POLICE ACADEMY

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

INTENTION TO DRIVE NOT
NECESSARY FOR
CARE & CONTROL
R. v. Don Vann, 2002 SKQB 89
In the middle of winter a police
officer observed the accused
walking from a bar, where he had
been drinking all day, and go
between a car and truck.
The
officer heard a vehicle start, noticed exhaust fumes,
and pulled in behind to find the accused, wearing only a
short sleeved t-shirt, in the driver’s seat without his
seatbelt on. The vehicle was running, the engine
revving, the lights were off, but the heater was on.
The accused testified that he had made arrangements
with another person to drive him home and had entered
his vehicle to wait for the ride and had started the
vehicle only to stay warm; he had no intention to drive.
The accused nonetheless was convicted of care and
control of a motor vehicle with a blood alcohol level in
excess of 80mg%. The accused appealed his conviction
to the Saskatchewan Court of Queen’s Bench arguing,
among other grounds, that the judge failed to properly
consider his intent.
In proving care and control, the Crown can rely either
on the presumption found in s.258(1)(a) of the Criminal
Code or by proving actual care and control. In the
former, the intent of the accused is important in
rebutting the presumption but for the latter, it is
irrelevant whether the person had the intent to drive1.
In this case, McIntyre J. noted that the accused had
not been convicted on the basis of the presumption but
upon Crown having proven actual care and control which
has been defined by the Supreme Court of Canada in R.
v. Toews [1985] 2 S.C.R. 119 as including “acts which
involve some use of the car or its fittings and
equipment, or some course of conduct associated with
the vehicle which would involve a risk of putting the

1

The Court noted that there are some circumstances where an intent not to drive
or abandoning the intent to drive may be relevant to actual care and control (citing
R. v. Sherbrook (1998) 164 Sask. R. 183 (Q.B.)) but did not apply to the case at bar.

Volume 2 Issue 5
May 2002

vehicle in motion so that it could become dangerous”.
In this case, the Court held, at para. 16:
The [accused] had been behind the wheel for 20 seconds.
The engine had been started, the heater was on and the
[accused] was revving the engine. He clearly performed
acts involving the use of the car, its fittings or
equipment, whereby the vehicle may unintentionally be
set in motion. All it required was to put the vehicle in
reverse.

It was not necessary to determine whether the
accused had the intent to drive or simply to keep warm.
Care and control had been satisfied and the appeal was
dismissed.
Complete case available at www.lawsociety.sk.ca

SEARCH OF GLOVE BOX
FOLLOWING IMPAIRED ARREST
REASONABLE
R. v. Neigum, 2002 SKPC 26
After responding to a call reporting
a suspected impaired driver, a police
officer found the accused alone,
seat belted in, and sleeping in the
driver’s seat of a truck parked
slanted on the shoulder of a road with its engine
running. The officer arrested the accused for care and
control while impaired, read him his right to counsel,
and told him he could call a lawyer at the police station.
While waiting for back up and a tow truck, the officer
searched the accused’s vehicle and found a pop bottle
containing an alcoholic beverage under the seat. The
officer also opened the glove box looking for alcohol
and found a plastic bag in plain view while detecting an
odour of marihuana. Inside the bag, the officer found a
zip lock bag containing marihuana.
At the police station, the officer asked the accused
whether he would like to call a lawyer; he responded
“No. I’ll call later”. The officer then showed the
accused the marihuana he had found and stated,
“You’re charged with impaired driving and there is this

other thing too that you have to know I found in the
truck”. While in the breathalyser room the officer told
the accused that if he changed his mind about the
lawyer he would have an opportunity to talk to one. At
this time the accused asked about the marihuana and
the officer responded that as soon as the tests were
done they would talk about it. Following the tests, the
officer interviewed the accused about the marihuana
without any further mention of contacting a lawyer.
The accused suggested that his s.10(b) Charter right
to counsel was violated and the warrantless search of
the glove box breached his s.8 Charter right.

s. 10 (b) Charter
While the accused failed to establish a violation of his
right to counsel respecting the impaired charge (he was
advised or reminded of his right 3 times - at the scene,
on arrival at the office, and in the breathalyser room),
his waiver respecting the marihuana charge was “not so
clear”:
[The accused’s] response to [the officer], when invited to
let them know should he change his mind about contacting
a lawyer, should have alerted [the officer] that the
accused may wish to speak to a lawyer before being
questioned with respect to the marihuana charge. The
accused asked about the marihuana in response to and in
the context of [the officer’s] mention of phoning a
lawyer. [The officer’s] response to [the accused] implied
that he need not be concerned about that charge just
then, that they would first finish dealing with the matter
at hand, being the breath tests.

Meekma J. concluded “there was no clear waiver by the
accused of his right to counsel prior to being
questioned with respect to the drug charge”. His right
to counsel was thus violated.

s. 8 Charter
With respect to the warrantless search and the finding
of the marihuana, the Court held “the search of the
glove compartment…for alcohol was reasonable and
justified incidental to [the accused’s] arrest for care
and control of a motor vehicle while impaired by
alcohol”.
As a result, the evidence concerning both the breath
samples and drug exhibits was admissible while the
statements regarding the marihuana were excluded.
Complete case available at www.lawsociety.sk.ca

Volume 2 Issue 5
May 2002

REQUEST FOR VIDEO LINK OF
OFFICER’S TESTIMINOY
DISMISSED
R. v. Raj, 2002 BCSC 193
The Crown made an application that
the principal police witness on a drug
case be allowed to testify via video
link.
The
RCMP
officer
was
transferred from British Columbia to
a 3-person island detachment off the coast of New
Brunswick. The Crown submitted that the officer’s
absence in the remote detachment would leave the
island under policed and would involve overtime pay and
approximately $4000 in travel expenses. The accused
argued that the most significant matter at trial was the
search of the vehicle, which uncovered the 3 kilograms
of marihuana at a traffic roadblock, and the credibility
and reliability of the officer’s evidence was at issue. In
this vein, the video link made it difficult to observe the
body language and facial expressions of the witness
officer. In dismissing the Crown’s application, the
Supreme Court of British Columbia concluded “there is a
reasonable likelihood that taking [the] evidence by video
link would impede or impact negatively on the ability of
the defence counsel to cross-examine the [officer]” and
“may well compromise the accused’s right to make full
answer and defence”.
Complete case available at www.courts.gov.bc.ca

IMPAIRED REASONABLE
GROUNDS: LACK OF WITNESS
IDENTIFICATION NOT
RELEVANT
R. v. Mesenchuck, 2002 BCSC 448
A police officer responded to a noninjury motor vehicle accident at a
rural intersection. A witness to the
accident told the officer that the
male driver was walking down the road. The officer,
who could see a lone person about 300 yards away,
went after and came within about 100 yards when the
person looked over his shoulder and jumped into tall
grass. The officer called out – threatening to bring a
police dog – and about 10 minutes later the accused was
located. The officer detected a strong smell of “beer

2

or alcohol” on the accused’s breath, noted slurred
speech, and observed that the accused was unsteady on
his feet. After forming his opinion the accused was
impaired, the officer arrested and transported him to
the police office. The accused was presented to a
qualified breathalyzer technician but failed to provide
samples. Although the accused was acquitted of care
and control while impaired because none of the
witnesses were able to identify him at trial as the
driver, he was nonetheless convicted of failing to
provide a breath sample.
The accused appealed his conviction to the Supreme
Court of British Columbia arguing, among other
grounds, that the officer did not possess adequate
reasonable and probable grounds to demand breath
samples. The accused suggested that because the
witnesses failed to identify the accused as the driver
of the vehicle in question, the officer’s demand was
improper. In assessing whether a proper demand was
made by the police officer, the Court must direct
itself to the belief of the officer at the time of the
demand and not on the inability of witnesses to
identify the accused. Reasonable and probable grounds
to demand a breath sample requires a subjective belief
(the officer’s mind) based on objective criteria. In this
case, the objective criteria grounding the officer’s
belief that the accused was the driver was summarized
as follows:
•

•

•

•

“[a witness] pointed out a male walking
approximately three hundred yards down the road
from the intersection. He was the only person
walking on the road;
“[the officer] traveled approximately two hundred
yards down the road when he saw the man look
over his shoulder and dive into the underbrush of
the ditch area;
“[the
officer]
searched
this
area
for
approximately ten minutes and then found [the
accused] lying down at the bottom of an
approximately five foot deep ditch in about three
inches of water;
“when helping [the accused] from the ditch, [the
officer] observed him to be wet, unsteady on his
feet, slurring his speech and exhibiting a strong
smell of alcohol.

In dismissing the accused’s appeal, McKinnon J. found
the “totality of the evidence relating to [the officer’s]
involvement” allowed the trial judge to reasonably

Volume 2 Issue 5
May 2002

conclude the officer had the requisite grounds to make
the demand.
Complete case available at www.courts.gov.bc.ca

WARRANTLESS IN-HOME
ARRESTS: LOOKING FORWARD
FROM FEENEY
Sgt. Mike Novakowski

The legal authority to arrest a person
does not by itself justify an entry into
a dwelling house to effect the arrest.
There is a recognized distinction
between the police power to arrest and
the police power to enter to carry out
the arrest and they are analytically
distinct. The former deals with the
power to make the arrest while the
latter deals with the power to enter to
carry it out. Since the decision in R. v.
Feeney [1997] 2 S.C.R. 13, entry to effect an arrest in
a dwelling house is generally prohibited unless the
police are in fresh pursuit or in cases of exigent
circumstances. To comport with Charter values, entry
is permissible when the interests of law enforcement
outweigh the privacy interest of the individual in the
home. This article will examine some of the recent
cases from provincial appellate courts concerning
arrests in private residences.
In R. v. Duong and Tran 2002 BCCA 43, the most
recent of these cases, police officers canvassed a
neighbourhood for possible witnesses after responding
to a home invasion. One of the officers approached the
front door of a residence and knocked. As a male
opened the door, the officer felt a rush of warm,
humid air carrying the odour of both burning and
growing marihuana. As the officer questioned the male
about the home invasion he observed a female standing
inside the house. The officer described the male at the
door as “fidgety”, rocking on his heels, looking over his
shoulder, avoiding eye contact, and attempting to pull
the door closed behind him. The officer called for
backup and after a second officer arrived, the male
and female were arrested inside the residence for
growing marihuana. The officers then checked the
residence to satisfy themselves there were no other
persons present. While inside, police made several
observations including a padlocked basement door, fans
humming in the basement, and a locked rear basement

3

door. A search warrant was obtained and executed
resulting in the seizure of a commercial marihuana grow
operation from the basement and other evidence
linking the arrested occupants to the premises.
Following conviction at trial, the accused appealed
arguing the police violated their right under the
Charter to be secure against unreasonable search or
seizure and that the evidence should be excluded
because the arrest, entry, and walk through following
the arrest were unlawful.
Section 529.1 of the Criminal Code, Parliament’s
response to the Feeney decision, allows the police to
enter a residence without a warrant to arrest in
exigent circumstances if the police have the power to
arrest under s.495 and reasonable grounds to believe
the person is within the residence. Exigent
circumstances are defined in the Code as including
circumstances where the officer believes on
reasonable grounds that entry is necessary to prevent
the imminent loss or destruction of evidence relating
to an indictable offence. In this case, the officer had
both reasonable grounds to arrest and reasonable
grounds the person was present. Likewise, the standard
for assessing the existence of exigent circumstances is
reasonable grounds. In other words, the officer must
believe exigent circumstances exist and that belief
must be supported objectively. The trial judge
concluded exigent circumstances existed after
accepting the officer’s testimony that:
•

•
•

•

if he left to get a warrant the accused could
escape and he would subsequently be unable to
identify him;
the accused and anyone else inside could destroy
evidence;
because of an officer shortage that evening he
would have difficulty obtaining additional officers
to watch the house; and
he was dealing with an ‘active’ crime rather than
one that could be dealt with later.

The accused argued that a commercial marihuana grow
operation could not be dismantled and destroyed in the
hour it would have taken the officer to obtain the
warrant, unlike a quantity of cocaine which could easily
be destroyed. Although the British Columbia Court of
Appeal agreed that the operation could not be
completely destroyed, other evidence linking the
accused to the operation, such as documents and
fingerprints on equipment, could be made unavailable
had the accused been left inside the home for that

Volume 2 Issue 5
May 2002

hour. The Court refused to interfere with the trial
judge’s conclusion that exigent circumstances existed.
The Court also examined whether the entry of the
premises and the initial search were lawful as an
incident to arrest at common law. For a search to be
incident to arrest, the following threefold test must be
satisfied:
1.
2.
3.

the arrest must be lawful
the search must be for a valid investigatory
objective
the search must be conducted in a reasonable
manner

Because the arrest was lawful, the officer’s “entry of
the premises without a warrant to ensure its security
and to preserve evidence was a lawful incident of that
arrest and was not carried out in an unreasonable
manner”. The entry and search were therefore lawful
at common law as well as under statute.
In R. v. Grothiem, 2001 SKCA 116, a police officer was
investigating a complaint that a vehicle had struck a
tree. The officer responded and found a damaged
evergreen, a trail of fluid, and a long black skid mark
leading to a nearby driveway where a truck with
extensive front-end damage was parked. The officer
knocked on the door of the house to ask about the
accident when someone yelled, “come in”. The officer
entered and found three men with whom he was
familiar; one of them was injured. The accused entered
the room, was unsteady on his feet, and appeared
intoxicated. When he was about to explain what
happened the officer asked who was driving the
vehicle. The accused stated he had been driving and
accidentally ran into the tree while turning into the
driveway. The officer concluded the accused was
impaired and placed his hand on the accused’s arm and
suggested the two step outside or go to the police car
to discuss the matter. The accused brushed the
officer’s hand aside and braced himself against the
door jam. The officer grabbed the accused and pulled
him through the doorway, hastily advising him he was
under arrest. At the station, the accused subsequently
provided breath samples over the legal limit.
At trial, the judge found both the presence of the
officer in the home and the arrest lawful. On appeal,
the Saskatchewan Court of Queen’s Bench opined that
although the officer had been lawfully in the accused’s
home, the arrest was inappropriate because an in-home
arrest absent exigent circumstances is a grave matter.

4

Because the officer “should have left the premises and
attempted to obtain an arrest warrant”, the arrest was
unjustified and the results of the breath tests were
excluded and the conviction was set aside. On further
appeal, the Saskatchewan Court of Appeal found the
officer was lawfully present in the home at the time of
arrest. He was invited in and had not been told to leave.
Since the officer had reasonable grounds, the arrest
for impaired driving causing bodily harm was lawful.
The conviction was restored.
In R. v. Castro, Stinchcombe, & Ferretti, 2001 BCCA
507, police intercepted telephone calls between the
three accused suggesting they were organizing a drug
deal at a hotel. Police set up surveillance on the hotel
and observed two men who appeared to be keeping
watch outside two rooms (unit 309 and 310) registered
to the accused Stinchcombe. At 11:30 pm the accused
Castro and Ferretti, carrying a brown bag, arrived and
entered room 309. About one hour later, Castro and
Ferretti left the room without the brown bag and were
arrested. Neither drugs nor large amounts of money
were found on them. At 2:40 am another man,
identified as Mostell, left the hotel room and was
followed by police, but they subsequently lost
surveillance of his vehicle. It was not known whether
he left with any drugs or money. Although they did not
have a warrant, police decided to enter the two hotel
rooms and arrest the occupants fearing they may have
been alerted by Mostell of the police presence and
were either destroying the evidence or barricading
themselves in the rooms. In room 309 police found two
people and Stinchcombe asleep in room 310. Police
obtained a search warrant and under the mattress in
room 310 police found a kilogram of cocaine in a ducttaped package. Stinchcombe was arrested and the
other two men provided evidence implicating the three
accused.
Although the British Columbia Court of Appeal ordered
a new trial on a disclosure issue, the Court rejected
Stinchcombe’s ground of appeal that the drugs seized
in the search of the two adjoining hotel rooms should
be excluded because the initial entry to the rooms was
made without warrant. The Court found “the entry was
necessary
to
preserve
evidence
in
exigent
circumstances and that the police action did not
exceed the requirements of the situation as no search
occurred until a warrant was issued. The drugs were
found as a result of a search authorized by a warrant.
There was a real risk that Mostell, who eluded the
police, could have tipped off those in the rooms”

Volume 2 Issue 5
May 2002

In R. v. Hofung (2001) Docket:C31904 (OntCA), an
undercover police officer purchased heroin several
times from a suspect. During a culminating drug deal
ending the 4-month undercover drug investigation, police
arrested one suspect in a car outside an apartment and a
second suspect in the lobby of the same apartment
building after he had exited a unit believed to be the
source of the drugs. The officers also believed that a
quantity of drugs remained inside this unit along with
the person who supplied the drugs to the two arrested
suspects. Police forced entry into the apartment without
a warrant and arrested the accused. After several
firearms were observed in a bedroom cabinet, police
secured the apartment and obtained a search warrant to
seize the weapons. Police subsequently located two
loaded handguns under a couch in the living room. In
assuming without deciding that the warrantless police
entry and search of the apartment was a s.8 Charter
breach, the Ontario Court of Appeal admitted the
evidence because the police had “well-founded” concerns
“about weapons inside the apartment” in light of the
unfolding events that day.
In R. v. Adams (2001) Docket:C34243 (OntCA), police
attended a rooming house and purportedly obtained the
consent of the superintendent of the building to enter
a shared laundry room where the accused was
ultimately arrested. A subsequent search of the
accused resulted in the discovery of a controlled drug
that led to the charges before the Court. The accused
challenged the entry of the police into the laundry
room to make the arrest. If the entry to arrest was
unlawful, the resultant search incidental to the arrest
would be unreasonable as the arrest formed the
foundation for the search. The Ontario Court of
Appeal reasoned that the general prohibition against
warrantless entry into a dwelling to affect an arrest is
not restricted to a suspect’s dwelling and applies
equally to the dwelling of a third party. Furthermore,
because the police tricked the superintendent by
stating their purpose in entering was to investigate a
noise complaint when their real purpose was to arrest
the accused, consent was not properly informed. Thus,
the entry and search were unreasonable and the
evidence was excluded.
In R. v. Schulz 2001 BCCA 601, police attended the
accused’s residence to communicate information to him
at the request of an outside agency. After knocking, a
voice from within the premises stated “come-in” and
the officer opened the door and observed the accused
seated at the table. The accused immediately got up

5

and closed the door behind the officer. The officer
detected the odour of burning marihuana from within
the residence, advised the accused of this, and that
the residence would be searched as a result. The
officer arrested the accused for possession of a
controlled substance and the officer called for backup. The back-up officer entered the residence to
“ensure that no other persons were present in the
premises and to preserve any evidence”. A warrant was
subsequently obtained and incriminating evidence
located which formed the basis for a conviction. The
accused appealed arguing, among other grounds, the
arrest was unlawful because there were insufficient
grounds upon which to base the arrest, the incidental
search was thus unreasonable, and the evidence should
have been excluded. The Court found the officer had
sufficient grounds to arrest and that the initial search
of the residence was incidental thereto. The appeal
was dismissed.
In Townsend v. Sault Ste. Marie Police Service (2002)
Docket:C36850 (OntCA), the plaintiff appealed the
dismissal of his lawsuit in which he claimed in part, that
the police were trespassing at the time they arrested
him in his dwelling. In dismissing the plaintiff’s appeal,
the Ontario top court found the police had authorization
to enter the home under a search warrant and the
arrest was lawful.
In R. v. Haglof 2000 BCCA 604, police attended a
property damage hit and run accident where the driver
had fled the scene. After obtaining address information
on the registered owner of a plate number provided by a
witness, police attended the owner's residence 15
minutes after the accident. Police also received
information from a neighbour that she observed the
accused’s vehicle race down the lane and disappear out
of sight. The police officer noted the accused’s
residence was located at a dead end and there was
nowhere else for the vehicle to go other than the
garage. Upon knocking at the door police observed the
movement of window blinds from someone peeking out.
After 25 minutes on scene (a total of 40 minutes after
the offence) police entered the residence through a
rear sliding door. The accused was located in the
residence and arrested for hit and run under the
provincial Motor Vehicle Act. During a sweep of the
residence to ensure no one else was present, injured or
hiding, and to secure the home, police located a
marihuana operation in the basement. The Court found
the chain of events sufficiently proximate amounting to
fresh pursuit, thus the entry lawful. The evidence

obtained following police entry was untainted and could
properly support a search warrant the police
subsequently applied for and were granted.

More About Fresh Pursuit
A person cannot defeat a lawful
arrest that has been set in
motion by seeking refuge in a
private premise. In the words of
C.J. Lamer in R. v. Macooh
[1993] 2 S.C.R. 802 (S.C.C.):
[I]t would be unacceptable for
police officers who were about to make a completely lawful
arrest to be prevented from doing so merely because the
offender had taken refuge in his home or that of a third
party.

Hot or fresh pursuit has been defined as a continuous
pursuit, conducted with reasonable diligence, so that the
commission of the offence, pursuit, and capture may be
considered as forming part of a single transaction. Fresh
pursuit does not require continuous and uninterrupted
visual contact with the fleeing suspect. For example, a
suspect rounding a corner and briefly lost from sight will
not defeat this doctrine. Likewise, police may pursue a
person fleeing into a dwelling even if the police do not
observe the person enter. Similarly, a pursuit that ends
almost as soon as it begins will still amount to hot
pursuit, such as a person fleeing from a driveway into a
home.
It is not necessary that the offence be a criminal
offence for which the person is being pursued. Where
the police have the power to arrest for a provincial
offence, entry into a dwelling is also justified2.
Undoubtedly, fresh pursuit occurs when the police are
lawfully in a position to effect an arrest and the suspect
takes flight from the officer’s presence; evasion is
contemporaneous with the arrest attempt. Although the
police need not witness the initial crime, they do require
the necessary power of arrest prior to flight.
Cases will also arise where the officer arrives on the
scene of an offence and the suspect has already fled
prior to police arrival. While at the scene the police
engage in further investigation that provide information
causing police to “shadow”, or "track", the suspect to a
dwelling. In such a case the police neither observed the
offence nor the suspect's entry into the dwelling, nor
was an arrest yet attempted or set in motion. The test
2

Volume 2 Issue 5
May 2002

R. v. Macooh [1993] 2 S.C.R. 802 (S.C.C.)

6

is whether the events linking the offence to the capture
are sufficiently proximate to be considered as forming
part of a single transaction3; there must be “real
continuity between the commission of the offence and
the pursuit undertaken by police”4. There is no fixed
formula for when a fresh pursuit becomes stale and each
circumstance will need to be taken in context and turn
on the facts of the individual case. For instance, entry
following the application of a police tracking dog shortly
after the commission of an offence may amount to fresh
pursuit.

Summary
In short, the following principles can be extracted
from the above cases:
•

•

•

•

•

•

•

3
4
5

the legality or illegality of police entry is
determined at the moment of entry (eg. entry
based on exigent circumstances) and does not
change from the result (eg. evidence was not being
destroyed);
non-consentual entry into a dwelling house to
arrest is generally prohibited unless law
enforcement’s interest outweighs the individual’s
right to privacy;
compelling law enforcement interest favouring
warrantless entry includes fresh pursuit and
exigent circumstances;
exigent circumstances are to be considered from
the perspective of the officer based on reasonable
grounds (subjective/objective analysis);
entries can be justified under both statute
(Parliament’s response to Feeney) or at common law
incident to arrest. In either case the police must
face exigencies of the moment. Where the
exigencies involve preservation of evidence the
standard is reasonable grounds. Where exigencies
involve safety concerns the standard is lower, but
must amount to a reasonable suspicion5.
the belief evidence will be destroyed does not
require that all the evidence is at risk. Simply
because the evidence could not be lost in its
entirety without immediate police action does not
necessarily establish the absence of exigent
circumstances; and
an arrest following consent to enter is lawful
provided the consent was properly informed.

R. v. Hagloff 2000 BCCA 604
R. v. Macooh [1993] 2 S.C.R. 802 (S.C.C.)
See s.529.3(2) Criminal Code.

Volume 2 Issue 5
May 2002

CLASS 86 GRADUATES
The Police Academy is pleased to
announce the successful graduation of
recruit Class 86 as qualified municipal
constables on May 3, 2002.

ABBOTSFORD
Cst. Bjorn Grimsmo
Cst. Jody Thomas
DELTA
Cst. Derek Defrane
Cst. Brent Morson
Cst. Michael White
NEW WESTMINSTER
Cst. Patrick Dyck
SAANICH
Cst. Brent Kelleher
Cst. Andrew Stuart
Cst. Robert Warren
VICTORIA
Cst. Joan Elliott

VANCOUVER
Cst. Anja Bergler
Cst. Kyle Davies
Cst. Besnick Dobrecki
Cst. Gregory Fodor
Cst. Jennifer Giese
Cst. Stephen Haras
Cst. Nancy Jolin
Cst. Bryan McKeddie
Cst. Douglas Woollacott
WEST VANCOUVER
Cst. Bruno Accili
Cst. Michael Bruce
Cst. Jarrett Chow
Cst. Ian Hynes
Cst. Jodi Ramsay

Congratulations to Cst. Robert Warren
(Saanich), who was the recipient of the
British Columbia Association of Chiefs of
Police Shield of Merit for best all
around recruit performance in basic
training. Cst. Stephen Haras (Vancouver)
received the Abbotsford Police Association Oliver
Thomson Trophy for outstanding physical fitness. Cst.
Patrick Dyck (New Westminster) was the recipient of
the Vancouver Police Union Excellence in Academics
award for best academic test results in all disciplines.
Cst. Robert Warren (Saanich) received the British
Columbia Federation of Police Officers Valedictorian
award for being selected by his peers to represent his
class at the graduation ceremony. Cst. Jody Thomas
(Abbotsford) was the recipient of the Abbotsford Police
Recruit Marksmanship award for highest qualification
score during Block 3 training (48/50). Although not
formally recognized at the graduation ceremony, Cst.
Brent Morson (Delta) received the award for the
fastest Police Officer’s Physical Abilities Test.

7

TWO YEAR SENTENCE FOR
PROBATION VIOLATION NOT
UNFIT
R. v. Swanson, 2002 BCCA 243
An accused who received a sentence
of two years less a day for
breaching his probation has had his
sentence appeal dismissed by the
British Columbia Court of Appeal.
The accused was convicted of one count of breach of
probation when he attended his 85-year-old mother’s
home without the permission of his probation officer.
Police were called and found the accused hiding in the
bathroom with the lights off. This was the accused’s
thirteenth conviction for breaching a court order in
just over a year, which began when police laid a s. 810
Criminal Code information (peace bond) against the
accused forbidding him from returning to his mother’s
home. In dismissing the accused’s argument that his
sentence was “unfit”, Ryan J.A. for a unanimous Court
stated:
I do not see any point in placing [the accused] on further
probation orders which he has every intention to breach.
Every opportunity has been extended to [him], every
resource available has been tapped in an attempt to help
him. Nothing has worked in the past, nothing but a change
in attitude will help him in the future.

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

HOME-MADE ‘MORNING STAR’
A PROHIBITED WEAPON
R. v. Sampson,
[2002] O.J. No. 1339 (Ont.C.J.)
A police officer, directing traffic in an
area being evacuated due to an
anthrax scare, stopped the accused
who was driving a taxi cab and
searched his car after he would not move it on the
officer’s request. In an open briefcase on the front
seat, the officer observed what he believed was a
home-made "morning star". The officer described the
object as a small ball, with nuts and bolts welded to it,
attached to a tubular piece of metal by a chain.

Volume 2 Issue 5
May 2002

Section 91(2) of the Criminal Code prohibits the
possession of a prohibited weapon, including "the
device commonly known as a "Morning Star" and any
similar device consisting of a ball of metal or other
heavy material, studded with spikes and connected to a
handle by a length of chain, rope or other flexible
material". In this case, the accused argued that
because the object seized by police did not have
"spikes", if fell outside the definition and the defence
was therefore entitled to a directed verdict of
acquittal. The Crown argued that it was open to the
Court to find that the sides and edges of the nuts and
bolts were spikes. In holding that each nut "has
vertices which are pointed", the Court concluded that
this satisfied the requirement of "studded with spikes"
and that the object seized properly fell within the
definition of the "Morning Star" prohibited weapon.

ENTRY FOLLOWING 9-1-1 CALL
LAWFUL: LAWSUIT DISMISSED
Skinty v. Bell,
(2002) A.J. No. 454 (Alta.Q.B.)
Following a dispute with his
basement tenant, the intoxicated
plaintiff made numerous calls to the
police complaint line, but would hang
up after he was asked questions that
digressed from the point he was trying to make. Being
annoyed by the questions he was asked and his lack of
progress with police, the accused called 9-1-1, said
nothing, and left the receiver off the hook. Constables
Bell and Korek responded to the call and arrived 3minutes after a second 9-1-1 call was received from the
residence. Again nothing was said. Cst. Bell approached
the front door while Cst. Korek went toward the side
of the house. The events that transpired were
summarized by the Court of Queen's Bench justice as
follows:
When the Plaintiff opened the door he simply told Bell to
"fuck off". Bell asked him if anyone else had called 911
and the response was, once again, "fuck off'. Neither
officer had experienced this before so Bell used his left
arm and simply pushed the Plaintiff aside and walked into
the house followed by Korek. He noted another male [the
Plaintiff's 85 year old intoxicated uncle - Tvidochib] in
the kitchen area and went directly there. Korek did not
touch the Plaintiff who remained at the front door. Korek
asked him to stay where he was and again Korek was told,
"fuck off". The Plaintiff started walking about the living
room area which was immediately adjacent to the front

8

door and on approaching Korek, Korek put his hand up and
told the Plaintiff to stay where he was. They touched but
that is all. Korek then moved more toward the kitchen
and hallway and positioned himself where he had a better
view of the main floor area. At this time the Plaintiff was
walking around the living room area muttering to himself.
Korek could not understand his behaviour, noting that the
Plaintiff was becoming more and more agitated. Bell, in
the meantime, had gone into the kitchen area where he
noted liquor and beer bottles on the table and concluded
that Tvidochib was intoxicated. He was mumbling and
gave no answers to the questions posed.
Bell then searched the bedroom and bathroom areas to
see if there was any problem there and finding none,
returned to the kitchen. At that point he tried to again
speak to Tvidochib and while doing so noted that the
Plaintiff was moving toward Korek in an aggressive
fashion which I understood to mean that he had his
hands clenched as fists. Bell was not sure that Korek
noticed him coming so Bell moved quickly and by use of
his hand against the Plaintiff's chest, pushed him
backward. The Plaintiff fell on his seat and probably hit
his head on the floor. We have no evidence as to what the
floor covering was. Korek said that he noted the Plaintiff
out of the corner of his eye coming toward him but that
Bell intervened and pushed the Plaintiff. As Bell put it,
the Plaintiff was ranting and using profane language
throughout these events.
The Plaintiff got up within about ten seconds and circled
through the dining room area into the kitchen. This
meant that he did not pass by Korek. By this point, Bell
was in the kitchen, had picked up the telephone, and was
about to put it to his ear when the Plaintiff, swearing,
came at him, knocked the phone out of his hand and
bumped him chest to chest. Bell pushed him away,
possibly using his foot or his knee to do so. The Plaintiff
again came at Bell with his fists raised, at which point
Bell told the Plaintiff he was under arrest for
obstruction and tried to put him in a headlock so as to
control him. In doing so, his arm slipped and the buttons
on his coat cut the bridge of the Plaintiff's nose. The
Plaintiff has a very thick neck and it is not surprising
that this occurred. Bell advised the Plaintiff that he was
under arrest for obstruction and assault. At this point,
Korek moved in and managed to apply handcuffs to the
right wrist of the Plaintiff who resisted having them put
on the left wrist. Korek is a relatively small person and no
match for the Plaintiff. The Plaintiff continued uttering
profanities. In any event, about this point in time,
Winkworth [the plaintiff's basement tenant] who had
heard a bump on the floor above him, came up from the
basement and into the kitchen area. He noted what was
transpiring and asked the police to let the Plaintiff go,
advising that he would look after him. The police did so,
after being satisfied that Winkworth was sober and
capable of attending to the Plaintiff. ... [T]he handcuffs

Volume 2 Issue 5
May 2002

were taken off and the Plaintiff was released from
arrest.

The plaintiff brought an action against the police
claiming damages for headaches, a cut nose, a cut left
hand, a sore ankle, bruised chest, and an injured
shoulder which he asserted resulted from unlawful
police trespass, assault, and wrongful imprisonment.

Trespass by Police
In finding that the officers “had no choice but to
enter the residence to investigate a potential
emergency”, including searching the home after
receiving unsatisfactory responses from the occupants,
Murray J. stated:
When a 911 call is made and there is no response, the
police have every right to assume that the caller or
indeed someone in the home is in distress and requires
immediate assistance. Their duty to protect life is
engaged and until they could ascertain who had made the
call and why, they have the right to intrude upon the
privacy of the person residing on the premises, as long as
in doing so they act reasonably. When one considers the
totality of the circumstances their entering the
Plaintiff's premises and behaving as I have found they
did, which included attempting to keep the Plaintiff
under control while they made their investigation, was
necessary and their actions reasonable. They would have
been remiss had they acted otherwise.

Assault by Police
The Court examined the assault allegations as two
separate incidents; the pushing of the plaintiff where
he fell back into a seated position and likely hit his
head and the headlock incident in the kitchen. With
respect to the push, the Court concluded that Cst. Bell
acted on reasonable grounds that the plaintiff was
advancing on Cst. Korek and only as much force as was
necessary was used to prevent the plaintiff from
committing an offence against Cst. Korek, which would
likely have caused “immediate and possibly serious
injury”. In the kitchen, the circumstances of bumping
Cst. Bell, knocking the phone from his hand, and coming
back at the officer after the plaintiff had been pushed
away amounted to obstruction, as well as an assault,
which justified an arrest. Consequently, Cst. Bell was
justified in using as much force as was necessary for
that purpose:
One must not lose sight of the fact that this was an
emergent situation and it is very difficult to measure
with nicety the amount of force which a police officer

9

uses in such a situation. In my view, given the overall
circumstances of this case and in particular the
behaviour, condition, and size of the Plaintiff, the actions
of both Bell and Korek were reasonable. It is also
important to note that as soon as Winkworth arrived on
the scene and the police officers were satisfied he was
sober and could deal with the situation, they immediately
removed the handcuffs from the Plaintiff and released
him from arrest. Before leaving, Bell quite calmly
attempted to obtain a commitment from the Plaintiff
that he would not abuse the 911 facility, and left. The
evidence does not support the contention that the police
officers sought to harm the Plaintiff. What happened
was a result of his own misbehaviour.

Wrongful Imprisonment by Police
For the same reasons, the allegation that the plaintiff
was unlawfully confined and falsely arrested was
“untenable”.
The Court dismissed the plaintiff’s claim.

CERTIFICATE OF ANALYSIS IS
EVIDENCE OF IMPAIRMENT
R. v. Eliuk, 2002 ABCA 85
The accused was the driver of a
motor vehicle involved in an accident
in which the other driver was killed
and two passengers were seriously
injured. The accused was convicted
by a jury of one count of impaired driving causing death
and two counts of impaired driving causing bodily harm.
The accused appealed, in part, that the statements he
made to police were inadmissible because he did not
have an operating mind, the officer lacked reasonable
grounds, and the accused’s right to counsel was
breached. Furthermore, it was suggested the
certificate of analysis should be excluded.

Statements to Police
The accused had told the officer that he was the
driver at the time of the accident and that he had
consumed two beers. Although a witness testified the
accused was “shaken up”, the judge nonetheless found
the statements represented an operating mind.
Another witness had stated the accused appeared lucid
and the accused told the officer at the scene he was
fine.

Volume 2 Issue 5
May 2002

Reasonable Grounds
The accused argued that the officer lacked reasonable
grounds for making the breathalyser demand. The
Court rejected this ground of appeal finding the
officer’s grounds based partly on what he had been
told by another officer (odour of alcohol, swaying
slightly, and that there had been a serious accident)
met the required standard.

Right to Counsel
The accused was placed in a telephone room with the
door remaining open and was provided a list of Legal
Aid lawyers where he proceeded to make 40 calls over
a span of 45 minutes without successfully speaking to
counsel. The accused provided a sample of breath after
he was told it was time to blow, and continued to make
further calls between breath samples. The accused
suggested his rights were violated because the door to
the telephone room was left open and he was denied a
reasonable opportunity when he was told it was time to
blow while he was trying to call a lawyer. In rejecting
both these arguments, the Appeal Court upheld the
trial judge’s conclusion that the accused’s rights were
not violated. The accused was not aware that the door
was open and never did succeed in speaking to a lawyer.
Furthermore, the accused did not give any “indication
that he had not contacted counsel nor that he required
more time”. The certificate of analyses was admissible
and it, by itself was strong evidence of impairment. At
para. 9, the unanimous Alberta Court of Appeal stated:
[I]t is clear that a breathalyser reading can itself be
relied upon as evidence of impairment. Both experts
testified that impairment occurs in all persons at bloodalcohol levels in excess of 100 milligrams…

The accused’s appeal was dismissed.
Complete case available at www.albertacourts.ca

THREATENING CONVICTION
DOES NOT BREACH FREEDOM
OF EXPRESSION
R. v.Taylor, 2002 BCSC 455
The accused, who was involved in a
bitter property and child custody
dispute with the mother of his child,
called and left a telephone message
on the answering machine of a Real Estate Board. In

10

the message, the accused used phrases such as “Now
you can deal with this the easy way or the hard way,
but nobody will ever be safe selling my property
without my authority" and "So what you want to do is
put a note not be sold or even shown. That would be
inviting combat into their lives from the Airborne
Brotherhood Security Forces of the Church of
Freedom and Children First”. At trial, the Court found
the messages created an “eerie and ominous tone” and
were consistent with someone wanting to be taken
seriously. The accused was convicted of uttering
threats contrary to s.264.1(1)(a) of the Criminal Code
but appealed to the Supreme Court of British Columbia
arguing his Charter right to freedom of expression had
been violated because the message was an “expression
of his religious beliefs” and a statement of what he
called the “terms of engagement”.
The actus reus of threatening is the uttering of the
threat while the mens rea is that the words uttered be
taken seriously; there is no need for any further action
beyond the threat itself. The trial judge had properly
considered the elements of the offence and the
freedom of expression guaranteed in the Charter
“cannot apply so broadly as to protect the “right” to
make statements that threaten others, contrary to the
provisions of the Criminal Code”. The accused’s appeal
was dismissed.
Complete case available at www.courts.gov.bc.ca

OFFICER’S OPINION NEED NOT
BE FORMED ‘AS SOON AS
PRACTICABLE’: IMPAIRED
CONVICTION UPHELD
R. v. Colbourne, 2002 BCSC 416
A police officer pulled the
accused over after observing a
vehicle make a wide turn and stop
about
100
feet
from
an
intersection. The accused had
blood-shot, watery eyes and an odour of liquor on his
breath. Following the accused’s failure of sobriety
tests, the officer demanded the accused submit to a
roadside screening device which he also failed. As a
result, the officer formed the opinion the accused was
impaired, Chartered and warned him, and after about
12 minutes in which the accused asked questions of the
officer, the breathalyzer demand was made. Following

Volume 2 Issue 5
May 2002

arrangements to tow the accused’s car to his hotel, the
accused was transported to the police detachment
where he contacted a lawyer and subsequently provided
two breath samples of 120mg%.
The accused appealed his conviction of driving while
over 80mg% arguing, in part, that the officer’s demand
to provide breath samples was not made “as soon as
practicable”. The law requires that the Crown must
“provide some evidentiary basis to establish that the
demand was made as soon as practicable once the
officer had formulated his opinion”, but it “does not
say when the opinion must be formed”. Even though the
officer agreed at trial that he had enough indicia of
impairment to form his opinion before the sobriety
tests were performed, it is not the opinion that must
be formed as soon as practicable, but the demand that
must be made as soon as practicable after the opinion
is formed. Here, it was the officer’s ”practice to
continue investigating…by doing sobriety tests and then
making the demand”. Taylor J. for the Supreme Court
of British Columbia wrote:
Such opinion must be made on "reasonable and probable
grounds". To do so, there must be some investigation that
provides that basis. To say that an officer had too much
evidence or should have formed it at some earlier
moment would, in my view, be an inappropriate
retrospective assessment. A police officer should not, in
my view, be criticized for the thoroughness of his
investigation even though he may have had the basis to
form such an opinion at an earlier stage of the
investigation absent oblique motives for not forming the
opinion earlier.
The officer testified that before demanding a roadside
screening device, it was his practice in investigating such
offences to conduct three standardized field sobriety
tests despite having observed the manner of driving and
symptoms such as the blood-shot, watery eyes and smell
of liquor on the driver's breath.
It was after these tests that he said he formed his
opinion to make the road side screening device demand at
23:04 and then formed his opinion to demand that
samples of the appellant's breath be given at 23:10 once
that road side screening had occurred. There is no
suggestion in the evidence nor is it alleged the officer
had some reason to carry out these sobriety tests other
than as a part of his investigation.

And further:
To have required the police officer, even though at 22:55
he may have had reasonable and probable grounds, to
cease his inquiries or investigation and form his opinion at

11

that point as opposed to 23:10 when he had additional
information would emasculate investigations.
The starting point for the consideration of "as soon as
practicable" is the forming of the opinion.

In this case, the passage of time was clearly
explained and the demand was made as soon as
practicable. The appeal was dismissed and the
conviction upheld.
Complete case available at www.courts.gov.bc.ca

RIGHT TO COUNSEL ‘CLEAR,
CORRECT, & INFORMATIVE’:
APPEAL DISMISSED
R. v. Wallace, 2002 NSCA 52
Police officers, acting on a tip from
a citizen that a vehicle was being
driven erratically by a possible
impaired driver, stopped the accused
who exhibited the usual signs of
impairment. The officer read the accused the breath
demand followed by his right to counsel. The accused
acknowledged understanding and indicated he wanted
to call a lawyer. The accused was transported to the
police detachment and while entering the building told
the officer he was not going to take the breathalyzer
test. The officer guided the accused into a room with a
desk, chair, telephone, and two posted notices; one
with names and numbers of private practice lawyers
and the other with both after hour duty counsel and
business hour Legal Aid offices. The officer asked the
accused to take a seat and placed a telephone book on
the desk. The accused, who was standing in the
doorway but had not yet entered the room, told the
officer he had changed his mind about talking to a
lawyer and simply wanted to go home. The accused
again told the officer he was not going to blow in the
breathalyzer. After the officer explained the
consequences of a refusal, the accused reiterated he
was not going to comply with the demand. An
appearance notice was issued and the accused was
released into the care of a friend to take him home.
The accused was convicted at trial of both impaired
driving and refusing to provide a breath sample. He
appealed to the Nova Scotia Court of Appeal arguing,
among other grounds, that his right to counsel under
s.10(b) of the Charter had been violated because the

Volume 2 Issue 5
May 2002

police failed to properly inform him of the right to
“free” counsel and how to access such legal services.
Further, the accused testified he had taken more than
the amount of medication he was prescribed to calm his
nerves and half a can of beer. He suggested he did not
understand anything the officer told him other than
the demand for breath samples and did not know what
“duty counsel” meant. He also asserted he did not call a
lawyer because he would be charged for a long distance
telephone call and had limited means, and no money.
Finally, from his experience of being in police custody
on prior occasions, he believed the police were
obligated to contact a lawyer on his behalf.
In rejecting the appeal, Saunders J.A. for the
unanimous appeal Court found that what the officer
told the accused at the time of the stop was “clear,
correct, and informative”.
[The officer] clearly informed [the accused] of both his
right to retain and instruct counsel without delay and
advised him as to the available means of accessing
immediate legal advice without charge. All this was
properly explained to the [accused] when first detained
by the police at the scene. Further, when asked if he
understood, he indicated he did. Finally, when asked if he
wished to call a lawyer, he said that he did.

And further:
In our view, the [accused] clearly and unequivocally
waived his right to counsel when he explicitly informed
the police on more than one occasion that he had changed
his mind, would refuse to take the breathalyzer test and
simply wanted to go home.

The Court characterized the accused’s testimony that
he was worried he could not afford the call as “hardly
convincing”; he never communicated this concern to the
police. In summary, the Court stated:
The evidence fully supports the conclusion that the
[accused] was properly informed of his right to counsel,
and that he was given every opportunity to access
counsel, that he understood his rights and how to
exercise those rights on the afternoon in question, then
changed his mind and waived his rights, choosing not to
avail himself of that opportunity.

The appeal was dismissed and the accused’s conviction
upheld.

12

IDENTIFICATION NOT
PROVEN: ACCUSED ACQUITTED
OF IMPAIRED DRIVING
R. v. Jobson, 2002 BCPC 0129
The accused was charged with care
and control while impaired and over
80mg% as a result of a police
roadblock. After his apprehension
on the street and transport to the
police detachment, a police officer took the accused to
an interview room for the purpose of letting him make
a telephone call. The accused could not recall the name
of his lawyer so the officer called Legal Aid (to whom
the accused spoke). The accused then remembered his
lawyer’s name, called his office, but received no
response. The accused subsequently provided a sample
of his breath.
At trial, the accused argued that his s.10(b) Charter
right to counsel was violated because he was denied
counsel of his choice. In holding that the accused’s
right was not violated, Hogan J. stated:
There's some case law that the police should be vigilant
in assuring that the accused has his right to call counsel
of his choice and that automatically phoning Legal Aid
isn't enough to satisfy the Charter requirement.
However, in this case the accused both spoke to Legal
Aid and he did get to call counsel of his choice. It was his
lawyer's absence from his office at midnight that left
the accused without his counsel of choice. Having a
lawyer who's not available is not having a lawyer. Well
that's pretty obvious, but that's not the fault of the
police or the Charter. The accused had opportunity to
call and the police have extended him quite an effort to
try and get him to counsel of his choice. So I honestly
can't see how a lack of his lawyer's availability somehow
escalates into a Charter problem for him. Perhaps he
should consider suing his former lawyer for nonavailability at midnight. (emphasis added)

The accused further argued that Crown was unable to
prove the identification of the accused as the impaired
driver because the officers were unable to identify
him in court. The Crown argued that the driver
produced a (non-picture) driver’s licence at the scene,
was taken to the police station, issued a promise to
appear, and that the accused appeared in response to
that notice, plead not guilty, and now stands on trial.
This circumstantial evidence, the Crown suggested,
proved identity.

Volume 2 Issue 5
May 2002

In acquitting the accused, the judge noted that the
driver’s licence did not have a photograph of its holder
nor did the police ask the driver to confirm any of the
details of the licence to ensure that was in fact whom
they were dealing with. Without a picture on the
licence or any confirmation of the licence details at the
scene, the mere attendance in court in response to the
promise to appear was insufficient to establish identity
beyond a reasonable doubt.
Complete case available at www.provincialcourt.bc.ca

ACCURATE PREDICTIONS OF
INFORMANT SUPPORTS
REASONABLE GROUNDS
R. v. Kwong, 2002 BCPC 0132
A
police
officer
received
confidential information from a
source who had personally dealt with
two heroin and cocaine dealers, one a
5’6”, stocky Hispanic looking male in
his mid 20’s named “Carlos or Chris” and the other a 20
year old Chinese male named “Mike”, that they would
drive a gold coloured Mazda protégé or a blue green
Nissan Ultima in which they would sell drugs at a local
McDonald’s restaurant. The drugs were concealed in
the Mazda’s driver’s side door armrest or under the
Nissan’s console near the gearshift. The source also
provided the names of purchasers including Terry
Edwards (a known heroin addict). The source told the
officer that they would attend Terry Edward’s
residence everyday between 12:15 pm and 1:00 pm. The
officer did not have licence plate numbers for the
vehicles nor did he take any steps to corroborate the
information.
The officer, along with other police members, set up
surveillance in marked police vehicles surrounding the
area of Terry Edwards’ residence. At 12:39 pm, the
officer observed a person leave Edwards’ residence and
run up the street. After the officer made a u-turn, he
saw a late model brown gold or mustard colour Mazda
Protégé with a driver and the male he saw running as
the passenger. Although the officer did not see any
movement inside the vehicle consistent with a drug
transaction, the two appeared shocked to see the
officer as evidenced by their facial expressions and
body language. The driver was an Asian male in his early
20’s.

13

The accused was stopped by the officer, using area
break and enters as a ruse, and produced a valid
picture British Columbia driver’s licence. The accused
told the officer that he was visiting a friend named
Terry and offered to call him on the phone. Terry
Edwards subsequently attended and advised the
officer that the accused and his passenger were
visiting him. At this time the accused was arrested for
trafficking in drugs, provided his Charter right to
counsel, cautioned regarding statements, and searched
incidental to arrest. Police found the following items:
•
•
•
•
•
•

a large amount of money on the accused;
a cellular telephone in plain view in the vehicle;
a glasses case containing cocaine, another cellular
telephone, and some money in the glove box;
a “score sheet” on the floor by the driver’s seat;
a “score sheet” in the pocket of the driver’s door;
and
cocaine and heroin wrapped in plastic baggies
underneath the pocket of the driver’s door.

observed a similar vehicle described by the informant
driven by an Asian male in his 20’s attend a street near
a known drug user (Terry Edwards) as disclosed by the
source during the time frame predicted. The officer
then saw a person leave the known drug user’s house
and enter the vehicle driven by the Asian male. The
two occupants appeared shocked at the sight of the
officer and were in possession of a cellular telephone,
which is known to be used by drug dealers. After the
accused was detained, the known drug user attended
the scene after being summoned by the cellular
telephone call made by the passenger. In finding the
officer had the necessary reasonable grounds to
arrest, Bruce J. stated:
Viewing the circumstances in their entirety, it appears to
me that the sequence of events actually observed by [the
officer] conformed sufficiently to the anticipated
pattern predicted by the tip to remove any possibility of
innocent coincidence…. Further, the strength found in the
compelling nature of the tip, as well as the amount of
detail confirmed by the constable's observations prior to
arrest, overcome the weakness in the evidence
concerning the general credibility of the source and the
lack of corroborative investigation. While it would have
been preferable if the officers had conducted more
surveillance prior to making a decision to arrest, the fact
that they failed to do so does not render the arrest
unlawful…

The accused argued that the search was unlawful
because the officer lacked reasonable grounds to make
the arrest. It was suggested there was no evidence
concerning the reliability of the informant and officer
acted “precipitously”. There was no detailed
description of the Asian male, no licence plate was
provided, no drug transaction was observed, and the
only matching circumstances was the presence of a
similar vehicle with an Asian male all of which could be
“innocent coincidence”. Moreover, the accused asserted
he was in a lawfully parked and fully licensed vehicle
and apart from the tip there was no basis for the
detention and arrest.
The test for determining whether reasonable grounds
exists is whether the officer had the requisite
personal belief supported by objective evidence. When
reasonable grounds finds a basis in an informants tip,
the reliability of the information must be assessed by
examining the totality of the circumstances with
particular attention to:
•
•
•

whether the source was credible;
whether the information was compelling; and
whether the police were able to corroborate any
part of the information.

In this case there was no evidence of the credibility of
the informant or any attempt to corroborate the
information prior to the surveillance. However, many of
the officer’s observations during the surveillance were
accurately predicted by the source. The officer

Volume 2 Issue 5
May 2002

Considering the evidence as a whole, I am satisfied
beyond a reasonable doubt that [the officer] had
reasonable and probable grounds to arrest the accused
and search him and his vehicle incidental to arrest. In my
view, a reasonable person placed in the position of the
officer would have come to the same conclusion; that is,
there was a reasonable probability that the accused was
in possession of illegal drugs for the purpose of
trafficking. (references omitted)

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

Note-able Quote
“[P]olice work, can be and often is quite onerous. The hostility
that the police face frequently in carrying out their duties is
unpleasant even to the most thick-skinned among them. The
constant possibility of danger and violence erupting in their
work does little to provide a tension-free job environment.
The sheer human ugliness that they are called upon to deal
with in the course of one year on the force surpasses
significantly the amount tolerated in the whole life span of
most individuals6”. Rose Yunka, PhD.

6

(1977). Police Field Training: The Analysis of a Socialization Process. Washington
University.

14

SAFETY ALERT
A New York police officer reportedly located this
rectal plug containing the following pictured items.

a warrantless entry. Since the arrest was unlawful, the
resist charge was stayed. However, the breach of
probation and threatening charge remained since there
was neither any evidence related to those charges that
was obtained as a result of the Charter breach or any
connection between the breach and the charges.

REASONABLE BELIEF
ESTABLISHED DESPITE USE
OF UNCALIBRATED DEVICE
R. v. Linford, 2002 ABPC 47

UNLAWFUL ENTRY TO
ARREST: RESIST CHARGE
STAYED
R. v. Borden, 2002 NSPC 3
Police, acting on an arrest warrant,
attended a mobile home where the
accused was believed to be living.
The police spoke to the accused’s
common law spouse who denied that
the accused was in the trailer. After hearing footsteps
within the trailer, police entered and arrested the
accused. During the arrest, the accused resisted and
threatened the officers. In addition to the outstanding
breach of probation charge, the accused was charged
with resisting arrest and uttering threats.
The accused made an application seeking relief under
s.24 of the Charter to have the all the charges stayed
including the original breach of probation. Campbell J.
found that the police “knew or should have known” that
the accused had a “limited expectation of privacy”
while resident in the trailer which was sufficient to
require a warrant to enter to effect the arrest. There
were no exigent circumstances such as flight or the
destruction of evidence which might otherwise justify

Volume 2 Issue 5
May 2002

After stopping the accused for
speeding, an officer made a formal
demand for a breath sample into a
roadside screening device. The
accused provided a sample that resulted in a “fail”
reading. At this time, the officer formed the opinion
that the accused’s ability to operate a motor vehicle
was impaired by alcohol, arrested him, and read him his
Charter
rights.
The
accused
acknowledged
understanding and indicated he wished to contact a
lawyer. The officer then cautioned the accused and
read the breath demand. When asked if he understood,
the accused replied “100%”.
The accused was transported to the police station
where he was placed in a phone room. He placed a call
to a friend, presumably to obtain the number of a
lawyer, and then made a second call that went
unanswered. He then refused to make any more phone
calls. The officer re-explained the right to counsel and
read
a
waiver.
The
accused
acknowledged
understanding of the waiver and after being asked if
he wished to contact any lawyer he replied “no”. When
asked, “Are you sure?”, he replied “Yah”. The accused
was escorted from the phone room, and after doing
some push ups, provided samples of his breath.
The accused argued that the certificate of analysis
was inadmissible because the officer used an
uncalibrated roadside screening device to form his
reasonable grounds and his s.10(b) rights were violated
because the waiver advice he was given was deficient.

The Roadside Screening Device
The police policy required that all roadside screening
devices be calibrated every two weeks; if not they
were removed from use. Each device was affixed with a
sticker, which would have the calibration expiry date.
On this occasion, there was no sticker attached to

15

indicate the date of expiry, nor did the officer check
the calibration log. The officer assumed that the
persons responsible for calibrating the devices did so.
At the trial, it was revealed that the device used by
the officer was beyond the two-week calibration
period. However, Patterson J. found that although the
police policy required two week tests on the devices,
there was no corresponding duty on the officer to
ensure the check had taken place. The officer’s belief
that the device was calibrated was, along with the
“fail” reading, sufficient to provide reasonable and
probable grounds for the breath demand.

circumstances that are not always viewed by the public.
Because police are granted discretion in the exercise
of their extraordinary powers, there is a recognized
need for public accountability. That accountability
should not, however, amount to simply secondguessing7”. B.C.’s Deputy Police Complaint Commissioner
Barb Murphy

IN or OUT? MAKING THE
CALL ON A s.8/24(2) CHARTER
ANALYSIS
Sgt. Mike Novakowski

The s.10(b) Waiver
When an arrestee originally expresses a desire to
contact counsel and has been reasonably diligent in
exercising it but changes their mind, the police must
inform the person of:
•
•

their the right to a reasonable opportunity to
contact a lawyer, and
the police obligation in “holding off” from
questioning or other evidence gathering (including
breath samples) until the opportunity is provided.

In this case, the information read to the accused was
deficient in that it failed to provide the advice that
the police must “hold off” their investigation until he
was provided a reasonable opportunity. However, this
additional advice requirement is triggered only when
the person asserts their right to counsel and has been
reasonably diligent in exercising it. Here, the accused
made two phone calls; one to a friend and the second
went unanswered. The phone room contained lists of
duty counsel and other lawyers posted on the walls and
had he made a minimal effort to call, he would have
likely received free, immediate advice. Having failed to
establish that he was being reasonably diligent, the
“holding off” component of the warning was not
required. The accused failed to prove that his s.10(b)
right had been violated and the certificate of analysis
was admissible.
Complete case available at www.albertacourts.ab.ca

Section 24(2) of the Charter,
although sometimes referred
to as the “exclusionary rule”,
does not require exclusion in
all cases. This provision
provides a remedy for the
exclusion of evidence obtained through an infringement
of a Charter right provided the requirements of the
section are met:
s.24(2) Charter
Where...a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be excluded if
it is established that, having regard to all the circumstances,
the admission of it in the proceedings would bring the
administration of justice into disrepute.

Although all relevant, probative evidence is prima facie
admissible at trial, s.24(2) provides an aggrieved person
with a mechanism to exclude evidence resulting from a
Charter violation.
In a s.8 Charter claim for relief under s. 24(2), the
person who is seeking exclusion of evidence must satisfy
the court on the balance of probabilities that their
personal right to be secure against unreasonable search
or seizure was violated. There is no obligation on the
Crown to establish that the search and seizure did not
violate s.88. Although this onus is on the person seeking
exclusion, they need not necessarily give evidence. In
some cases a breach will be readily established on the

Note-able Quote
“Citizens who are engaged in the policing profession are
the guardians of life and property. While the public
expects that ordinary citizens will run from
circumstances of extreme danger, it is the heroic duty
of a police officer to run toward that danger and
resolve it. Police work often occurs in highly volatile

Volume 2 Issue 5
May 2002

7

Testimony at the Special Committee To Review The Police Complaint Process,
Wednesday, April 17, 2002
8

R. v. Hammil (1984) 14 C.C.C. (3d) 338 (B.C.C.A.) leave to appeal to S.C.C.
dismissed [1987] 1 S.C.R. 265 (S.C.C.), also R. v. Feldman (1994) 91 C.C.C. (3d) 256
(B.C.C.A.) per Hinkson J.A. leave to appeal to S.C.C. dismissed 93 C.C.C. (3d) 575
(S.C.C.)

16

basis of evidence led by the Crown9. To establish that
the evidence should be excluded as a result of a Charter
violation under s.8 , the applicant must prove:

the evidence13, the evidence will have been obtained
in a manner that infringed or denied a Charter right.
the admission of the evidence would bring the
administration of justice into disrepute. In
assessing whether the admission of the evidence will
bring the administration of justice into disrepute, a
24(2) Charter analysis involves three steps:

their personal s.8 right was violated. A third
party may not bring an application for exclusion by
claiming prejudice through the use of evidence
gathered as a consequence of a search or seizure
directed at another person. In proving their
personal right was violated, a person must
demonstrate the following three elements:
•

•

•

the search and/or seizure was conducted by
a government agent (the police). The Charter
controls state action, not the behaviour of
persons in the private sphere10. However,
private persons may be converted into actors of
the state when they take an active role by
performing a function at the direction of the
police.
the person had a reasonable expectation of
privacy. The accused must show that their
reasonable expectation of privacy was breached
by the state conduct11.
the
search
was
unreasonable.
Simply
demonstrating that a warrantless search or
seizure occurred satisfies this requirement.
The police will then be required to rebut this
presumption. Alternatively, the accused may
choose to challenge the law, the manner of the
search, or that police failed to comply with the
substantive or procedural requirements of the
authorizing law.

the evidence was obtained in a manner that
violated their personal Charter right. It must be
shown that the evidence in issue was obtained
through a causal or temporal connection with the
right violated. If the violation caused the obtaining
of the evidence, the evidence will have been
obtained in a manner that infringed or denied a
Charter right. Alternatively, if there is a sufficient
temporal nexus or link12 between the violation and
the evidence (the Charter breach is an integral part
of a single transaction) or if the Charter violation
was an integral component in a series of
investigative tactics which lead to the securing of

•

trial fairness. A fair trial is a basic tenet of
Canada’s legal system and any evidence causing
an unfair trial would bring the administration of
justice into disrepute and warrants exclusion.

•

the seriousness of the Charter violation.
Whether the violation was serious or technical
will depend on the nature and circumstances of
the Charter infringement. For example, when
the object of an unreasonable search is a
dwelling house, any violation of the Charter will
be rendered all the more serious14.

•

the effect of the admission/exclusion of the
evidence on the administration of justice

In assessing whether evidence will be excluded, courts
will proceed on a case-by-case basis in recognizing the
fundamental importance of balancing a person’s right to
privacy and society's interest in effective law
enforcement. In determining whether the admission of
the evidence would bring the administration of justice
into disrepute, a Court will consider the following15:
•
•
•
•

•
•
•
•
•
•

the kind of evidence obtained;
the Charter right infringed;
the seriousness of the Charter violation ;
whether the violation was deliberate, willful,
flagrant, or was it inadvertent or committed in good
faith. Good faith is not confined to objectively
reasonable good faith, but may also include the
subjective good faith of the officer16;
whether the violation occurred in circumstances of
urgency or necessity;
whether other investigative techniques were
available;
whether the evidence would have been discovered in
any event;
whether the offence is serious;
whether the evidence is essential to substantiate
the charge; and
whether other remedies are available.

9

R. v. Butler (1995) 104 C.C.C. (3d) 198 (B.C.C.A.) leave to appeal to Supreme Court
of Canada refused 105 C.C.C. (3d) vi..
10
R. v. Fitch (1994) 93 C.C.C. (3d) 185 (B.C.C.A.) at p.189.
11
R. v. Belnavis (1996) 107 C.C.C. (3d) 195 (Ont.C.A.) at p.207.
12
R. v. Evans (1994) 93 C.C.C. (3d) 130 (B.C.C.A.) per Rowles at p.166

Volume 2 Issue 5
May 2002

13

R. v. Grant (1993) 84 C.C.C. 198 (S.C.C.) at p.198.
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.570.
R. v. Collins [1987] 1 S.C.R. 265 (S.C.C.)
16
R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont.C.A.) 225 at p.248.
14
15

17

s.24(2) Charter Analysis
STEP 1 - TRIAL FAIRNESS
EVIDENCE CLASSIFICATION
The proper focus at this stage is the actions of the police involved in obtaining the evidence, not the form in which the evidence exists.

CONSCRIPTIVE

An accused, in violation of their Charter rights, is compelled
to incriminate themselves at the behest of the state by
means of:
•
a statement (eg. confession)
•
the use of the body (eg. physical line-up, fingerprints)

•

the production of bodily substances (eg. DNA)

NON-CONSCRIPTIVE
An accused is not compelled to participate in the creation
or discovery of the evidence. Evidence existed
independently of the Charter breach in a form useable by
the state:
•
eg. murder weapon found at the scene of a crime
•
eg. drugs found in a dwelling house

DERIVATIVE EVIDENCE
Admission of
conscriptive
or non
discoverable
derivative
evidence
would render
the trial
unfair which
warrants its
exclusion.

"conscriptive real evidence"
An accused is conscripted against themselves which leads to the discovery
of an item of real evidence (eg. an accused’s statement is necessary to
cause its discovery such as an interrogation leading to the discovery of a
murder weapon that would not have been obtained but for the statement)

NON
DISCOVERABLE
Evidence would
not have been
discovered
in
the absence of
the
unlawful
conscription of
the accused

DISCOVERABLE "BUT FOR" PRINCIPLE
The conscriptive evidence would have been obtained even
if the Charter had not been breached

INDEPENDENT SOURCE
•

A constitutional alternative
means of obtaining the
evidence existed & the
police would have availed
themselves of it (proof by
Crown on the balance of
probabilities)

INEVITABLE
DISCOVERY
•

The discovery
of the evidence
was inevitable
(probable)

Admission of
nonconscriptive
or
discoverable
derivative
evidence
would not
render the
trial unfair.

STEP 2 – SERIOUSNESS OF THE CHARTER VIOLATION
On the whole of the circumstances was the violation technical or serious?

Factors Considered Include:

•
•

Did the police have reasonable grounds?
Did the police act in good faith?
Did the violation interfere with the bodily integrity or dignity of the accused?
Was there a reduced expectation of privacy?
Were the police acting out of urgency?
Is there a pattern of breaches?

•
•

Would the admission of the evidence bring the administration of justice into disrepute?
The admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion.

•
•
•
•

STEP 3 – EFFECT OF EXCLUSION
Factors Considered Include:
•

•

Is the evidence essential to the prosecution?
Would the admission "shock the conscience" of the fair minded members of the community?

Volume 2 Issue 5
May 2002

18

NO SEARCH, NO SEAT
R. v. Schippanoski,
(2002) Docket:C34488 (OntCA)
The accused, a passenger in a
vehicle, appealed his conviction after
the police searched him before he
was allowed to enter a police car. At
trial, the judge found a breach of
the accused’s s. 8 Charter right, but admitted the drug
evidence because the breach was not serious since it
would have been “foolhardy” to permit a civilian to
enter a police car before searching them. The Ontario
Court of Appeal set aside the accused’s convictions and
entered acquittals. Unlike the trial judge, Ontario’s top
Court found the seriousness of the breach favoured
the exclusion of the evidence. The police unlawfully
detained the accused outside for some time in freezing
weather, did not have reasonable grounds for the
search, the search was relatively intrusive, and there
was an absence of good faith efforts to comply with
the law. Although the objective of the police policy in
searching civilians before they entered the police
cruiser was reasonable, the officer did not implement
the policy lawfully. The officer should have informed
the accused that as a condition of entering the police
car he would be searched, but had the right to refuse.
If he refused, he simply would not be allowed to enter
the car.
Complete case available at www.ontariocourts.on.ca

DETENTION UNLAWFUL:
EVIDENCE INADMISSIBLE
R. v. Snape,
[2002] O.J. No. 714 (OntSCJ)
From previous experiences, police
knew that drug and alcohol related
activity took place in a park at night.
Three officers, attending the park
at dusk to investigate such activity,
found a lone vehicle parked at the edge of the parking
lot near some trees with its lights out. As the officers
arrived, the vehicle began to reverse. Police stopped
the vehicle by cutting off its exit and ordering the
driver to stop. As a result of the stop, police found
evidence which they sought to introduce at the
accused’s trial. The accused argued that the detention
was arbitrary and a breach of s. 9 of the Charter. It

Volume 2 Issue 5
May 2002

was suggested that had the stop not been made, the
officers would not have developed their reasonable
grounds leading to the arrest and the obtaining of
evidence relied upon to support the charge.
A detention will not be arbitrary if the officer has an
articulable cause to detain and the detention is
justified in the circumstances. In this case, Ferguson
J. held that the police lacked an articulable cause that
the accused was engaged in activity that was criminal:
First, the location is not one where the police had reason
to believe all activity was criminal; for example, as in a
crack house. This was a public park where a wide variety
of legal activities occurred.
Second, the facts related to the parking of the car and
the time of day cannot support a conclusion that this was
a situation which is more likely than not associated with
illegal activity.
Finally, … the police had no reason to suspect that the
accused in particular, or the driver of the vehicle, was
involved in criminal activity. There was no significant
evidence relating to the occupant of the vehicle other
than the place and time of day.

Without articulable cause, the detention was arbitrary
and a violation of s. 9 of the Charter. The police had
the erroneous perception that they had the power to
stop anyone who happened to be at a place where the
police believed could be the site of ongoing criminal
activity. Since the evidence the Crown sought to rely
upon would not have been discovered without the
Charter breach, the judge excluded the evidence as a
remedy under s.24(2).

SNAIL MAIL EXTENDS 30DAY TIME LIMIT BY 10 DAYS:
DEEMED CONVICTION SET
ASIDE
R. v. Tollstam, 2002 BCSC 556
The accused was deemed convicted
at the expiration of 30 days after
being issued a speeding ticket. She
brought an application for an
extension of time to appeal arguing
that the 30-day time limit requires the dispute be
deposited in the mail within 30 days, not that it be
received within 30 days by the authorities. After
reviewing the applicable provisions of the Offence Act,

19

Hendersen J. found s. 15 of the Act made it clear that
the ticket is deemed to be disputed on the day on
which it is mailed. Furthermore, in setting aside the
deemed conviction, the Supreme Court Judge held that
no deemed conviction should be entered on a violation
ticket until at least 10 days after the expiry of the 30
day period to account for the delivery of the mail.
Complete case available at www.courts.gov.bc.ca

ADP & REFUSAL CHARGE:
DOUBLE JEOPARDY
R. v. Frederickson, 2002 BCPC 0134
A Provincial Court Judge stayed a
charge of refusing to provide a
breath sample after the accused
had his 90-day administrative
driving prohibition upheld. The
accused had been charged with impaired driving and
refusing to provide a breath sample under the Criminal
Code. At the time, he was served with a 90-day driving
prohibition under s.94.1 of the Motor Vehicle Act
because he failed to comply with the Criminal Code
breath demand. The accused sought a review of the
prohibition, which was upheld by the adjudicator.
The accused successfully argued that if the Criminal
Code refusal charge were now to proceed, a double
jeopardy situation would arise because the accused had
already been subject to a quasi-criminal/quasi-judicial
hearing (the s.94.1 MVA adjudication) and the facts in
support of the Crown’s prosecution on the refusal are
those that resulted in the 90-day prohibition. In
staying the Criminal Code refusal charge, Saunderson
J. stated, at para. 16:
The essence of what occurred under the Motor Vehicle
Act is that the Crown succeeded in having the defendant
punished by a competent tribunal for failing to comply
with a demand under section 254 of the Criminal Code.
The Crown cannot now be heard to ask for another
chance to punish the defendant on the same facts with, I
might add, significantly greater penalties than have
already been suffered by the defendant. To permit such
an attempt would offend a principle fundamental to the
common law.

Complete case available at www.provincialcourt.bc.ca

Volume 2 Issue 5
May 2002

ABBOTSFORD POLICE
10K CHALLENGE/5K FUN RUN
SEPTEMBER 28, 2002
The
Abbotsford
Police are once again
gearing up for the
Fraser
Valley's
premier
running
event.
The
12th
annual charity run in
support of Special Olympics will be starting at 9:00 am
on September 28, 2002 with a warm up by the Apollo
Athletic Club between 8:35 and 8:45 am.. Walkers,
runners, and strollers are welcome to attend. Last year
there were 1200 participants and $30,000 was raised
for Special Olympics, which is the largest amount ever
in the history of the event! Group incentives are
offered and awards will be given to the overall top male
and female runners for each race along with medals to
the top performers in each age category. Last years
best time for the 5K was 17:11 while the top finisher in
the 10K crossed the line in a time of 32:27.
Entry fees are $20 for an adult (without a t-shirt),
$28 for an adult (with a t-shirt) and $13 for a student
(grade 12 and under) which also includes a t-shirt. If
you register before July 31, 2002 you save $3. Late
fees will apply for entries after September 15th. There
are $10,000 in prizes to be won and food and
refreshments will be provided at the finish line. All
proceeds go to the Special Olympics!!!
All the race details and
registration information about
the run are available by
navigating the Abbotsford Police
website
at
www.abbotsfordpolice.org
and
clicking on the 2002 Abbotsford
Police 10K Challenge link or
logging on directly to the run website at
www.abbotsfordpolice.org/sports/temp-10krun.html.
We hope to see you there!!!

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

20