POLICE ACADEMY

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

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

IN MEMORIAL
On May 7, 2002, 42 year old
Walpole
Island
Police
Constable Paul Neudert died
as a result of an on duty
traffic collision. Two officers
from the Walpole Island
police force were heading to
the Petrolia OPP office to do
administrative work at the time of the incident. The
officers, Constable Neudert and Sergeant Lyle
Johnson were not on a call or involved in a police chase.
The two vehicles, a car and a SUV, collided at an
intersection north of Wallaceburg. Both vehicles then
slid into a deep ditch. The car came to rest on its roof
in 30 cm. of water.
Constable Neudert, who served six years with the
Walpole and Hamilton-Wentworth forces, died in the
crash. He is survived by his wife and two young
children. Constable Neudert is the first Walpole police
officer to die on duty and the sixth officer to die on
duty this year in Canada.
The above information was provided with the
permission of Officer Down Memorial Page: available at
www.odmp.org/canada.

INVESTIGATIVE SEARCH
REASONABLE: CONVICTIONS
UPHELD
R. v. Cooke & Jaworski,
2002 BCCA 305
A police officer, on patrol in
Winfield BC, passed a Subway
restaurant noticing its lights were
out and a van about a 100 metres
away, on the same side, pull out of an alleyway and
travel along the highway. The officer followed the van
a short distance until it turned right off the highway
onto Glenmore Rd. At about this time, the officer
heard the broadcast of an armed robbery that had

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June 2002

recently occurred at the Subway. A male suspect
dressed in a grey sweatshirt with a hood and a nylon
covering his face, entered the restaurant armed with a
small revolver. The suspect produced a small black bag
with a zipper into which the Subway employee placed
the contents of the cash register; approximately $160
in $5 bills. The suspect then fled from the Subway on
foot. The employee turned out the lights and called
911. Before proceeding to a checkpoint 4-6 km away
from the Subway, the officer who saw the van made a
mental note of it and broadcast its description as a
“dark brown beater” with a licence plate containing the
letters “BTL”.
Another officer proceeded to a checkpoint about a
ten-minute drive from the Subway on Glenmore Rd.
Within a minute or two the first vehicle, a dark blue
older van with licence plate BLL151 arrived. The
accused Jaworski was driving and the accused Cooke
was in the passenger seat. The officer queried
Jarowski on CPIC after obtaining his driver’s licence
and learned he had some connection with the offence
of robbery. After backup arrived, the accused were
asked to get out and the van was searched. In plain
view on the passenger seat, where Cooke was previously
seated, police found a black zippered bag with $5 bills.
Police confirmed the amount of money found in the bag
corresponded with what was taken from the robbery
and the accused were arrested. The police obtained a
search warrant for the van and subsequently located a
nylon and a revolver behind the wood paneling on the
van’s ceiling. A search of the area also resulted in a
grey hooded sweatshirt, tearaway pants, and a denim
jacket being found on Glenmore Rd. between the
checkpoint and the restaurant.
The accused Cooke later told police that they were in
the area of the Subway smoking a joint when a man
leaving the restaurant carrying a black pouch and
wearing black pants and a grey hooded jacket under a
denim jacket dropped the bag after Cooke called to the
man. Cooke picked up the bag and found the money. The
accused were both convicted of robbery and Cooke
with being masked while committing an indictable
offence. They appealed their convictions to the British

Columbia Court of Appeal arguing that the roadside
search by the police was unreasonable and it
consequently tainted the subsequent issuance of the
search warrant.
The police may detain persons for the purpose of police
investigation prior to arrest provided they have
“sufficient objective evidence that the [persons] were
recently involved in a crime “. This has been described
as an “articulable cause”. However, a subjective belief
alone is not enough; the officer’s belief must also be
based on objectively discernible facts providing
reasonable cause to suspect the person might have
been involved in the criminal activity under
investigation. In this case, the officer knew the
Subway had been robbed with a firearm, that a van had
been seen leaving the area, and that the accused’s van
arrived at his location in about the time it would have
taken to drive from the restaurant. Furthermore, two
of the letters in the licence plate matched the van
leaving the area of the Subway, there was almost no
other traffic in the semi rural area, the van was the
first vehicle to arrive at the checkpoint, and the driver
had some past connection with the crime of robbery.
Finch, C.J.B.C. for the unanimous British Columbia
Court of Appeal stated:
[T]his combination of objectively discernible facts fully
justified the police in detaining the occupants of the van,
and conducting a search on the spot. The timing of the
events, the description of the van and its direction of
travel on Glenmore Road were sufficient to meet the
test. The fact that the crime under investigation involved
the use of a firearm adds to the justification for the
detention and search.

The search was lawful and the evidence was admissible.
Moreover, the subsequent issuance of the search
warrant was founded on reasonable grounds and the
evidence obtained there from was also admissible. The
appeal was dismissed.
Complete case available at www.bcourts.gov.bc.ca

COURT CAUTIONS OVER USE
OF ‘SHOW-UP’
R. v. Hurley, [2002] N.J. No. 119
The accused was charged with theft
and attempt theft after he was
identified by two witnesses who saw
him enter and search two vehicles
that did not belong to him. The

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identification of the accused by the witnesses
occurred after he consented to the police bringing the
two witnesses back to the crime scene to identify (or
not identify) him while he was seated alone in the rear
of the police car. This type of identification is known
as a “confrontation” or “show-up”. In Court, the two
witnesses testified about their observations that day
which could at best be described as “uncertain”.
Although the judge described the witnesses as honest,
there were some inconsistencies in their evidence and
what they told police the day of the incident.
In describing the identification of the accused as “the
equivalent of a multiple choice test in which the answer
is underlined or set out in bold”, the Court recognized
the
weaknesses
of
eyewitness
identification.
Eyewitness testimony must be weighed and even though
a witness may be honest and credible, identification
evidence suffers from inherent human-frailty and must
be carefully assessed. Furthermore, the police role in
ensuring the integrity of the identification process
must not be undermined by using improper
identification techniques. In weighing eyewitness
identification, a Court will assess factors including:
•
•
•
•
•
•

the opportunity to observe;
the witness’ powers of observation;
the witness’ actual observations;
the witness’ actual recollection;
the witness’ ability to relate recollection; and
the sincerity of the witnesses testimony

Gorman, J. opined that the “show-up” technique used by
the police in this case “should rarely, if ever, be used”.
It negatively impacted the weight to be given to the
witnesses’ testimony and the judge was unable to
conclude that identification had been proven beyond a
reasonable doubt. The accused was acquitted.

ROADSIDE SCREENING
SUSPICION v. BREATHALYSER
OPINION
R. v. Hodgson 2002 MBQB 111
The accused was stopped by the
police for a speeding violation. As
the accused was getting his driver’s
licence, the officer noted a
moderate odour of alcohol on his
breath, a blushed face, watery eyes, and difficulty in
getting his wallet. Having formed the opinion that the

2

accused had been drinking, but not enough for a
breathalyser demand, the officer requested the
accused provide a sample of breath into a roadsidescreening device. Upon exiting his vehicle, the accused
was unsteady on his feet and was swaying. After failing
the screening test, the officer formed the opinion that
his ability to operate a motor vehicle was impaired. The
accused was arrested for impaired driving, advised of
his rights, and given the breath demand. The accused
agreed to take the test and provided samples of
100mg% and 120mg%. The accused appealed his
conviction at trial of over 80mg% arguing, among other
grounds, that the judge erred in concluding the officer
had reasonable and probable grounds under s.254 of
the Criminal Code to make the demand.
The grounds necessary for demanding a roadside
sample and a breathalyser sample are different. A
roadside sample requires a reasonable suspicion of
alcohol in a driver’s body while a breathalyser demand
requires reasonable and probable grounds that within
the preceding 3 hours the driver’s ability is impaired or
that they had or have over 80mg% of alcohol in their
blood. Beard J. of the Manitoba Court of Queen’s
Bench found that the accused’s blushed face, watery
eyes, moderate alcoholic breath odour, and difficulty in
getting his wallet established a reasonable suspicion
justifying the roadside demand. Furthermore, without
the roadside screening test, the fact the accused was
speeding and his unsteadiness and swaying on the way
to the police car would support reasonable and probable
grounds to make the breathalyser demand. The appeal
was dismissed and the conviction was upheld.

PROOF OF FIREARM INFERRED
FROM FACTS
R. v. Carlson,
(2002) Docket:C36150 (OntCA)
The accused appealed his convictions
including one count of pointing a
firearm where he argued, among
other grounds, that there was no
evidence that the gun used during an
armed bank robbery was a firearm within the meaning
of s.2 of the Criminal Code. In his appeal, the onus was
on the accused to establish “that there was no
evidence upon which a jury could reasonably conclude
the handgun brandished by the [accused]…was a
firearm”. In dismissing the appeal, Ontario’s highest

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June 2002

Court found that the brandishing, waving, and pointing
of the gun during the course of the robbery while
screaming that it was a “hold-up” and demanding money,
along with witness descriptions of a “small”, “black” gun
with a 6-8 inch muzzle and the accused’s access to guns
as reported by his accomplice and common-law spouse,
was sufficient to support a finding that the hand gun
was by definition a “firearm”. The accused’s appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

REASONABLE GROUNDS: AN
HONEST BELIEF IN SERIOUS
POSSIBILITY BASED ON
CREDIBLE EVIDENCE
Gregory v. Canada 2002 CFT 420
The plaintiff brought an action
against the government of Canada
alleging that her Charter rights
were violated when she was
unreasonably searched by Canada
Customs at an international airport and denied an
opportunity to contact counsel when she was detained
and arrested. The plaintiff, a Canadian citizen, arrived
at Pearson International airport after returning from a
3 week stay in Jamaica where she attended her aunt’s
funeral on a ticket purchased by her boyfriend a week
prior to her departure. She produced her airline ticket
and declaration form after being questioned by
Customs officers regarding her trip; she declared
bottles of alcohol. After leaving primary inspection, the
plaintiff was randomly approached by a member of
Custom’s roving Flexible Response Team (FRT). He
asked the plaintiff questions concerning her trip;
length of absence, the purchase of her ticket, and
amount of luggage. The officer noted that the
plaintiff’s Custom referral card had been coded for
excess alcohol.
After picking up her luggage, the plaintiff arrived at
the secondary inspection area where the FRT member
met her. The officer emptied her purse onto a desk
and examined a duffle bag containing liquor. The
officer noted one of the bottles had a separation in
the liquid or a foreign object inside the bottle, which
was visible through the opaque glass in the bottle neck.
This appeared familiar to the officer in his
experiences in finding liquid cocaine in rum bottles. The

3

officer opened the bottle and saw what he believed to
be liquid cocaine. The plaintiff was arrested after the
officer concluded he had reasonable grounds based on
the following factors:
•
•
•
•
•

•

the plaintiff arrived from a drug source country;
her bag had been checked in late;
her flight was a high risk drug flight;
she was traveling alone;
he believed (although erroneously) that her ticket
had been purchased the day before she left
Jamaica; and
she appeared to be carrying contraband drugs.

The plaintiff was handcuffed to prevent injury to the
plaintiff, the officer, and anyone else in the area and
to eliminate any risk of flight. The plaintiff was also
advised of her right to remain silent and of the right
to a lawyer. The plaintiff protested her innocence and
repeatedly told the officer to check her receipt that
she purchased the bottle from a duty free shop, but
was ignored. The plaintiff was escorted to an isolated,
controlled room and the handcuffs were removed. The
contents of the bottle were examined and a drug test
was negative. The plaintiff was released after receiving
an apology for the inconvenience. As a result of her
ordeal, the plaintiff was shaken, had difficulty
sleeping, and was left traumatized.

Was the Search Unreasonable?
The Federal Court Judge found that “airline
passengers impliedly consent to be interrogated and
searched when [they] go through customs”. There was
no evidence to suggest that the plaintiff was
improperly singled out for inspection because of the
presence of significant drug courier indicators. The
Court stated that, “from an objective point of view,
[the plaintiff] fit the profile of a drug smuggler, albeit
unwittingly”.

Was the Plaintiff Denied her Right to Counsel?
The plaintiff was properly told that she had the right
to remain silent and of her right to a lawyer. The judge
was satisfied that she was properly informed,
understood her rights, and declined to exercise them.

Did the Officer Have Sufficient Cause?
A peace officer may arrest a person upon reasonable
grounds of an offence being committed. Here, the
officer had reasonable grounds that the plaintiff was

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June 2002

smuggling cocaine. His “honest belief in a serious
possibility, based on credible evidence, that a criminal
offence [had] been committed” went beyond mere
suspicion and was sufficient to justify the arrest.

Was Handcuffing Justified?
To justify the use of restraints, a peace officer must
establish a reasonable basis for doing so. In testifying
that he was attempting to eliminate any possibility of
escape or injury, the officer “was reasonable in
concluding that the handcuffs were required”. Even
though the possibility of escape is difficult to gauge,
the Court refused to second-guess the officer.
Furthermore, “the interests of enforcement officers
in ensuring their personal safety and that of the
detained person and the public must be taken into
account”. However, the Court did not adopt the use of
handcuffs in all circumstances:
My decision should not be interpreted as condoning a
blanket policy of handcuffing suspected persons. The
public expects enforcement officers to set high
standards
of
truthfulness
and
honour;
while
demonstrating a devotion to duty. They also expect that
the officers will be responsible and accountable in their
use of the powers provided by law. The unvarying use of
handcuffs on all persons arrested without regard for the
seriousness of the offence, a reasonable apprehension of
violence, risk of escape, or the condition of the arrested
person is improper. (emphasis added)

The plaintiff’s action was dismissed.

TESTIMONY USING
INADMISSIBLE TRANSCRIPT
ALLOWED
R. v. Fliss, 2002 SCC 16
Police entered into an elaborate
undercover operation to befriend
the accused, who had become a
suspect in the death of a woman
found murdered. After inserting themselves into the
accused’s life, undercover police officers posing as
members of the criminal element and acting on an
authorization to intercept, surreptitiously recorded a
murder confession the accused made while he met the
officers in a hotel room. Following the recording, a
transcript was prepared and reviewed by one of the
officers the following day. After proofreading the
transcript, the officer made corrections from his own
personal recollections of what was said as well as

4

listening to the tape. This corrected copy was sent
back to be retyped. At trial, the judge found the
authorization to intercept should not have been issued
and the tape recording and transcripts violated s.8 of
the Charter and were consequently inadmissible as a
remedy under s.24(2). However, because the officer
had participated in the conversation and the
corrections were made on the basis of fresh memory at
the time, the judge ruled that the officer could refer
to the corrected transcripts (or “notes”) to refresh his
memory at trial. In his testimony, the officer
essentially read the excluded transcript word for word.
The accused appealed the admissibility of the officer’s
evidence arguing it was so inextricably entwined with
the excluded evidence that the officer’s testimony
itself should not be allowed. After the accused’s appeal
was dismissed by the British Columbia Court of Appeal
(2:1), he launched a further appeal to the Supreme
Court of Canada. Although the Supreme Court of
Canada unanimously dismissed his appeal, the judges did
so for different reasons.

The Majority Reasoning
Binnie J., writing for the majority (4:3), held that the
court “was entitled to hear from the undercover
officer about his conversation” because the officer
had a present recollection of the “gist” of all its
important elements. In deciding whether the officer’s
use of the transcript to refresh his memory was
permissible, Binnie J. wrote:
There is also no doubt that the officer was entitled to
refresh his memory by any means that would rekindle his
recollection, whether or not the stimulus itself
constituted admissible evidence. This is because it is his
recollection, not the stimulus, that becomes evidence.
The stimulus may be hearsay, it may itself be largely
inaccurate, it may be nothing more than the sight of
someone who had been present or hearing some music
that had played in the background. If the recollection
here had been stimulated by hearing a tape of his
conversation with the accused, even if the tape was made
without valid authorization, the officer's recollection -not the tape -- would be admissible.

However, in this case the officer could not
independently recall at trial all of the conversation
from present memory nor did he at the time he
proofread the transcript the day following the
recording. Since the officer only had a partial, although
substantial, recollection of the conversation, he was
not entitled to recite the entire transcript. It was not
because the transcript was inadmissible that precluded

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June 2002

its use as a memory aid, but that it failed to stimulate
the officer’s recollection. Furthermore, the officer’s
testimony failed to meet all the criteria of the “past
recollection recorded” doctrine. The doctrine,
commonly used by police to refresh their memory from
notes made during or shortly after an event, requires
the following:
1.
2.
3.

4.

the recollection must be reliably recorded;
the recollection must be sufficiently fresh and
vivid at the time to be probably accurate;
the officer must be able to assert while giving
testimony that
the
recorded
recollection
represented their knowledge at the time; and
the original record of the recollection itself must
be used, if procurable.

Here, the 3rd requirement was not met. The officer
testified that he could only recall parts of the
conversation at the time he made the corrections to
the tape. By allowing the officer to read into evidence
those parts of the transcript he did not remember
when he made the corrections violated the accused’s
rights. It was not the officer’s recollection, but the
excluded tape and transcript that provided the sole
basis for the parts he could not remember:
[A] significant portion of the detail that was recited by
the officer into the record cannot be considered to be
his recollection (either refreshed, revived or recorded)
but the corrected transcript of the ... conversation that
… was obtained in breach of s. 8 of the Charter.

Having found the accused’s s.8 rights violated by
reading in the transcript, the majority nonetheless
admitted the evidence under s.24(2) of the Charter
after assessing the following factors:
•
•
•
•
•
•
•

•

the evidence was non-conscriptive;
the accused was not detained nor compelled to
confess -- the statement was freely volunteered;
the surreptitious recording did not cause or
contribute to the statement;
the officer did not hear anything the accused did
not intend him to hear;
the police would have heard what the accused had
to say with or without a recording device;
the officer recalled all the most significant
elements of what was said;
the police acted in good faith – they obtained
prior judicial authorization even though it was
subsequently ruled invalid;
the act of volunteering the statements indicated a
low expectation of privacy; and

5

•

murder is the most serious of crimes – this
murder was brutal and senseless.

The Minority Reasoning
Arbour J., although coming to the same conclusion in
dismissing the appeal and admitting the evidence, found
it unnecessary to reconsider s. 24(2) of the Charter—
the trial judge had properly addressed the s.8 breach.
Although the recording and transcript of the
conversation were the products of an unreasonable
search and seizure and thus inadmissible, the
conversation itself was not and the officer was only
entitled to refresh his memory from the excluded
transcript if he testified that the transcript
constituted his past recollection recorded (which was
not the case for all of the parts of the transcript).
However, even though the Court erred in permitting
the officer to read verbatim into evidence the
contents of the transcript, the error was trivial
because no substantial wrong or miscarriage of justice
occurred.

A Supreme Warning—closing the back door
It would appear on its face that the police could
deliberately circumvent the authorization process by
simply recording a conversation, check the transcript,
and then rely on the transcript as notes to later be
read in at trial even though the tape itself is
inadmissible. However, both the majority and minority
cautioned against such procedure. Binnie J. cautioned
that in another case, “the s. 24(2) hurdle may not be so
readily surmounted” while Arbour J. forewarned that in
a different scenario, any evidence given in any form
about the content of the conversation may well be
excluded.
Complete case available at www.scc-csc.gc.ca

WHEN DOES FIREARM “USE”
END AND “STORAGE” BEGIN?
R. v. Carlos, 2002 SCC 35
Police conducted a search of the
accused’s residence with a warrant
obtained in connection with an
application for a firearms prohibition
under s.111 of the Criminal Code
(resulting from threatening comments allegedly made
to government officials). As a consequence of the

search, police found a loaded Ruger .357 Magnum
revolver without a trigger lock wrapped in a rag and
placed in a plastic bag behind a stereo cabinet on the
upper floor in the living room. Police also located two
other loaded revolvers, again without trigger locks,
locked in a gun safe situated on the lower floor of the
home. The accused was subsequently charged with
careless storage of the .357 Magnum and two counts of
storage in contravention of the regulations for the
other handguns.
At trial1, the accused testified that he had taken the
guns out to clean, inspect and admire and had loaded all
three guns to check them for corrosion. He took the
.357 upstairs to his office to check the documentation
against the serial number. The arrival of the police was
unexpected, caught him by surprise, and he panicked
when his wife told him the police were coming to the
door. He only had enough time to put the two guns that
were downstairs in the safe without unloading them and
the .357 he took from his office and hid it behind the
stereo cabinet. To obtain convictions on all three
counts, the Crown would need to prove the following:
•
•
•
•

In recognizing that the terms “store” and “storage” are
not defined in the legislation, the trial judge accepted
the meaning of “store” as “to reserve, put away, or set
aside for future use”. In failing to find that the
firearms were “stored”, the judge reasoned that the
accused had planned to unload all of the guns and place
them in the safe had the police not arrived
unexpectedly as they did. The placing of the gun behind
the stereo was described as a “very ill-planned hiding
spot” and all the charges were dismissed. In short, the
placing of the guns was simply interrupted “use” and did
not amount to “storage”.
The Crown’s appeal to the Yukon Court of Appeal2 was
dismissed (2:1). Proudfoot J., writing for the majority,
agreed with the trial judge that the accused would not
have placed the firearms where they were found but
for the unexpected arrival of the police. Since guns are
entitled to be handled within the limits of the law, the
accused’s actions in putting them aside when the police
1
2

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June 2002

the revolvers were firearms;
the revolvers were restricted or prohibited;
the revolvers were loaded; and
the revolvers were stored (for the .357,
“careless” storage also had to be established)

See 2000 YTTC 519
See 2001 YKCA 6

6

arrived did not amount to “storage” but was a
continuation of the handling. Even though the majority
described some of his actions as “unnecessary,
dangerous, and incredibility stupid”, the accused did
not “store” the weapons. However, the Court noted, had
the accused been charged with careless “handling”, a
conviction would have likely followed.
Ryan J., in dissent, found the guns had been stored
when they were put aside and there was no immediate
or present use being made of them. In her view, hiding
the firearms was the same as storing them since the
accused had “clearly stopped using” them when he put
them away before answering the door to the police.
Whatever “use” he was making of the guns had ended,
and storage, although temporary, had begun.
The Crown again appealed, this time to the Supreme
Court of Canada. In a unanimous judgment, the
Supreme Court set aside the acquittals and entered
convictions on all three counts. Even though there may
be “circumstances where a short interruption in the
use or handling of firearms would still constitute
handling rather than storage”, the accused “took steps
to put away and hide his weapons such that the proper
characterization of his actions was that he stored
them, albeit temporarily, rather than continue his use
and handling of the firearms in plain view of the police”.
There is no need to establish long term or permanent
storage, and the temporary hiding of the guns was
sufficient in this case. The matter was remitted back
to the trial judge for sentencing.
Complete case available at www.scc-csc.gc.ca

LOGICAL INFERENCES
FROM FACTS PROVE
POSSESSION
R. v. Zimmerscheld, 2002 BCCA 158
The accused rented a four
passenger
Cessna
airplane
in
Pemberton and flew it to Squamish
where he picked up a passenger.
After leaving Squamish, the plane
experienced mechanical problems and crashed beside a
highway and both men were transported to the
hospital. Police, along with other emergency personnel,
responded to the crash and found a large duffel bag
taking up the entire back seat. This bag was not in the
plane when it was rented and contained $125,000 in

Volume 2 Issue 6
June 2002

marihuana and rocks to weigh it down. Also found inside
the cockpit was a loaded handgun, a navigational map,
and a GPS unit with a “drop” site programmed into it.
This site, also circled on the map, was an unpopulated
rural area near Mount Baker in Washington State close
to a road. When interviewed a week after the crash,
the accused denied any knowledge of the drugs on the
airplane. At trial the accused was convicted of
possession of marihuana for the purpose of trafficking
while the passenger, who was also charged, was
acquitted. The accused appealed his conviction to BC’s
top court arguing, among other grounds, that the trial
judge erred in finding the accused in possession of the
marihuana.
Joint possession under s.4(3)(b) of the Criminal Code
states:
…where one of two or more persons, with the knowledge and
consent of the rest, has anything in his custody or possession,
it shall be deemed to be in the custody and possession of each
and all of them.

Under this section, knowledge and consent are
essential, as well as “the coexistence of some measure
of control”.

Control
At trial, the accused argued that because he was not
the owner of the plane, “a finding of exclusive control
of the contents of the plane [could] not be made”. The
trial judge found that the accused, as pilot, had control
over the plane and decided who or what cargo would fly
in the plane. The bag was not in the plane when it was
rented, was visible from the cockpit, and because of its
size and location it could not be successfully argued
that some other person left the bag on the plane
unbeknownst to the accused. The British Columbia
Court of Appeal (BCCA) found the conclusion of the
trial judge, that the accused had the requisite control,
well supported by the evidence.

Knowledge
The Crown also was required to prove that the accused
had knowledge of the contents of the duffle bag. This
can be established by drawing on inferences that the
accused knew what was in the bag or that he was
willfully blind as to its contents. In this case, the trial
judge concluded that the accused was piloting the plane
to drop the duffle bag at the location marked on the
map and entered into the GPS unit. The accused’s

7

statement denying knowledge was made nine days after
the crash, with the knowledge the police were
investigating, after he spoke to a lawyer, and was not
under oath. Even if the accused was not the person who
brought the bag onto the aircraft, the trial judge
found that he knew the plan was to drop the bag out of
the plane and by not making enquiries as to its
contents, he was willfully blind which constitutes the
necessary knowledge. Again, the BCCA found the
inferences drawn by the trial judge were logical and
the appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

ARREST IN DWELLING
JUSTIFIED: EVIDENCE IN
PLAIN VIEW
R. v. J.K., 2002 BCPC 0160
A police officer attended a home to
speak to a person about a driving
complaint. The door of the home was
open and loud music was coming
from the home. The officer twice
yelled out the name of the person he wished to speak
to through the open door. As he knocked or was about
to knock, he observed the accused, seated at a table
with another youth, with a bag of marihuana in his
hand. On the table was a rolling paper and it was
apparent to the officer that the accused was rolling a
marihuana cigarette. The officer entered and advised
the occupants of the home that they were under
investigation for possession of marihuana, the accused
was arrested and advised of his Charter rights. The
bag of marihuana weighing 7.5 grams was seized. The
accused argued that the evidence of the marihuana
should be excluded as evidence because the police
violated his rights when they seized the marihuana
contrary to s.8 of the Charter.

The Approach to the House
The officer attended the residence not for the
purpose of conducting a drug search or looking for
things to be used as evidence of a crime, but for the
legitimate purpose unrelated to the seizure of the
marihuana. The officer wanted to communicate with
the occupant about a driving complaint and was
legitimately at the door under the implied invitation to

knock doctrine3. The officer did not exceed the
implied license at the time he saw the marihuana, which
was in plain view through the open door. The officer
had reasonable grounds to believe the bag in the
accused’s hand was marihuana; there was a rolling paper
on the table, the substance was green and leafy, and
the type of bag was the type commonly used for
marihuana according to the officer.

The Arrest
Since possession of marihuana less than 30 grams is a
summary conviction offence, the officer could not rely
on the Criminal Code exigent circumstances provisions
justifying warrantless entry to effect an arrest
because the offence was not indictable4. However, the
officer was justified under s.495 in arresting the
accused because “he found the accused committing a
criminal offence and he needed to take action to
secure the marihuana and prevent the continuation of
the offence”.

The Seizure
The plain view doctrine permits a warrantless seizure
when the following criteria are met:
1.

the object is in plain view of the police who have a
right to be in the position to have the view (the
marihuana was in view from the open doorway
where the officer had a right to be through
implied invitation to knock);

2.

the discovery of the incriminating evidence is
inadvertent (the officer did not go to the door to
look for marihuana); and

3.

it must be immediately apparent the object is
evidence of a crime (the officer had reasonable
grounds to believe the object was marihuana – “any
worldy person would have recognized the accused
was in the process of rolling a joint”)

Even though there is a high degree afforded persons
within a dwelling and a general rule that prohibits
warrantless entry to effect arrests therein, Smith J.
held that the privacy interest in this case was
outweighed by societal’s interest “in ensuring adequate
police protection where [the officer] saw an offence
under the plain view doctrine”.

3
4

Volume 2 Issue 6
June 2002

See Volume 1 Issue 1 of this publication for a discussion on “Implied Licence”
See s.529.3(1) of the Criminal Code.

8

Manner of the Search
Prior to entering to make an arrest in a private
dwelling, the common law requires that the police
should minimize invasiveness by giving notice of
presence, authority, and purpose unless they are saving
someone, preventing the destruction of evidence, or if
in hot pursuit. In this case, the officer knocked or was
about to knock on an open door. He needed to act
quickly and did tell the occupants they were under
investigation. The occupants recognized him as a police
officer and the fact he told them he was investigating
marihuana possession reaffirmed this. Thus, the
requirements of the common law were satisfied.
The Court concluded that the accused’s Charter right
protected under s.8 was not breached and the evidence
of the marihuana was admissible.
Complete case available at www.provincialcourt.bc.ca

“IN SERVICE: 10-8”
CELEBRATES ONE YEAR
The “In Service: 10-8”
newsletter has celebrated
one year of publication in
serving operational police
officers
across
British
Columbia. In recognition of
this anniversary, we would like to share some of our
readers’ comments about the publication:
***************

“I wanted to take a moment to commend you for
producing such an important educational tool for
operational police officers. Your topics are very
current and…informative without being overly legalistic.
Keep up the good work!!” Police Constable, British
Columbia
**************

“Just read Vol 1 Issue 3 re Reasonable Grounds. An
excellent overview. This is a refreshing and much
needed perspective on an important issue….Hopefully,
information such as this will…boost confidence and
contribute to better decision making. Keep up the good
work!” Police Inspector, British Columbia
****************

“Have read all of the Newsletters which you have
prepared and I must congratulate on the product
produced. All have been excellent reference material
which has obviously been well researched” Police
Chief, British Columbia

“Just finished reading the first issue.
job...short, to the point and pertinent”
Sergeant, British Columbia
****************

“Excellent publication and thanks for putting it on-line
so everyone can get a copy. The case law you quote is
not only applicable to British Columbia police officers,
but also to the rest of us across the Country” Police
Sergeant, Manitoba
****************

“I have been reading some of your newsletters and

have found them quite interesting, easy to read and
relevant” Police Corporal, RCMP
****************

“I read a couple of your newsletters. Excellent reading!
I have…yet to see any publication similar to this to
keep the street officers informed of changes/updates” Police Sergeant, Ontario
****************

“I just received a copy of the In-Service: 10-8 News
Letter. Indeed a gold mine of information! We have
been trying to figure out a way to provide concise case
law updates to our front line people and this looks like a
wonderful solution” Police Corporal, New Brunswick
****************

“I have enjoyed tremendously the case law updates you
have been posting on the JIBC website. We do not have
that kind of support here…so I have been relying on
the 10-8 to get the best info” Police Constable,
Saskatchewan
****************

“I've circulated the last few issues around our office
and all of us have found it to be very informative.
Kudos to you! It is a great tool for us to keep informed
of the latest case law issues etc.” Federal Game
Officer, Environment Canada
****************

“Thank you for the Newsletter “In Service”. We all
appreciate the case law” Crown Prosecutor, British
Columbia
****************

We are pleased by the positive response and feedback
we have received thus far and look forward to serving
you in the future!!!

Note-able Quote
“Where the police have nothing but suspicion and no legal
way to obtain other evidence, it follows that they must
leave the suspect alone, not charge ahead and obtain
evidence illegally and unconstitutionally. Where they take
this latter course, the Charter violation is plainly more
serious than it would be otherwise, not less5”. SCC Justice
Sopinka
5

Volume 2 Issue 6
June 2002

Great
Police

R. v. Kokesch [1990] 3 S.C.R. 3

9

CONDITIONAL SENTENCE
UNFIT FOR ‘HORRIFIC’ CRIME
R. v. Persaud,
(2002) Docket:C37620 (OntCA)
The Crown appealed the conditional
sentence given to the accused after
he was
convicted of criminal
negligence causing death when, while
under the influence of alcohol, he
sped along a major thoroughfare at a high rate of
speed, striking the victim with sufficient force to
severe his legs and impale him on the windshield. The
accused then fled the scene leaving the victim to bleed
to death. Furthermore, after arriving home and
composing himself, the accused did not seek any
assistance for the victim. Despite the accused’s
“unblemished background” and prior “good character”,
the Ontario Court of Appeal substituted a sentence of
20 months imprisonment. The crime was “horrific” and
the accused’s behaviour was “callous, irresponsible and
cowardly” thereby elevating the degree of moral
blameworthiness and justifying a sentence that
accurately reflected the gravity and seriousness of the
crime while also recognizing the sentencing principles
of denunciation and general deterrence.
Complete case available at www.ontariocourts.on.ca

ANONYMOUS TIP
INSUFFICIENT TO PROVIDE
REASONABLE GROUNDS
R. v. Carlson,
2002 ABQB 459, 2002 ABQB 464
A drug unit Staff Sergeant received
an anonymous tip through the
communications centre that the sale of
cocaine was taking place outside a
hotel from an older blue Chrysler bearing a specific
licence number with four occupants including a named
female and a 38 year old female driver with short
brown hair. The hotel was located across the street
from police headquarters and was known as a location
where drug dealing was commonplace. The Staff
Sergeant went to a window in the drug office and could
clearly see an older blue Chrysler parked outside the
hotel with three people entering it. A female with dark

Volume 2 Issue 6
June 2002

short hair entered the driver’s side door, a second
female entered the front passenger door, and a male
entered the rear passenger door.
The Staff Sergeant advised three other officers of
the tip and asked them to check it out. The officers
exited the police building, immediately approached the
vehicle, and advised the occupants they were detained
under the Controlled Drugs and Substances Act in
order to search the vehicle. The accused, who was
seated in the driver’s seat, had short brown hair but
appeared “decades older than 38”. No one in the
vehicle had the name of the person as provided by the
anonymous tipster. The two female occupants were
observed leaning towards each other with the accused
holding $390 cash in her hand. As a result of a search,
the police found drug related evidence including
cocaine in the accused’s purse, $600 between the two
front seats, and more drugs and paraphernalia in the
trunk. The occupants were all arrested and informed of
their rights under the Charter.
Section 11(7) of the Controlled Drugs and Substances
Act would allow the police to search without a warrant
if they had a “reasonable belief that the accused was
in possession of drug contraband” and exigent
circumstances existed. In assessing whether the
requisite belief existed, the totality of the
circumstances must be considered including whether
the tip was compelling, whether the source was
credible, and whether the tip was corroborated by the
police before deciding to search.

Was the tip compelling?
Although the police had knowledge of drug trafficking
in the area, there was no evidence that the occupants
of the vehicle had related records or that any of them
were reputed to be drug users or traffickers. The tip
that the sale of cocaine was occurring from the car
was a mere conclusory statement and “no details
concerning the purported possession and trafficking
were provided”. Furthermore, the named person
provided by the tipster was not in the vehicle.

Was the source credible?
The anonymous telephone tipster was not known to the
police and therefore could not meet any standard of
reliability.

10

Was the tip corroborated?
The police, prior to searching the vehicle, obtained no
additional information, no surveillance was undertaken,
nor did the police even look through the windows of the
car before they decided to search. In short, the police
intended on searching the car before they arrived at
it.
In this case, the tip was not compelling, credible, nor
corroborated. Even though the police were faced with
exigent circumstances because the car could be driven
away at any moment, they still did not have the
necessary reasonable grounds to justify the search.
Complete case available at www.alberatcourts.ab.ca

PROTECTIVE SEARCH
UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. Clements, 2002 ABQB 443
Two police officers observed a
vehicle being driven from which a
small white object was thrown from
the passenger side, followed shortly
by a similar object thrown from the
driver’s side. The vehicle was stopped with the
intention of charging the occupant with a by-law
infraction for littering. One officer approached the
driver’s side of the vehicle while his partner
approached the passenger side. The accused driver was
agitated, nervous, and his eyes were bloodshot and
glassy. The officer suspected he may be impaired by
alcohol or some other stimulant but was not close
enough to detect a liquor odour. The officer asked the
accused if he had consumed any alcohol and whether he
had any in the vehicle. Spontaneously, the accused
exited his vehicle and said, “Go ahead and search the
car”. The accused, whose movements were rapid and
jerky, spoke quickly, and routinely shifted his weight,
giving the officer the impression he was very agitated
and nervous. As a result of his behaviour and the fact
the accused continued to focus attention to searching
the vehicle, the officer suspected that the accused
may be concealing something on his person.
The officer noted a bulge in the accused’s left spandex
pants which raised a concern he was concealing a
weapon. However, in response to being asked whether
he had any weapons, the accused responded in the

Volume 2 Issue 6
June 2002

negative. Further, when asked what was in his pocket,
the accused’s behaviour markedly changed from rapidfire speaking to silence while appearing increasingly
tense. As a result of the behaviour and noticeable
bulge, the officer was concerned with his safety and
informed the accused he would be searched. The police
found a package with six pieces of crack cocaine. The
accused was arrested.
Because the search was conducted without a warrant,
the search was prima facie unreasonable and the onus
shifted to the police/Crown to demonstrate on a
balance of probabilities that it was nonetheless
reasonable. In this case, the accused was simply
detained at a traffic stop to issue a by-law ticket and
therefore the search powers attendant to a lawful
arrest did not apply. However, the common law allows
the police to search persons who are lawfully detained
for investigations and where a reasonable apprehension
of danger exists to warrant a safety search. This
involves both a subject and objective enquiry.
Johnstone J. of Alberta’s Court of Queen’s Bench
found the objective standard had not been met. Even
though the accused displayed nervousness and
agitation, there was no evidence that the conduct,
objectively viewed, was sufficient to arouse the
officer’s concern for his safety. As a consequence, the
search was unreasonable. However, the evidence was
admitted because its admission would not bring the
administration of justice into disrepute. The officer
acted “in good faith on his subjective belief that there
was immediate necessity to protect his safety and that
of his partner”.
Complete case available at www.albertacourts.ab.ca.

TRAFFICKING COMPLETE ON
OFFER TO SELL: INTENTION
TO COMPLETE TRANSACTION
NOT REQUIRED
R. v. Bell, 2002 ABCA 107
During a conversation with the
accused about the purchase of sex
for money, the accused quoted a
price for drugs after an undercover
officer inquired about purchasing
cocaine. The officer left but later returned and
reiterated his desire to purchase the cocaine. The

11

accused informed the officer that it would cost $50
for the drugs and $20 for delivery. The officer left to
make change for a $100 bill. Upon returning, the
officer gave the accused $50 with the understanding
that she would receive $20 upon delivery of the
cocaine. The accused walked away but never returned.
The accused was convicted of trafficking and appealed
to the Alberta Court of Appeal arguing that the Crown
failed to prove beyond a reasonable doubt that she had
the necessary mens rea; an intention to actually
traffic. Since the actus reus of the offence is an offer
to sell, the mens rea only requires an intention to offer
to sell, not proof of intent to actually sell. Thus, an
offer to sell is complete once the offer is made and
does not require proof the accused intended on
completing the sale and delivery. The appeal was
dismissed and the conviction upheld.
Complete case available at www.albertacourts.ab.ca.

NO PRIVACY INTEREST IN
SEARCH OF 3rd PARTY
R. v. Parchment, 2002 BCCA 252
The accused, in company a 14-yearold female youth, packaged cocaine
and heroin at a residence where he
stored his bulk drugs. After the
packaging was complete, the accused asked the youth
to hold the drugs for him. The two left the residence
in a vehicle driven by the accused, which was
subsequently stopped by the police as a suspected
impaired driver after the vehicle failed to stop at an
intersection. After directing the youth to step from
the vehicle, the officer detected an odour of
marihuana and placed her under arrest. After asking
her if she had anything on her person the police should
be concerned about, the youth produced a baggie
containing 17.2 grams of cocaine and 3.8 grams of
heroin from the front of her pants. She told the police
they were the accused’s drugs and that she was holding
them for him. She also produced a small quantity of
cocaine from her bra which she informed police she
received in exchange for helping the accused package
the drugs. The accused was convicted of possession of
a controlled substance for the purpose of trafficking.
The accused appealed his conviction arguing that he
had a reasonable expectation of privacy in relation to
his drugs found in the front pants of the youth. In

Volume 2 Issue 6
June 2002

dismissing this suggestion, Braidwood, J.A. for the
unanimous British Columbia Court of Appeal stated:
[The accused] did not have a reasonable expectation of
privacy in these circumstances. We are dealing here with
narcotics hidden in the front of the pants worn by a 14year-old minor female. I agree with Crown counsel's
suggestion that to hold otherwise would offend not only
the law, but also common sense and basic human dignity.
Objectively speaking, the appellant had absolutely no
rational reason to expect any privacy in these
circumstances.

The accused also argued that the search of the youth
was not properly conducted as an incident to her lawful
arrest. In rejecting this argument, the Court found the
accused had no standing to challenge the search of the
youth. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

CLIMAX NOT NECESSARY TO
PROVE ACT OF
PROSTITUTION
R. v. Ni, Li, & Jin,
(2002) Docket:C33765 (OntCA)
The Ontario Court of Appeal
ordered a new trial after the Crown
appealed the acquittals of the
accused on charges of keeping a
common bawdy house and being
inmates thereof. A plainclothes police officer attended
a massage parlor where one of the accused offered to
perform or attempt to perform acts of masturbation
upon him. Police attended on several occasions over a
period of several days and the offers of masturbation
continued. The Appeal Court found the trial judge
erred in directing a verdict of acquittal because there
was sufficient evidence that a trier of fact could find
the masturbation was “part and parcel” of the body
rub, and that there was frequent and habitual use of
the premises. Masturbation for payment for the sexual
gratification of the customers can amount to acts of
prostitution. The Court also rejected the accused’s
assertion that there must be proof of actual climax
before the conduct can properly be characterized as
acts as prostitution.
Complete case available at www.ontariocourts.on.ca

12

POLICE ACADEMY OFFERS
ON-LINE COURSE IN
‘WORKPLACE STRESS,
BURNOUT & TRAUMA’
The consequences of workplace
stress are a serious problem in law
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Workers
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effects on individuals and organizations. The Police
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now offers two, eight-week online courses designed
especially for law enforcement staff needing access to
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The Road Back to Wellness: Stress, Burnout & Trauma
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automated assessment scoring and a trained online
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These courses are designed for everyone who currently
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Course
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Participants will be able to evaluate their personal
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Course Dates
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Volume 2 Issue 6
June 2002

•

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October 28, 2002 to December 20, 2002 (guided
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ACCUSED AWARDED COSTS
FOR FAILURE OF CROWN TO
DISCLOSE WITNESS
INTERVIEW NOTES
R. v. Logan,
(2002) Docket:C354976 (OntCA)
An assistant Crown Counsel took
notes during an interview of a
witness on the prosecution of a
manslaughter retrial. Without an
adequate explanation, six months
later and two weeks after the trial had begun and
nearly all the Crown evidence had been adduced,
disclosure of the interview notes was made. A trial
judge held that the non-disclosure of the notes had
prejudiced the accused’s ability to make full answer
and defence because the notes of the interview and
the earlier statement of the witness were significantly
different. The trial judge ordered a stay of
proceedings along with the costs of the application for
the stay and for the motion for costs. The Crown
appealed the trial judge’s order, arguing that the
inadvertent non-disclosure of the notes was not made
in “circumstances of a marked and unacceptable
departure from the reasonable standards expected of
the prosecution”. In dismissing the appeal, the Ontario
Court of Appeal held the notes should have been
automatically disclosed and without an adequate
explanation, the measured remedy of awarding costs
for failing to disclose the notes was reasonable.
Complete case available at www.ontariocourts.on.ca

13

IN-HOME ARREST LAWFUL:
POLICE PRESENCE JUSTIFIED
WHILE EXECUTING WARRANT
Townsend v. Sault Ste. Marie Police
Service et al,
(2002) Docket:C36850 (OntCA)
The plaintiff brought an action
against a police service and some of
its officers, which was summarily
dismissed by a court. The plaintiff
appealed the dismissal of the action to the Ontario
Court of Appeal arguing, in part, that the judge failed
to properly address his claims of false arrest and false
imprisonment. The plaintiff argued that the police did
not have reasonable grounds to make a proper arrest
and further, that the police were trespassing at the
time they made the in-home arrest. In rejecting both
of these claims, Ontario’s high court found there
existed lawful grounds for the arrest. Furthermore,
because the police were lawfully present in the dwelling
by virtue of a search warrant, they were not
trespassing at the time they made the arrest. Thus,
the arrest was lawful. The plaintiff’s appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

OPINION EVIDENCE BASED ON
INADMISSIBLE HEARSAY
IMPROPER
R. v. Maurice,
(2002) Docket:C34938 (OntCA)
The accused appealed his conviction
for possession of drugs arguing, in
part, that the Crown improperly lead
inadmissible opinion evidence from a
police intelligence officer based on
hearsay. At trial, the intelligence officer testified that
the “[accused’s] car was briefly seen at a house
occupied by persons suspected, based on informer
information, of being drug traffickers and associated
with a motorcycle gang suspected of controlling drug
trafficking in the…area”. The Ontario Court of Appeal
found this evidence nothing less than an attempt to
establish guilt by association and infer knowledge.

Volume 2 Issue 6
June 2002

Under the circumstances, this evidence was highly
prejudicial and should not have been allowed.
Furthermore, the trial judge failed to fully answer the
jury’s questions about the element of control in proving
possession offences. Because the Crown was relying on
constructive possession, they were required to prove
control as an element of the offence. Although the
Appeal Court refused to enter an acquittal, the appeal
Court ordered a new trial. There was evidence upon
which a properly instructed jury could still convict
because the drugs were in plain view in a large plastic
package on the back seat of the accused’s car.
Complete case available at www.ontariocourts.on.ca

OVEREMPHASIS ON
DETERRENCE: CUSTODY
SUBSTITUTED BY
CONDITIONAL SENTENCE
R. v. Whyte, 20002 BCCA 293
The accused, a 35-year-old first
time offender, received a sentence
of 12 months imprisonment resulting
from a conviction of possession of
marihuana for the purpose of
trafficking after police found several hundred
marihuana plants in his home. He successfully appealed
his term of custody, which was substituted by the
British Columbia Court of Appeal with a conditional
sentence of two years less a day. The underlying
principles of sentencing recognize that the
incarceration of first time offenders for non-violent
crimes should be avoided, if possible. In this case, the
trial judge failed to give enough weight to this
principle. He properly considered the importance of
deterrence but “overlooked” the deterrent effect of
conditional
sentences
containing
“very
severe
restrictions on liberty”, which should be sufficient to
deter others considering growing marihuana.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Remember not only to say the right thing in the right
place, but far more difficult still, to leave unsaid the
wrong thing at the tempting moment”. Benjamin
Franklin

14

NO STANDING TO
CHALLENGE WARRANT AFTER
DROPPING KEYS
R. v. Luong, 2002 BCPC 0135
Police, investigating a theft from
auto and a stolen van, attended a
home after witnesses told them that
a male was seen leaving the house
and enter the stolen van, which was
later recovered unoccupied by police. Upon arrival at
the house, the officers could see the lights to the main
floor were on, but it appeared vacant. On the second
floor, they could see a person seated on a couch near a
sliding window who appeared to be watching television.
Police knocked but received no response. One of the
officers attended to the rear of the residence and saw
a parked vehicle registered to the accused. The officer
knocked at the rear of the residence but also received
no reply. After returning to the front, the officer
noted that the person seated on the couch was no
longer there.
The officer returned to the rear of the house where
an elderly female at a neighbouring house pointed down
the laneway. The officer noted that the rear gate was
now unlatched and slightly open. The officer entered
the lane way and observed a lone male walking in the
lane. The officer shone his flashlight and the male
turned and went out of view. The officer jogged up the
lane, turned the corner, and found the accused running.
The male stopped running, but continued walking after
the officer again shone his flashlight. The officer
jogged up to the male and asked him to stop. The
officer believed the accused was the same person seen
in the window. The two then walked back to the
residence.
While outside of the home, the officer observed the
accused drop a set of keys from his hand. When asked,
the accused denied ownership of the keys and that
they would not open the doors to the house. A second
officer tried the keys to the home and upon unlocking
the rear door, it opened and a strong smell of
marihuana was detected. The door was then closed and
the accused was arrested for growing marihuana. Police
subsequently obtained a search warrant at the
residence which the accused sought to challenge during
a voire dire.

Volume 2 Issue 6
June 2002

To successfully challenge the search warrant, the
accused would first need to establish a reasonable
expectation of privacy in the home. Maughan J.
inferred that the accused knew the police were
investigating the house because he dropped the keys
after having both walked and ran from the premises
which signified a desire to avoid detection. In dropping
the keys, the accused “intended to relinquish any right
to them and to the locks which they opened”. Further,
“he relinquished his own access to the premises and
relinquished his control over the access of others to
the premises”.
Documents located by the police
demonstrated that the accused did not live at the
house and the circumstances of his presence tended to
establish that he had no propriety interest in the
home, but at best may have been an invitee. The only
evidence linking the accused to the home was that the
officer’s believed he was the person watching
television and who would not respond to knocking, left
out the back only to be stopped by the police, had keys
that opened a lock, and was the owner of a vehicle
parked in the back but not registered to the house.
Although the accused may be a party to the offence of
producing marihuana by watering the plants or setting
up equipment, he had little or no expectation of privacy
in the house. Having failed to establish a reasonable
expectation of privacy in the residence, the accused
had no standing to challenge the search warrant.
Complete case available at www.provincialcourt.bc.ca

OIC MUST MAKE REASONABLE
ENQUIRY BEFORE
CONTINUING DETENTION
R. v. Simmons, 2002 BCPC 0144
An experienced police officer
attended a minor motor vehicle
accident where the accused was
found in the driver’s seat of one of
the vehicles. The officer demanded
the accused provide breath samples after forming the
opinion that the accused had committed the offences
of impaired driving and driving while over 80mg%. The
accused was transported to the police station where he
provided samples of 210 mg% and 200mg%
respectively. The officer was of the opinion that the
accused could be released if he took a taxi home and if
someone was there to receive him. He described the

15

accused as a seasoned drinker who could hold his liquor.
Despite the investigating officer’s intention to release
the accused, the officer in charge (OIC), who was
aware of the readings but never saw or was in the same
room as the accused, aborted any plan for release. The
accused’s request to speak to the supervisor for an
explanation of why he was not being released was
refused. The accused was subsequently released 6
hours after the investigator concluded he should have
been.
The accused argued that his Charter rights under s.7
and s.9 were violated because he was arbitrarily
detained and that a judicial stay of proceedings would
be an appropriate remedy. Section 498 of the Criminal
Code, although not a formal bail hearing, does require
some enquiry by the OIC – however brief and informal - when deciding whether to release a person from
custody or continue their detention. In this case, at
least looking at, talking to, or giving him an opportunity
to be heard would be reasonable to ensure the most
basic level of procedural fairness. Gove J. found the
continued detention in this case was arbitrary and
ordered a judicial stay of proceedings.
Complete case available at www.provincialcourt.bc.ca

CAPABILITY & OPPORTUNITY
TO MOVE VEHICLE AMOUNTS
TO CARE & CONTROL
R. v. Laurie, 2002 ABPC 68

A police officer responding to a
complaint found the accused talking
on a cell phone behind the wheel of
his pickup parked off the roadway in
among some trees. The engine was
running, the radio was playing loudly, and the vehicle
was drivable. An empty can of beer was found outside
the driver’s door. The accused subsequently provided
breath samples of 140mg%. The accused testified that
someone he knew, but could only describe in vague
terms, drove his vehicle while he was the passenger.
During the drive he took out a beer from one of two
flats he had purchased earlier and started to drink it.
He could remember nothing more until his cell phone
awakened him. He sat up and slid across into the
driver’s seat and was only on the phone for about a
minute before being interrupted by the police. He

Volume 2 Issue 6
June 2002

further testified he had not driven the vehicle nor had
any intention to do so.
In finding the accused guilty, the trial judge held that
the accused was in care and control regardless of his
intentions. The vehicle was running, capable of being
driven, and the accused was awake in the driver’s seat.
Care and control can include circumstances where an
accused could perform acts involving the vehicle, its
fittings, or equipment, which may unintentionally set it
in motion. Horrocks J. stated, “a person familiar with
the vehicle may well perform the minor actions
required to set the car in motion reflexively or
accidentally”. In this case, the evidence of him being
behind the wheel and throwing the beer can out the
window clearly indicated he had taken control. The
accused was “awake and had both the capability and
opportunity to move the vehicle”. Regardless of the
presumption found in s.258 of the Criminal Code, de
facto (actual) care and control had been proven.
Complete case available at www.albertacourts.ab.ca

AUTHORIZED POLICE REVIEW
OF 3RD PARTY RECORD DOES
NOT REDUCE PRIVACY
EXPECTATION
R. v W.G.G.,
(2002) Docket:C35398 (OntCA)
The accused appealed his conviction
on two counts of indecent assault
against his two step-daughters
arguing, among other grounds, that
the trial judge erred when he
dismissed the accused’s application to review the
records of one of the complainants held by a third
party, the Children’s Aid Society. In part, the accused
argued that the complainant’s expectation of privacy in
the record’s had been reduced because she signed an
authorization allowing the police to review them. The
Ontario Court of Appeal held “the fact that the police
reviewed the records with the complainant’s
authorization had no bearing on her expectation of
privacy as it related to the [accused]”. Both the
accused’s conviction and sentence appeal were
dismissed.
Complete case available at www.ontariocourts.on.ca

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OBLITERATED DATE & TIME
ON FAX WARRANT
UNREASONABLE
R. v. Steeves, 2002 BCSC 551
The accused, who was charged with
possession of marihuana for the
purpose of trafficking after police
executed a search warrant on his
residence, sought to have the
evidence excluded on the basis the warrant was
defective and invalid. After obtaining the necessary
reasonable grounds justifying a search, the police
prepared an information to obtain a search warrant by
telecommunication pursuant to s. 487.1 of the Criminal
Code, consisting of a printed form and an appendix
setting out the grounds, because there was no Justice
of the Peace personally available. The documents were
faxed to the judicial centre in Vancouver and a warrant
to search was subsequently provided by fax. Police
attended the accused’s residence and as a result of the
search located 30-40 marihuana plants and a quantity
of marihuana drying on a patio screen door. A copy of
the search warrant was left on the kitchen table of the
residence.
The accused argued, among other grounds, that the
month, date, and time, located near the Justice of the
Peace’s signature on the fax copy of the warrant was
obliterated by a black marking and was not readable.
The warrant forwarded by the Justice of the Peace to
the court registry had the same black marking, but the
month, date, and time were not obliterated. The
officer testified that he noted the blacked out space
on the warrant at the time but was more concerned
about the time of and place he was permitted to
search.
Section 487.1(8) of the Criminal Code requires that the
police cause a “true copy” of the warrant be left at the
premises searched. Since the month, date, and time
were not readable and therefore not contained in the
copy left at the accused’s residence, the warrant was
not a facsimile (or exact copy) and the mandatory
requirements of the Code were not met. As such,
British Columbia Supreme Court Justice Chamberlist
found a breach of the accused’s s.8 Charter right to be
secure against unreasonable search or seizure.
However, in addressing the s.24(2) analysis the Court
admitted the evidence of the marihuana. The violation

Volume 2 Issue 6
June 2002

was not serious, the officer did not act in bad faith,
and the administration of justice would not be brought
into disrepute.
Complete case available at www.courts.gov.bc.ca

THREATS MUST BE MADE
WITH INTENT TO BE TAKEN
SERIOUSLY
R. v. Hiscox, 2002 BCCA 312
The accused was arrested and taken
to a hospital by the police under
s.28 of the Mental Health Act for a
psychiatric assessment after he had
called a crisis hotline suggesting he had a gun and was
going to shoot himself. During the assessment, the
accused was asked by the attending physician to
express his thoughts. The accused said he was very
angry with his former girlfriend for breaking up with
him and at her friends for encouraging the breakup.
He said he recently bought a gun and he was intending
on getting revenge on his former girlfriend and her
friends. Furthermore, he stated he was considering
slashing his former girlfriend’s throat or forcing her
off the road. The physician took the remarks very
seriously and felt “somewhat afraid”. Since the
physician could find no basis for detaining the accused
under the Mental Health Act, he called the police with
his concerns. The accused was charged with uttering
threats under s.264.1(1)(a) of the Criminal Code and
was convicted at trial. The accused appealed to the
British Columbia Court of Appeal arguing that the trial
judge misdirected himself to the mens rea element of
the offence.
The actus reus of s.264.1 is the uttering of threats of
death or serious bodily harm while the mens rea
component is that they were meant to intimidate or to
be taken seriously; it is not necessary to prove the
intent to carry out the threat. The trial judge found
the words spoken amounted to a threat and that the
accused intended on carrying it out. In this case, the
appeal Court agreed that the accused uttered words
that constituted words of threats. However, it was
unclear from the evidence of the physician whether
the words were spoken with the intent to be taken
seriously or simply as an expression of thoughts
without any intent that they be taken as a threat.
Since the judge misapplied the law in framing the
question as whether the accused intended on carrying

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out the threat instead of whether the words spoken
were intended to be taken seriously or to intimidate,
the conviction was set aside and a new trial was
ordered.
Complete case available at www.courts.gov.bc.ca

NO NEED TO CHARTER
DRIVER DURING TRAFFIC
INVESTIGATION
R. v. Stellitano, 2002 SKQB 199
Police observed the accused lose
control of his vehicle as he
fishtailed around a curve. After
regaining control and proceeding
through the intersection where the
officers were stopped, he was pulled over by the police.
The accused told the officer that he had just had a
fight with his girlfriend and was angry. Unsatisfied
with the explanation, the officer advised him he was
being taken to the police car while they investigated
him for speeding and possible dangerous driving. The
accused was placed in the rear of the police car and
was questioned about the consumption of alcohol
before any Charter rights were provided. The accused
acknowledged he had been previously drinking which
caused the officer to form a reasonable suspicion the
accused had alcohol in his body and he demanded a
roadside screening test. The accused failed and a
demand for breath samples was made. It was at this
time the accused was informed of his right to counsel.
The accused was convicted of driving over 80mg%.
The accused appealed his conviction to the
Saskatchewan Court of Queen’s Bench arguing that he
was entitled to be informed of his right to counsel at
the moment the officer advised him he was being
investigated for a possible dangerous driving charge
and failure to do so was a breach of his s.10(b) Charter
right to be informed without delay. Since the question
which formed the basis for the officer’s suspicion that
the accused had alcohol in his body preceded any
warning, its admission into the trial would be unfair.
The Crown contended that the detention was lawful
under Saskatchewan’s Highway Traffic Act (s.40(8))
and no warning or right to counsel is required before
questioning about alcohol consumption. Crown suggested
that no obligation arises to advise of the right to
counsel when demanding a roadside screening test at

Volume 2 Issue 6
June 2002

the reasonable suspicion stage. The right to counsel
only arises when a decision is made to demand
breathalyzer samples.
Krueger J. found the questioning of the driver about
alcohol consumption, for the purpose of achieving
safety on the highways, without informing him of his
right to counsel was a reasonable limit under s.1 of the
Charter. At para 11, the Court stated:
The officer had not embarked upon a new or different
investigation that required him to inform the appellant of
his Charter right to counsel. If the questions asked had
led the officer to believe on reasonable grounds that a
dangerous driving offence had been committed, he would
have been obliged to then comply with ss. 10(a) and (b) of
the Charter. That did not occur. Instead the officer
obtained reasonable grounds to believe that a drinking
and driving offence had been committed. Once he had
reasonable grounds for that belief, he was entitled to
make a demand for samples of breath to be analysed on
an approved machine and was obliged to advise the
appellant of his Charter right to counsel. I see no
distinction between a dangerous driving investigation and
an impaired driving investigation. Nor does an
investigation of one offence prevent gathering evidence
on the other. Rights to counsel arise when a decision is
made to pursue a charge.

The appeal was dismissed and the conviction upheld.
Complete case available at www.lawsociety.sk.ca

MISTAKE OF LAW NO DEFENCE
TO POLICE ENTRY
Hudson v. Brantford Police Services Board,
(2001) Docket:C34963 (OntCA)
Two police officers attended the
apartment of the plaintiff and his
mother to arrest him for a hit and
run involving a parked vehicle that
occurred a short time earlier. The
plaintiff’s mother answered the door in response to the
officer’s knocking and the officers entered, without
consent, and went to the plaintiff’s bedroom where he
was awaken. There was no arrest warrant or
authorization to enter, no hot pursuit, or no exigent
circumstances under s.529.3 of the Criminal Code
permitting warrantless entry. A scuffle ensued and the
plaintiff was subsequently handcuffed and removed
from the bedroom. While being escorted from the
apartment, the plaintiff spat at one of the arresting

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officers and, at the police station, spat at a Staff
Sergeant. He was charged with hit and run, resisting
arrest x 2, and assaulting a police officer in the
execution of their duty (spitting) x 2. He subsequently
plead guilty to the two assault charges and the other
charges were withdrawn. The plaintiff brought an
action against the Police Services Board suing for
unlawful arrest and detention.

Application of s.25(1) Criminal Code

At trial, the Court found the entry into the apartment
to be unlawful. Although the officers had sufficient
reasonable grounds to make the arrest, they did not
comply with the requirements of s.495(2) of the
Criminal Code. Further, even though the officers were
in the lawful execution of their duty at the time they
were spit upon while transporting the plaintiff to the
police station, his guilty plea did not bar the civil action
for the unlawful warrantless entry and arrest, which
was a separate event. However, the trial judge found
the common law and s.25 of the Criminal Code
protected the officers, who she described as acting in
good faith, and dismissed the claim.

Rosenberg J.A., for the unanimous Ontario Court of
Appeal, summarized the application of this section as
follows:

The plaintiff appealed to a Divisional Court which
allowed the appeal and remitted the matter back to the
trial judge to determine damages. The Divisional Court
judge found that the trial judge had erred in her
finding of good faith because at least one of the
officers had training on the warrantless entry
amendments to the Code before the arrest. It did not
matter whether the officers had sufficient reasonable
grounds to justify the arrest; it was the unauthorized
entry that made the arrest unlawful.
The Police Services Board then appealed to the Ontario
Court of Appeal arguing that the Divisional Court judge
erred in setting aside the trial judge’s finding that the
officers acted reasonably and in good faith. The Board
argued that the police were justified under s.25 of the
Criminal Code, or alternatively, under the common law
for their actions. In R. v. Feeney (1997) 115 C.C.C. (3d)
129, the Supreme Court of Canada held that prior
authorization to enter is generally required to make an
arrest in a dwelling house absent exceptional
circumstances such as hot pursuit. In response,
parliament enacted provisions in the Criminal Code that
allow the police to obtain an entry warrant or
authorization to enter. Since the police did not have
consent,
authorization
to
enter,
or
exigent
circumstances, they committed a trespass when they
entered the apartment which rendered the arrest
unlawful.

Volume 2 Issue 6
June 2002

Section 25(1) of the Criminal Code states:
Every one who is required or authorized by law to do anything
in the administration or enforcement of the law…(b) as a
peace officer…is, if he acts on reasonable grounds, justified in
doing what he is required or authorized to do and in using as
much force as is necessary for that purpose.

[Section 25(1)] provides that a peace officer who is
authorized by law to do something in the enforcement of
the law is justified in doing what he or she is authorized
to do if the officer “acts on reasonable grounds”. In
effect, s.25(1) protects the officer from civil liability
for reasonable mistakes of fact and justifies the use of
force. It does not protect against reasonable mistakes of
law, such as mistake as to the authority to commit a
trespass to effect an arrest. (emphasis added)

If the officers had reasonably believed they had
consent to enter the apartment even if in fact they did
not, s.25(1) would have provided a defence. However,
they did not have permission and no lawful right to
enter to make the arrest. Even though they had ample
reasonable grounds to justify the arrest and were
acting in good faith, they did not have authorization to
commit a trespass. Section 25(1) is not so broad as to
protect a police officer who generally acts reasonably
and in good faith. A defence found in this section “must
be related to the specific conduct involved and the
legality of the action the officer claims is “authorized
by law” within the meaning of s.25(1)”.

Application of s.25(2) Criminal Code
Section 25(2) of the Criminal Code states:
Where a person is required or authorized by law to execute a
process or carry out a sentence, that person or any person
who assists him is, if that person acts in good faith, justified
in executing the process or in carrying out the sentence
notwithstanding that the process or sentence is defective or
that it was issued or imposed without jurisdiction or in excess
of jurisdiction.

This section absolves a police officer from civil liability
if they act in good faith and reasonably believe that
their actions are justified by law in executing a process
which is later found to be defective. In this case, the
law concerning the warrantless arrest of persons had
been outlined by the Supreme Court of Canada and new

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Criminal Code provisions had been enacted. If the
officers were mistakenly acting on the basis of preFeeney law, s.25(2) offered no defence. It would not
have been a defect in the law, but a mistake of law,
that formed the basis for the officer’s actions.

Application of the Common Law
The Board further argued that the police were
authorized under common law to enter the apartment
because they satisfied the Waterfield test (common
law ancillary power doctrine) by acting in the course of
their duty when they entered the apartment and their
conduct did not involve an unjustifiable use of police
powers in the circumstances. The Court ruled that the
police were not entitled to claim any common law power
based upon Waterfield by ignoring the dictates of the
Supreme Court of Canada, which had defined the rules
of entry, simply because the police ”are generally
acting in the course of their duties to keep the peace
and apprehend perpetrators”.
The actions of the police were not protected under
s.25 of the Code nor at common law and the appeal by
the Police Services Board was dismissed.
Complete case available at www.ontariocourts.on.ca

OFFICER’s DUTY TO INFORM,
NOT PROVIDE ADVICE
R. v. Jutras,
(2001) 160 C.C.C. (3d) 113 (SaskCA)
A police officer stopped the
accused after he had driven into a
ditch and back onto the road. After
forming an opinion, the officer
demanded the accused provide
samples of his breath. This was followed by the officer
informing the accused of his right to retain and
instruct counsel and that he could call a lawyer from
the police station. The accused, who was calm and
cooperative, acknowledged understanding and quietly
accompanied the officer. At the station, the accused
declined the offer of the use of a telephone and was
asked to take a seat while awaiting the arrival of the
BTA operator. The accused became increasingly upset
and uncooperative and was acting strangely. As the
first test was about to be administered, the accused
asked the BTA operator, “What can a lawyer do for
me? What can a family member do for me?”. The

Volume 2 Issue 6
June 2002

operator referred him to the investigating officer who
subsequently permitted the accused to contact his
father. After speaking to his father to seek his advice
about whether he should call a lawyer, the accused
submitted to the breath tests as his father suggested
and blew 150mg% and 140mg%.
At trial, the Court found the police had violated the
accused’s right to counsel because he suffered from
Attention Deficit Hyper Activity Disorder and the
officer “failed to inform the accused at a time when he
was capable of understanding and appreciating his right
to counsel and what he should do as a result of that
right”. Nevertheless, the trial judge admitted the
results of the tests under s.24(2) of the Charter and
convicted the accused. The accused appealed to the
Saskatchewan Court of Queen’s Bench where Dovell J.
agreed that the accused’s rights had been violated, but
ordered a new trial because the trial judge failed to
properly apply the provisions of s.24(2) in admitting
the evidence. On further appeal by Crown, the
Saskatchewan Court of Appeal stated, at para. 20:
[The officer] properly informed [the accused] of his
right to counsel immediately upon demanding samples of
his breath and then effectively afforded him an
opportunity to exercise that right once at the police
station. He did this at a time when [the accused] was
capable of understanding – and indeed understood – that
it was open to him to take the advice of a lawyer before
complying with the demand. As a result, [the accused]
was aware of his predicament, appreciated his
constitutional right to consult counsel, and knew the
means were at hand by which he could exercise that
right. Indeed, he expressly declined the opportunity to
call a lawyer, this at a time when there was no suggestion
whatever that he did not fully appreciate the situation.

Moreover, the officer’s duty was to inform the accused
of his rights, not to provide advice of what he should
or should not do. When the accused became agitated
and confused, his confusion was confined to what he
should do (call a lawyer or not) and not what he could
do (call a lawyer if he wanted). Having found no breach
of the accused’s s.10 Charter rights, the unanimous
Appeal Court restored the conviction.
Complete case available at www.lawsociety.sk.ca

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

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