

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Volume 7 Issue 4
July/August 2007

of a stopped vehicle were involved in criminal
activity. The detention and searching of all vehicles
and occupants leaving the parking area was a
profound interference with individual autonomy and
privacy. “Being stopped by the police, questioned
about guns, told to exit the vehicle, and made to
stand against the vehicle in a public place while the
police examine the inside of the vehicle, can be a
frightening and humiliating experience,” said Justice
Doherty.
Although he agreed that the use of roadblocks to
investigate crimes and apprehend criminals might be
a justifiable intrusion on individual liberties in some
cases, this was not one such case. Since the police
did not have grounds to suspect any specific person,
a roadblock could only be justified if there were
reasonable grounds to believe a serious crime had
been committed and the roadblock may apprehend
the offenders. Here, the description provided by
the 911 caller was detailed. The perpetrators were
described as black males, casually dressed, and the
specific make and models of four vehicles connected
to the men were provided.
Rather than limiting their stops to persons in
vehicles that resembled the description provided by
the 911 caller, the police cast too wide a net in
stopping all vehicles leaving the parking area without
having reasonable grounds to believe stopping
motorists not matching the description would result
in apprehending the perpetrators and recovering the
guns. Had the police narrowed or tailored their focus
consistent with the information provided, the
accused’s vehicle would not have been stopped and it
would have been free to pass.
Since the police could not justify stopping all
vehicles under the ancillary power doctrine, the stop
was unlawful and the accuseds were arbitrarily
detained. Questioning them at the vehicle and the
examination of the vehicle’s interior also violated
their rights under s.8. However, unlike the trial
judge, the appeal court ruled the handguns
inadmissible as evidence. The Charter violations
were characterized as significant. The police
intended to stop and search all vehicles and their
occupants. The accuseds were “entitled to proceed
on their way [but] found themselves in a potentially
demeaning and frightening confrontation with

Volume 7 Issue 4
July/August 2007

police.” The fact Clayton and Farmer were in
possession of handguns did not minimize the
breach—“criminals
do
not
have
different
constitutional rights than the rest of the
community,” said Justice Doherty.
The Court was also very critical of police training.
Not only did the police fail to consider the relevant
factors in assessing the ancillary power doctrine,
they did not consider and balance the demands of
their duties against interfering with individual
liberties. Nor did they have an appreciation for the
scope of their search powers. Police ignorance of the
limits of their ancillary powers was institutional and
related to their training. The handguns were ruled
inadmissible, the appeal was allowed, the convictions
were quashed, and acquittals were entered on all
charges.

The Supreme Court Weighs In
The Crown appealed the Ontario Court of Appeal
ruling to the Supreme Court of Canada. Although all
nine judges allowed the appeal and reinstated the
accuseds’ convictions, they were divided on how they
reached that result. The majority (six judges) ruled
that the police did not arbitrarily detain the accused
and the resultant searches were reasonable. The
minority (three judges) found the detentions were
arbitrary but saved by s.1 of the Charter. They also
found the searches were reasonable. Both the
majority and minority did, however, recognize that it
was important to address each stage of the police
interaction, including the initial detention, the
continued detention, and the searches.

The Initial Detention
Justice Abella, writing the opinion for the majority,
first determined whether the police were acting
within the scope of their common law powers when
they detained the accused. A lawful detention at
common law, she noted, is not arbitrary. In applying
the criteria for the Waterfield test, the majority
agreed the police were acting in the course of their
duty to investigate and prevent crime when they
stopped the car, passing the first prong of the
analysis. As for the second prong, the justifiability
criteria, the majority parted company with Justice
Doherty and found the police conduct in stopping all
vehicles leaving the parking lot was a justifiable use

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35

of police powers associated with their duties.
Justice Abella wrote:
The justification for a police officer’s decision to
detain…will depend on the “totality of the
circumstances” underlying the officer’s suspicion
that the detention of a particular individual is
“reasonably necessary”. If, for example, the
police have particulars about the individuals said
to be endangering the public, their right to
further detain will flow accordingly. As explained
in Mann, searches will only be permitted where the
officer believes on reasonable grounds that his or
her safety, or that of others, is at risk.

offence without waiting for the harm to
materialize and had reasonable grounds for
believing that stopping cars emerging from this
parking lot would be an effective way to apprehend
the perpetrators of the serious crime being
investigated. [references omitted, paras. 30-33]

The majority found that “requiring the police to stop
only those vehicles described in the 911 call imposes
an unrealistic burden on the police in this case, and
one inconsistent with their duty to respond in a
timely manner, at least initially, to the seriousness of
the circumstances.” In holding that the initial
detention was not arbitrary, Justice Abella stated:

The determination will focus on the nature of the
The police had reasonable grounds to believe that
situation, including the seriousness of the offence,
public safety was at risk, that handguns could be
as well as on the information known to the police
in the possession of those leaving the parking
about the suspect or the
area, and that stopping cars
crime, and the extent to
“The
police
had
reasonable
grounds
to
leaving that area could result
which the detention was
in their apprehension. The
believe
that
public
safety
was
at
risk,
that
reasonably responsive or
taken by the police in
tailored
to
these
handguns could be in the possession of steps
this case in stopping the car,
circumstances, including
those leaving the parking area, and that based on the information they
its
geographic
and
stopping cars leaving that area could
had, were reasonable and
temporal scope.
This
result in their apprehension. The steps reasonably tailored to the
means
balancing
the
information they had.
seriousness of the risk to taken by the police in this case in stopping
public or individual safety
In the totality of the
the car, based on the information they
with the liberty interests
circumstances, therefore, the
had, were reasonable and reasonably
of members of the public
initial detention in this case
to determine whether,
tailored to the information they had.”
was reasonably necessary to
given the extent of the
respond to the seriousness of
risk, the nature of the stop is no more intrusive of
the offence and the threat to the police’s and
liberty interests than is reasonably necessary to
public’s safety inherent in the presence of
address the risk.
prohibited weapons in a public place, and was
In my view, both the initial and the continuing
detentions of Clayton and Farmer’s car were
justified based on the information the police had,
the nature of the offence, and the timing and
location of the detention.
The police set up the initial stop in response to a
911 call identifying the presence of about ten
“black guys”, four of them with guns. The police
described what they were doing as setting up
perimeter surveillance posts to secure the
confined geographical area where the offence
they were investigating had reportedly taken
place. The police had reasonable grounds to
believe that there were several handguns in a
public place. This represented a serious offence,
accompanied by a genuine risk of serious bodily
harm to the public. The police were entitled to
take reasonable measures to investigate the

36

temporally,
geographically
and
logistically
responsive to the circumstances known by the
police when it was set up. The initial stop was
consequently a justifiable use of police powers
associated with the police duty to investigate the
offences described by the 911 caller and did not
represent an arbitrary detention contrary to s. 9
of the Charter. [paras. 40-41]

The Continued Detention
As noted, the majority concluded that the continued
detention was lawful because the officers
determined that Clayton and Farmer matched the
race of the suspects in the 911 call (they were black)
and that Clayton, a passenger, was wearing leather
gloves on a non “glove weather” (warm) night and gave
strange and evasive answers on being questioned. As

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well, the vehicle came from the scene of the
reported crime, it was the first vehicle to leave the
parking lot within minutes of when the crime was
reported, and that it avoided leaving by the front
exit, where the other officers were arriving, instead
heading towards the rear exit. Justice Abella stated:
Taken together, these facts, objectively, gave
rise to the reasonable suspicion that the
occupants of the Jaguar could be in possession of
the handguns reported in the 911 call, and that,
as a result, the lives of the police officers and of
the public were at risk, justifying their continued
detention. This constellation of circumstances
was such that the police were required to, and
did, respond quickly and appropriately to the
information they had about the possession of
guns by individuals in this particular parking lot.
They treated the two occupants as equally likely
to be connected to the serious crime under
investigation. They were reasonable in taking this
approach once they saw that both individuals, in a
car that had just left the crime scene, matched
the general description they had.

In the s.1 analysis, the minority opined that “the
protection of society from the flaunting of illegal
handguns in a crowded public place is clearly pressing
and substantial.” The roadblock, which would stop all
vehicles, was also a rational response to the 911 gun
call. Randomly stopping only some vehicles would not
have served the purpose of the blockade. And finally,
the blockade was properly tailored to the
circumstances. Although it was a complete blockade,
it was a brief imposition on motorists leaving the
parking lot. Justice Binnie stressed the difference
between the type of stop in this case and an
investigative detention based on reasonable
suspicion:

I accept…that had the police stopped the vehicle
and discovered that the occupants did not
correspond to the description given by the 911
caller, they would have had no reasonable grounds
for the continued detention of the occupants.
For example, had the caller described individuals
who were white, the police would not have had
reasonable grounds for the continued detention
of non-white occupants. On the particular facts
of this case, however, based on their subsequent
observations, there were reasonable grounds…for
the police to conclude that the two occupants of
the car they had stopped were implicated in the
crime being investigated. [paras. 46-47]

The Searches
Searches of both the occupants were justified for
safety reasons as an incident to their detention.
“The search was necessarily incidental to the lawful
investigative detention and…there was no violation of
s.8,” said Justice Abella.

The Minority View
Like the majority, the minority also would allow the
appeal and restore the accused’s convictions, albeit
for different reasons. Justice Binnie, authoring the
opinion for the minority, found the police had no
particular grounds against the accused and the

Volume 7 Issue 4
July/August 2007

blockade, designed to stop all motorists leaving the
strip club regardless of description, was arbitrary.
As the minority noted, it was important to
distinguish between what the police knew at the time
of detention and what they knew after the detention
when they had an opportunity to observe the
vehicle’s occupants. Before they stopped the car,
the police had no individualized suspicion of the
accused or their vehicle nor did they use other
criteria to tailor the roadblock. Instead, the
roadblock was set-up to stop all vehicles leaving the
strip club thus it was ruled arbitrary. These
arbitrary detentions were, however, saved by s.1 of
the Charter.

A Clayton and Farmer stop is not the same thing
as a Mann investigative detention although it may
(or may not) lead in that direction. A Clayton and
Farmer stop of all vehicles is established for
screening purposes. A Mann inquiry may then be
undertaken only if reasonable grounds for
individualized suspicion emerge. I conclude that
the common law at issue in this case satisfies the
requirement of proportionality (in fact “tailored”
is more or less a synonym for proportionality). In
such circumstances, anything less than a full
blockade would not serve the purpose which has
already been found to be pressing and
substantial.
Moreover, for the reasons
mentioned, the law’s salutary effects exceed its
deleterious effects. [para. 118]

The minority ruled that the police had the power at
common law to set up the roadblock when they have
reasonable grounds to believe that a serious
firearms offence was committed and that the
roadblock may apprehend the perpetrators. Here,
the police arrived within five minutes of the 911 call,

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37

limited their roadblock to the parking lot of the
strip club where individuals would be leaving through
one of two available exits, and had reasonable
grounds to believe a serious crime had been
committed and the perpetrators might be
apprehended by means of the roadblock. As well, the
police were entitled to question the vehicle’s
occupants to determine if they had information
about the incident. A decision would then be made to
let the vehicle go or detain it for further
investigation if an individual suspicion (articulable
cause) existed. This power of detention was used to
screen cars for further inquiry.

convert the initial blockade stop into an investigative
detention under Mann. In addition to the initial
information police had, they determined after the
stop that Clayton was black and was wearing gloves
on a warm night, suggesting a concern about leaving
fingerprints. This provided the necessary grounds
for police to remove him from the car and search
him. However, he bolted and was subsequently
apprehended and searched. Clayton’s gun was found
and was properly admissible as evidence. The search
of Farmer was similarly reasonable, within the
bounds of an investigative detention. Justice Binnie
sated:

The minority also held the searches lawful:

I think that it would have been foolhardy for the
police, in the context of a gun
As to s. 8, Mann holds that in a lawful
“If evidence of the crime
call, to leave Farmer, possibly
detention situation the police may
emerges in the course of a valid armed, in the car while they
undertake a pat-down search if the
went about their business with
officer believes “on reasonable pat-down search incidental to the
Clayton. Nor could the police
grounds that his or her safety, or
detention for the purpose of
be expected to allow Farmer
the safety of others, is at risk”….
police safety, the evidence will to drive away. If Farmer, left
The issue on the proper scope of the
alone in the driver’s seat, had
be admissible.”
search is clouded in this case
taken a shot at the police,
because (unlike Mann) the presence
there
would
have
been
of handguns not only constitutes a police safety
legitimate questions raised about police training
issue but constitutes the evidence of the offence
and police judgment and the unreality of a law
being investigated. It is not possible to say here,
that led to such an avoidable result.
The
as it was in Mann, that the police went too far
[accuseds] were travelling together and the
when their search proceeded beyond safety
concerns about officer safety raised by the
considerations to evidence collection. Here, the
glove-wearing, possibly gun-flourishing Clayton
two purposes were intertwined and not separable.
gave rise to a sufficient concern about the driver
Nevertheless, I would affirm that after the police
to warrant a pat-down search of Farmer for
officers had observed the [accuseds] and engaged
officer safety incidental (at that point) to
in conversation with them, the police had
Farmer’s continued detention.
authority here to conduct a pat-down search
incidental to their continued detention. It would
The Crown’s appeal was allowed and the accused’s
be illogical to hold that a pat-down search is
convictions were restored.
justified where the detention relates to a nonComplete case available at www.scc-csc.gc.ca
violent offence (as in Mann) but not where the
police are facing serious issues of personal safety
when responding to a gun call... Equally, it would be
illogical to be solicitous of the safety of
individuals who may or may not be at risk at the
calling end of the 911 call (Godoy…) but not of the
safety of the police who, in the course of
“[A] “psychological” detention includes
roadblock duty, are putting themselves, at least
three elements: a police direction or
potentially, in harm’s way. If evidence of the
demand
to an individual; the individual’s
crime emerges in the course of a valid pat-down
voluntary compliance with the direction or
search incidental to the detention for the purpose
of police safety, the evidence will be admissible….
demand, resulting in a deprivation of liberty
[para. 104]
or other serious legal consequences; and the individual’s

LEGALLY SPEAKING:

Psychological Detention

Once the accused were stopped the police acquired
grounds of reasonable individualized suspicion to

38

reasonable belief that there is no choice but to comply.”
Ontario Court of Appeal Justice Laskin, R. v. Grant (2006)

www.10-8.ca

Volume 7 Issue 4
July/August 2007

2006 CANADIAN CRIME STATISTICS
Statistics Canada recently released its report
entitled “Crime Statistics in Canada, 2006”.
Highlights include:
• National crime rate dropped by 3%.
• National homicide rate dropped by 10%.
• B.C.’s homicide rate rose by 6%.
• Youth crime rate increased by 3%. Youth homicide rate rose by
17%. It is now at its highest level since data was first collected in
1961.
• Total drug offences increased by 2%. Marihuana offences
dropped by 4%, but cocaine offences rose by 13% and other drug
offences, which include crystal meth and heroin, rose by 8%.
• B.C. had the highest provincial drug offence rate at 617 per
100,000. This was more than twice the next highest rate
(Saskatchewan at 275) and almost five times Newfoundland’s and
P.E.I.’s rate (127 and 128 respectively).
• Impaired operation rate (including over 80mg% and refusal)
dropped by 6% nationwide. All provinces saw a decrease in
impaired operation rates except P.E.I., which remained unchanged,
and Newfoundland, which increased by 17%. Saskatchewan had
the highest provincial impaired rate at 474 per 100,000, more
than three times Ontario’s rate.

Canada’s National Crime Rate
7,518 offences per 100,000

YT
20,593

Criminal Code Crime Rates
for Census Metropolitan Areas
(CMA) 2006 - Top 15
CMA

Crime Rate

Regina SK

12,415

Saskatoon SK

12,209

Abbotsford BC

11,224

Winnipeg MB

11,085

Vancouver BC

10,609

Edmonton AB

10,079

Victoria BC

10,066

Thunder Bay ON

9,031

Halifax NS

8,715

London ON

8,137

Saint John NB

7,885

Montreal QC

6,912

St John’s NF

6,773

Windsor ON

6,754

Kingston ON

6,737

Provincial & Territorial Crime Rates
per 100,000 population.
NWT
41,468

BC
11,365

NU
31,265

NF
6,055

MB
11,678

AB
9,523
SK
13,711

ON
5,689

NB
6,111

Source: Statistics Canada, 2007,
Crime Statistics in Canada, 2006,
Catalogue No:85-002-XIE

Volume 7 Issue 4
July/August 2007

PEI
6,793

QC
15,909

www.10-8.ca

NS
8,069

39

April 14-16, 2008

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 2008 Conference in Vancouver, British Columbia,
location of the 2010 Winter Olympics. This is Canada’s largest police leadership
conference. The conference is held every two years and attracts international,
national and regional speakers and delegates.

The theme for this year is:
The Future of Police Leadership
One World, One Voice, One Purpose.
The subtitle of the conference ‘One World’ recognizes the globalization
of law enforcement and crime, ‘One Voice’ recognizes the
convergence of communications and technology, And ‘One Purpose’,
to break down some of the institutional barriers and recognize law
enforcement’s primary goal of crime reduction and prevention.

40

www.10-8.ca

Volume 7 Issue 4
July/August 2007