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.

ROADSIDE PHOTO OF TRAFFIC
VIOLATOR REASONABLE
R. v. Multani, 2002 BCSC 68
A police officer pulled over a van for
failing to stop at a yellow light contrary
to the Motor Vehicle Act (MVA).
Following a request by the officer, the
accused provided the vehicle’s insurance but was unable
to produce his driver’s licence. After obtaining the
driver’s name, address and date of birth, the officer
returned to his patrol car to get his Polaroid camera.
The officer approached the accused, told the accused to
look at him, and took a picture. The officer printed the
driver’s name and the violation ticket number on the
bottom of the photo. The officer testified that people
who have failed to produce driver’s licences in the past
have given false names and to properly identify drivers
he carries a Polaroid camera to take a photo of the
driver to keep with his notes. After the photograph was
taken the officer learned the accused was a prohibited
driver under the MVA. The photograph was not
published or circulated. The accused was convicted at
trial of prohibited driving and appealed to the Supreme
Court of British Columbia arguing, among other grounds,
that the trial judge erred in concluding the taking of the
photograph did not violate the accused’s right to be free
from unreasonable search or seizure.
After reviewing numerous cases concerning the taking of
photographs, the appeal Court found that the accused
was not charged with an indictable offence and
therefore the Identification of Criminals Act (ICA) did
not justify the taking of the photograph. However, in
recognizing that not every person investigated will be
charged and that “proper identification evidence assists
in identifying the innocent as well as the guilty”, there
was “no reason to infer from the [ICA], that parliament
meant to abolish photographing of suspects as an
investigative tool in summary conviction cases”. In
finding the taking of the photograph reasonable, Curtis
J. held, at para. 23:

Volume 2 Issue 2
February 2002

When [the officer] observed [the accused] at the scene it
was his duty to identify him properly, and in the course of
doing so to make and record accurate evidence of identity.
In the course of doing so, he could make notes of his
observations, and he could have made a sketch in his notes
had he chosen to do so. Generally, a photograph will provide
evidence that is more reliable than notes or sketches.
Because traffic enforcement officers had frequently
experienced drivers unable to produce driver's licences,
giving false names, [the officer] and others had adopted a
practice of taking Polaroid pictures which they did not
publish, but kept solely for the purpose of their own notes.
As this case does not come within the ambit of the
Identification of Criminals Act, I find it to be
distinguishable from the cases to which that Act applies.
In those circumstances, I find the reasoning of the B.C.
Court of Appeal in the R. v. Dilling case is applicable. There
has been no unreasonable search and seizure, and the
photograph is properly admissible.

The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca.

STREET CHECK & PHOTO NOT A
DETENTION
R. v. Acosta-Medina, 2002 BCCA 33
The accused appealed his conviction
for trafficking in cocaine by arguing
his s.10(b) right to counsel was
violated. Police were engaged in an
undercover operation designed to clean up a notorious
drug trafficking area. Police made a buy from the
accused who was subsequently checked by other
officers on the pretext of an immigration inquiry. The
officer who made the purchase drove by, confirmed
the accused as the seller, and a Polaroid photograph
was taken. No Charter warnings were given to the
accused and he was then let go until the end of the
operation. The accused argued police detained him
when they did the drive by confirmation and took his
photograph and this identification evidence, which
supported the conviction, should be excluded under
s.24(2) of the Charter because the police failed to
properly advise him of his right to counsel.

The British Columbia Court of Appeal found the
accused had not been detained. The burden of proving
detention on a balance of probabilities rests with the
accused and he failed to satisfy the test of physical or
psychological restraint. “[A]n encounter with the police
does not become a detention just because it provided
an opportunity for the police to identify a subject”;
simply because “a suspect is identified and
photographed does not mean that he was restrained”.
In recognizing that “"detention" in s. 10(b) must be
understood in light of the purpose of the provision,
namely to guarantee the opportunity to obtain the
assistance of counsel in situations where it is
reasonably required”, the Court found “the police
objective [in this case] could not have compromised the
appellant's s. 10(b) right to counsel”; “the police
secured the identification evidence without requiring
any self-incriminatory participation by the [accused]”.
At para. 13 Donald J.A. for the unanimous Court
stated:
The [accused] was with the identification team for only
about three to four minutes. He was already on the
street open to view by anyone who wished to see him. In
my opinion, this is not a situation where it makes any
practical sense to speak in terms of the assistance of
counsel.

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

ASSAULT CBH: INJURY MUST
RESULT FROM UNLAWFUL
ASSAULT
R. v. Lafleur, 2001 BCCA 475
The accused’s stepdaughter (the
victim of the alleged assault) had
attempted to walk the accused to
the front door of his own residence
in an effort to make him leave. The
accused had been drinking and was bothering the victim’s
mother, who was also present in the house. The
stepdaughter placed her hand on the accused’s back, but
did not use much force. The accused did not cooperate
and attempted to push his stepdaughter’s hand away. At
the door, the accused grabbed her shirt, swore at her,
and threw her down the steps. The victim broke a bone
in her finger during this incident. At trial, the accused
was convicted of assault causing bodily harm. The trial
judge found the accused used reasonable force when he

Volume 2 Issue 2
February 2002

pushed the victim’s hand as she tried to evict him from
his own home. However, pushing the victim down the
stairs was unreasonable force, and thus an assault. On
appeal, the British Columbia Court of Appeal found the
evidence failed to establish whether the bone was
broken at the time the accused was defending himself
(pushing the victim’s hand away), or at the time he
assaulted the victim by throwing her down the stairs.
As a result, the Court set aside the conviction for
assault causing bodily harm and substituted a conviction
of “simple assault”.
Complete case available at www.courts.gov.bc.ca.

PROSTITUTION DOES NOT
REQUIRE PHYSICAL CONTACT
R. v. St. Onge et al.,
(2001) 155 CCC (3d) 517 (QueCA)
The accused were convicted of
keeping a common bawdy house.
They operated a business where
customers would pay $40 for a 20minute erotic dance in a private room where a dancer
would masturbate herself (for an additional fee) and
where the customer could masturbate himself;
touching between the two was prohibited. The accused
argued that sexual contact is required for the act of
prostitution and because there was no such contact
between the dancer and the customer the offence had
not been made out. The Court recognized prostitution
itself does not amount to a criminal offence, but
remains prohibited in the context of solicitation,
common bawdy houses, and procuring. In adopting the
Supreme Court of Canada’s definition of prostitution,
“the offering by a person of his or her body for
lewdness for payment in return”, the Quebec Court of
Appeal found there were clearly sexual favours (the
dancer stimulated the customer by engaging in various
sexual acts) rendered in return for payment for the
sexual gratification of the customer (masturbating
themselves in most cases); physical contact is not
necessary. Furthermore, the accused argued that it
must also be established that the act of prostitution is
indecent. The Court rejected this assertion holding
that the act of prostitution is essentially
characterized as “a paid sexual activity” and “it is not
inherent in the act of prostitution that it be indecent”.
The appeal was dismissed.

2

REASONABLE GROUNDS FROM
INFORMANT TIP: SEARCH
INCIDENT TO ARREST
REASONABLE
R. v. Warford, 2001 NFCA 64
Police received a tip from a proven
and reliable informant that the
accused would be driving to a local
nightclub, at a particular time, to sell
cocaine. The informant told police
that the accused had received a shipment of cocaine on
August 24, that customers would phone him for delivery,
that the accused had sold a substantial amount of
cocaine at a named nightclub on August 27, and that he
always carried cocaine with him for sale. In addition, the
informant told police that on September 3 the accused
would be driving a black pickup truck from his residence
at about 11:00 pm to the nightclub to sell cocaine. Police
set up surveillance of the accused’s home at 9:00 pm to
corroborate the information of the informant. Neither
between this time and 11:10 pm, when the accused left
his residence driving the truck, was anyone seen
entering or leaving the residence or approach the black
pickup truck parked at the residence. The police
followed the accused, who was driving a route consistent
with going to the nightclub, and stopped him a short
distance away from the nightclub because they felt they
may encounter difficulties in securing the evidence if
the accused was arrested at the nightclub.
The police confirmed the accused’s identity, placed him
under arrest for possession of cocaine for the purpose
of trafficking, and conducted a frisk search that
resulted in the discovery of 6 half-gram packets of
cocaine. The truck was impounded and the accused’s
residence was later searched under a warrant where a
quantity of cocaine, cash, and scales were seized.
At trial, the judge found the accused’s s.8 Charter right
to be secure against unreasonable search or seizure had
been violated because the arrest was made on “the mere
suspicion of drug trafficking” and not based on
reasonable grounds; thus the search incident to the
unlawful arrest was unreasonable. Furthermore, the
evidence from the search could not be relied upon to
support the search of the accused’s home; the warrant
was tainted by the improper search of the accused’s
person. As a result, the evidence was excluded under
s.24(2) of the Charter and the accused was acquitted.

Volume 2 Issue 2
February 2002

The Crown appealed the ruling to the Newfoundland
Court of Appeal which concluded the trial judge erred in
failing to apply the proper analysis in assessing whether
the arrest was lawful. The unanimous appellate Court
applied the threefold test in assessing the
reasonableness of the search incidental to arrest:
• Was the arrest lawful?
• Was the search incidental to arrest?
• Was the search conducted in a reasonable manner?

Was the arrest lawful?
An arrest under s.495(1)(a) of the Criminal Code
requires a belief based on reasonable grounds. Although
the evidence of a tip itself is insufficient to establish
reasonable grounds, hearsay information can provide
reasonable grounds if it is sufficiently reliable and
credible (which cannot be provided by the results of the
search), and the proper two prong analysis for
reasonable grounds is satisfied:
1. Does the police officer from a subjective
perspective have reasonable grounds for arrest? and
2. Could a reasonable person in the position of the
officer conclude there were reasonable grounds for
the arrest?
In this case, the officer, from a subjective perspective,
had reasonable grounds to believe the accused was about
to commit an indictable offence (trafficking in cocaine
at the nightclub). The information provided by the
informant and some of its verification by surveillance
was sufficient from a subjective viewpoint that
reasonable grounds existed.
The objective test was also satisfied based on the
totality of the following factors:
• The information provided a significant amount of
detail including when the shipment was received, the
price the accused was selling it for, the mode of
delivery, that the accused drove a black pickup truck,
that the accused always carried cocaine with him for
sale, and that the accused would be going to a named
nightclub and would be arriving there at 11:00 pm.
• The police confirmed much of the information prior to
acting on it such as a truck matching the description
was parked in the driveway, the truck was driven by
the accused when he was stopped, the accused left his
residence at 11:10 pm, and the accused was followed

3

by police on a route consistent with going to the
nightclub.
• The police regarded the informant as a credible and
reliable source who had previously provided
information proven to be reliable on numerous
occasions over the past 18 months.
Succinctly, both the subjective and objective
components of reasonable grounds were satisfied and
the arrest was held to be lawful.

Was the search incident to arrest?
This phase involves assessing whether “the police [had]
an objectively reasonable rationale, related to the
arrest, for conducting the search”. In this case, the
purposes of the search were to protect the police
through the detection of weapons and to discover
evidence (cocaine); both valid objectives of a search
incidental to arrest.

Was the search conducted in a reasonable
manner?
The frisk search conducted would be an appropriate
manner of proceeding in this case and there was no
suggestion by the accused that the search was not
carried out in a reasonable manner.
Since the arrest was lawful and the resultant search
reasonable, the evidence seized as a consequence could
properly be used to support the issuance of a search
warrant for the accused’s home. In allowing the appeal
the Court remitted the matter back to the Supreme
Court for a new trial.

RIGHT TO COUNSEL:
UNDERSTANDING YOUR
DUTIES
Part 2 of 2

Sgt. Mike Novakowski

opportunity unless the person indicates a desire to
exercise their right2. The police are not obligated to
assume that a person will exercise the right to counsel
nor can the police be expected to guess whether a
decision has been made to exercise or to waive the
right3. If the person does not claim or assert in a
comprehensible way their right to counsel, the right to
counsel is deemed to be waived4 and the police may
continue with their investigation.

Waiver
A detainee or arrestee may waive their right to retain
and instruct counsel either explicitly or implicitly.
Where the waiver is implicit, the standard will be very
high5. Simply responding to questions
after being advised of the right to
counsel cannot normally be taken to be
a waiver of that right6. Nor is there an
implicit waiver where, despite the
person requesting counsel, the police
persist with questioning and the person
responds by answering. Where a person positively
asserts their desire to contact counsel and the police
ignore the request and proceed to question the person,
a person is likely to feel that their right has no effect
and that they must answer. In such a case the person
has the right not to be asked questions and will not be
deemed to have implicitly waived their right simply by
answering the questions7.
The waiver of the right to counsel must pass an
awareness of consequences test. If this test has not
been met, continued questioning will constitute a
violation of s.10(b). There is an obligation on the police
to delay questioning until the person is of sufficient
capacity to exercise their right to counsel or is aware
of the consequences of waiving that right8. Therefore,
s.10(b) requires that a person be advised of their right
to counsel at a time when they can understand their
right9. For a waiver to be effective, the Crown must
prove that the person had a full understanding of the

IMPLEMENTATIONAL DUTIES
Duty to Accommodate
Once the police have complied with the informational
requirements of s.10(b)1 there are no correlative duties
triggered which require the police to provide an
1

See Volume 2 Issue 1

Volume 2 Issue 2
February 2002

2

R. v. Baig [1987] 2 S.C.R. 537 (S.C.C.), R. v. Woods (1989) 49 C.C.C. (3d) 20 (Ont.
C.A.) at p. 29-30.
3
R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.) at p.435.
4
R. v. Baig (1985) 20 C.C.C. (3d) 515 (Ont.C.A.) affirmed [1987] 2 S.C.R. 537
(S.C.C.) at p.523, R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.) at p.435.
5
R. v. Brydges [1990] 1 S.C.R. 190 (S.C.C.).
6
R. v. Whittle (1994) 92 C.C.C. (3d) 11 (S.C.C.) at p.36.
7
R. v. Manninen [1987] 1 S.C.R. 1233 (S.C.C.).
8
R. v. Clarkson [1986] 1 S.C.R. 383 (S.C.C.) .
9
R. v. Cotter (1991) 62 C.C.C. (3d) 423 (B.C.C.A.) at p.430.

4

right to counsel and an awareness of the consequences
associated with waiving that right10.
Where the person to whom the police seek to question
does not meet the awareness threshold, it is incumbent
on the police to cease questioning until the person is of
sufficient capacity to meet the test. Certain types of
people will generally be found not to have the capacity
to waive their right to counsel due to their state of
mind or limited ability to understand the nature of
their jeopardy or their right to counsel. An operating
mind requires the limited cognitive capacity of a person
to11:
•
communicate with counsel,
•
understand the function of counsel, and
•
understand that the right to counsel can be waived
even if this is not in their best interests.
It is not necessary that the person possess analytical
ability. The inquiry does not go so far as to determine
whether the person is capable of making a good or wise
choice or a choice that is in their best interests.
However, it is incumbent on the police to make sure
that the person fully understands the right to counsel
and the consequences of waiving it.
Diminished
capacity may include circumstances where the person
suffers from:
•
•
•
•

intoxication
mental illness
emotional distress
lack of sophistication.

Although the police are to respect the right to
counsel12 they are not the guardians of the solicitor
client relationship13 and are not "required to insist on
consultation with counsel14". However, the police are
required to provide the person with a reasonable
time period, dependent on the circumstances, within
which to decide whether to exercise the right to
counsel15.
In most cases the decision to contact
counsel will be made reasonably quickly. If a person
chooses to invoke or exercise their right to counsel,
the police have two corresponding implementational
obligations16:
10

See also R. v. Nugent (1988) 42 C.C.C. (3d) 431 (N.S.C.A.) at p.455., R. v. Evans
[1991] 1 S.C.R. 869.
11
R. v. Whittle (1994) 92 C.C.C. (3d) 11 (S.C.C.) at p.30-31.
12
R. v. Nugent (1988) 42 C.C.C. (3d) 431 (N.S.C.A.) at p.460-461.
13
R. v. Bain (1989) 47 C.C.C. (3d) 250 (Ont.C.A.)
14
R. v. Charron (1990) 57 C.C.C. (3d) (Que. C.A.) at p.254, see also R. v. Ferron
(1989) 49 C.C.C. (3d) 432 (B.C.C.A.) per Taggart J.A. at p. 441.
15
R. v. Hollis (1992) 76 C.C.C. (3d) 421 (B.C.C.A.)
16
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.), R. v. Manninen (1987) 34 C.C.C. (3d) 385
(S.C.C.), R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.), R. v. Cho 2000 BCCA 658 at para. 43.

Volume 2 Issue 2
February 2002

•

to provide the person a reasonable opportunity
(except in urgent and dangerous circumstances)
to retain and instruct counsel without delay; and

•

to cease questioning or otherwise eliciting
evidence until this opportunity has been provided

It is important to recognize that the right to counsel
under s.10(b) is not absolute. The implementational
duties are not triggered unless and until the person
indicates a desire to exercise their right to counsel17.
The standard question "do you want to call a lawyer?"
provides the person an opportunity to assert their
desire to contact counsel. Where the person clearly
and unequivocally says "No" when asked whether they
want to call a lawyer, no further obligations are
triggered under s.10(b)18 beyond advising the person of
their rights19. Unless the person invokes the right to
counsel and is reasonably diligent in exercising it, the
duty to provide an opportunity and cease questioning
will not arise or will be suspended20.
In circumstances where the person is uncertain
whether to contact counsel, the police are obligated to
pursue the issue further and either obtain a clear and
unequivocal waiver or afford the person a reasonable
opportunity to exercise their right21.

Reasonable Opportunity
A person in the control of the police cannot exercise
their right to counsel unless the police provide a
reasonable opportunity to do so. Section 10(b) imposes
a duty on the police to provide a person with a
reasonable opportunity and sufficient time to retain
and instruct counsel22. This duty requires the police to
facilitate the person's realization of their right23. A
person in the control of the police cannot exercise
their right to counsel unless the police provide a
reasonable opportunity to do so. The duty to provide a
reasonable opportunity imports two aspects24:
• the person must be afforded the means to contact
counsel. This includes the duty of the police to offer

17

R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.)
R. v. Matheson [1994] 3 S.C.R. 328 (S.C.C.)
19
R. v. Rube (1992) 10 B.C.A.C. 48 (B.C.C.A.)
20
R. v. Bartle [1994] 3 S.C.R. 173 (S.C.C.), R. v. Black [1989] 2 S.C.R. 138 (S.C.C.), R.
v. Tremblay [1987] 2 S.C.R. 435 (S.C.C.), R. v Brydges [1990] 1 S.C.R. 190 (S.C.C.)
21
R. V. Small 1998 ABCA 85
22
R. v. Barbon (1986) 33 C.C.C. (3d) 259 (B.C.C.A.) at p.263, R. v Brydges [1990] 1
S.C.R. 190 (S.C.C.), R. v. Naugler (1986) 27 C.C.C. (3d) 257 (N.S.C.A.) at p.263.
23
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.184
24
See R. v. Smith (1988) 43 C.C.C. (3d) 379 per McLachlin J.A. in dissent.
18

5

the use of a telephone that is
operative25 and to assist the
person in making the telephone
call where the accused is
physically unable to do so. An
injured person, such as an impaired driver involved in
a motor vehicle accident and transported to hospital,
may require special arrangements to exercise their
right to counsel26.
• the person must be afforded a reasonable time
within which to contact counsel.
What constitutes a reasonable
time
varies
with
the
circumstances of each case. The
amount of time permitted for
contacting counsel must not be arbitrarily curtailed
to meet the convenience of the police or the desire
to
obtain
incriminating
evidence.
Relevant
circumstances in determining what constitutes a
reasonable time include the condition of the person
(eg. drunkeness), the presence or absence of urgency
in proceeding immediately with the investigation or
questioning, and the availability of counsel at the
time of arrest or detention. For example, if it is
apparent that further efforts in retaining counsel
will be futile, the person can no longer refuse to
provide a breath sample by invoking their rights
under s.10(b) of the Charter27.

Cease Questioning
Once a person has asserted the
right to counsel, the police cannot
compel the person to make a
decision or participate in a
process which could ultimately
have an adverse effect in the
conduct of an eventual trial until that person has had a
reasonable opportunity to exercise their right28. One
important reason of retaining legal advice without delay
is linked to the protection against self-incrimination.
For this reason there is a duty to cease questioning
until the person has had a reasonable opportunity to
retain and instruct counsel29. For the right to counsel
to be effective, the person must have access to the

25

R. v. Manninen (1987) 34 C.C.C. (3d) 385 (S.C.C.), R. v. Roseman (1986) 41 M.V.R.
274 (B.C.C.A.).
26
R. v. Nesheim (1998) Docket:CA022056 (B.C.C.A.)
27
R. v. Dunnett (1990) 62 C.C.C. (3d) 14 (N.B.C.A.) at p.23.
28
R. v. Black [1989] 2 S.C.R. 138 (S.C.C.), R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.), R. v.
Prosper [1994] 3 S..R. 236 (S.C.C.).
29
R. v Brydges [1990] 1 S.C.R. 190 (S.C.C.).

Volume 2 Issue 2
February 2002

legal advice before they are questioned or otherwise
required to provide evidence30. The police are obliged
to "hold off" from attempting to elicit incriminatory
evidence such as confessions, identification line-ups31,
and breath or blood samples from the person until they
have had a reasonable opportunity to reach counsel32.
Circumstances may arise where a sense of urgency may
justify the police in questioning the person without
providing that person with a reasonable opportunity to
consult counsel. Where questioning is imperative to
counter the risk of harm to others, questioning without
affording a reasonable time to consult counsel may be
justified33.

Right to Be Afforded Privacy
The police must afford an arrested
or detained person the right to
speak in private to counsel when
they exercise their right to speak
to a lawyer34. Providing a person
with a reasonable opportunity presumes an adequate
measure of privacy being provided to the person in
exercising their right to counsel35. There is no
obligation on the person to request or inquire as to the
right to consult in private36. The right to privacy
includes the following two elements37:
• the right to privacy is inherent in the right to
counsel38 (the onus is on the police to provide privacy
regardless of whether privacy is explicitly
requested)
•

the right to privacy begins after the person has
contacted counsel for advice (i.e. once the lawyer is
in a position to offer advice).

The right to privacy however, is not an entitlement to
absolute privacy. It simply means that the person has
the right to consult counsel under circumstances where
the conversation cannot be overheard or where there
is no reasonable apprehension of being overheard39. A
30

R. v. Manninen [1987] 1 S.C.R. 1233 (S.C.C.).
R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.).
R. v. Prosper [1994] 3 S.C.R. 236 (S.C.C.).
33
See R. v. Smith (1988) 43 C.C.C. (3d) 379 per McLachlin J.A. in dissent at p.394
34
R. v. R. (P.L.) (1988) 44 C.C.C. (3d) 174 (N.S.C.A.) per Macdonald J.A. at p. 180.
35
R. v. Kennedy (1995) 103 C.C.C. (3d) 161 (Nfld.C.A.) at p.184, see also R. v.
Manninen [1987] 1 S.C.R. 1233 (S.C.C.), R. v. Young (1987) 38 C.C.C. 452 (N.B.C.A.)
per Ryan J.A.
36
R. v. Jackson (1993) 86 C.C.C. (3d) 233 (Ont.C.A.) at p.240.
37
R. v. Standish (1988) 41 C.C.C. (3d) 340 (B.C.C.A.) at p.343.
38
See also R. v. Rees [1986] B.C.J. No. 1730 (B.C.S.C.), R. v. Playford (1987) 40
C.C.C. (3d) 142 (Ont.C.A.) at p.158, R. v. McKane (1987) 35 C.C.C. (3d) 481 (Ont.C.A.)
at p.481.
39
R. v. Miller (1990) 25 M.V.R. (2d) 170 (Nfld.C.A.).
31

32

6

person who believes that their conversation will be
overheard by the police will be substantially prejudiced
in making use of their right to counsel unless it can be
shown that the person was in fact able to retain and
instruct counsel in private. Proof that the person could
have consulted in private only by whispering or by some
other unusual device does not meet the test of
privacy40. Privacy ensures full and frank disclosure
between the person and their lawyer and permits
proper legal advice and assistance being rendered41.
Providing the person with access to a telephone room in
the police detention area may satisfy this right of
privacy. Often these rooms have a door which closes
and a viewing window to maintain a "watch" over the
person for security reasons. This type of telephone
facility will ensure complete confidentiality of
communication with counsel without compromising the
security and integrity of the investigation.
Circumstances will arise where a telephone is
immediately available, such as at an arrestee's home or
a cellular telephone is available at the roadside of an
impaired driving arrest. Although the phrase "without
delay" in the text of s.10(b) connotes immediacy, there
will be occasions where the police will have the
discretion to defer access to counsel to a police
controlled environment to ensure privacy. Frequently,
threats to officer safety are objectively unpredictable
and the destruction of evidence and escape are far
from speculative risks when a person is left
unsupervised in a non-police facility when exercising
their right to counsel in private42. Police officers who
make an arrest in potentially volatile situations may be
justified in denying the right to immediately make a
telephone call in order to prevent new factors from
entering the situation43. Where however, there is a
telephone at the place of arrest and there is no other
reason (eg. security considerations, privacy, integrity
of the investigation) which justifies delay, the police
should let the person use the telephone44.
If the police delay contact with counsel to facilitate
privacy in a controlled environment, the implementation
obligation requiring the police to refrain from eliciting

evidence continues until access to counsel in private is
granted45.

Reasonable Diligence and Right to Counsel
A person who seeks to exercise their right to counsel
must do so with reasonable diligence46. Just as there is
an obligation imposed on the police to provide a person
with a reasonable opportunity to contact counsel, there
is corresponding obligation on the person to exercise
reasonable diligence in exercising their right. The
immediate need for legal advice may often be
addressed by the police officer's obligation to inform
the person of the availability of duty counsel and Legal
Aid. The existence of duty counsel services may affect
the determination of "reasonable diligence", which in
turn may affect the length of time during which the
police cease eliciting evidence47.
Occasions may arise where it appears a person is taking
an unreasonably long period of time to contact counsel
and may even appear the person is feigning attempts to
contact counsel. This type of behaviour may arise in
impaired driving investigations where the person may
make efforts to delay the taking of breath samples
(stalling tactic) in hopes that their blood/alcohol
readings will decrease over time. If the person is not
reasonably diligent in exercising their right to counsel,
the correlative duties of providing a reasonable
opportunity and holding off in eliciting incriminating
evidence are suspended48. In R. v. Smith [1989] 2 S.C.R.
368 (S.C.C.), the police provided the accused with a
telephone book and telephone to contact his counsel.
The accused decided not to call because it was 9:00
p.m. and the only telephone number appearing in the
book was for his lawyer's office number. Police
suggested the accused attempt to call his lawyer since
it was possible that somebody would be at the office or
an answering machine would indicate a second telephone
number where the lawyer could be contacted. The
accused refused and decided to wait until morning.
Lamer J. found the police were justified in continuing
their questioning in obtaining a statement because the
accused was not reasonably diligent in the exercise of
his rights.

45
40

R. v. Playford (1987) 40 C.C.C. (3d) 142 (Ont.C.A.).
41
R. v. Rees [1986] B.C.J. No. 1730 (B.C.S.C.).
42
R. v. Van Wyk [1999] O.J. No.3515 (Ont.S.C.J.).
43
R. v. Taylor (1990) 54 C.C.C. (3d) 152 (N.S.C.A.) .
44
R. v. Gyori (1994) 19 C.R.R. (2d) 331 (Alta.C.A.) leave to appeal to S.C.C. refused
[1994] 1 S.C.R. vii.

Volume 2 Issue 2
February 2002

R. v. Gilbert (1988) 40 C.C.C. (3d) 423 (Ont.C.A.) at p.428, R. v. Gyori (1994) 19
C.R.R. (2d) 331 (Alta.C.A.) leave to appeal to S.C.C. refused [1994] 1 S.C.R. vii.
46
R. v. Dunnett (1990) 62 C.C.C. (3d) 14 (N.B.C.A.) at p.23, R. v. Luong (2000) 149
C.C.C. (3d) 571 (Alta.C.A.) at p. 575.
47
R. v. Prosper [1994] 3 S..R. 236 (S.C.C.).
48
R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.), R. v. Tremblay [1987] 2 S.C.R. 435 (S.C.C.), R.
v. Smith [1989] 2 S.C.R. 368 (S.C.C.) per Lamer J.

7

Right to Counsel of Choice
Section 10(b) entitles
an
arrested
or
detained person the
right to consult with a
lawyer
of
their
choice49. If however, their choice of counsel
necessitates an unreasonable delay, the arrested or
detained person has an obligation to accept another
lawyer50. Reasonable diligence in exercising the right to
choose one's counsel depends upon the context in
which the person finds themselves. It is the need for
immediate legal advice, not the need to seek the best
lawyer to conduct a trial, that underlies the right to
counsel imposed under s.10 of the Charter and the
corresponding obligation to exercise reasonable
diligence.
As a consequence of having the right to counsel of
choice, the person may contact a long distance number
to obtain that legal advice. The police must pay the
cost of the long distance billing if exercising the right
to counsel is dependent on a third party accepting the
call (calling collect) or if the person has an inability to
charge to their own number51. Where a person has
diligently exercised their right to counsel and is
awaiting a return call from their lawyer (such as is the
case where answering services take calls during late
evening hours), the police are obligated to let the
return call go through to the person in police custody.

Obtaining Counsel Through an Intermediary
A person who requests to call
someone, other than a lawyer in
connection
with
instructing
counsel, is asserting the desire
to exercise their right52;
seeking contact with counsel by
requesting to call a third party
is not a waiver of the right to counsel53. There may be
circumstances where the only course of action to
retain and instruct counsel and obtain advice will be
through an intermediary54. For example, where a
person does not specifically request to speak to a
lawyer but does request to speak to his wife to

determine whether she has been successful in
contacting a lawyer, he is asserting a desire to
exercise his right to counsel and the necessary
arrangements to enable the accused to call his wife for
the purpose of retaining counsel must be afforded55.
Any questioning commencing after a person asserts
their right, but before a reasonable opportunity is
afforded, will result in a Charter violation.

Dissuasion
The police must not attempt to dissuade a person from
attempting to exercise their right to counsel56. Section
10(b) of the Charter prohibits the police from
belittling a person's lawyer with the express goal of
undermining the person's confidence in, and
relationship with, counsel. Police will violate a person's
s.10 right to counsel if they are able to57:
• undermine the person's confidence in their lawyer,
such as denigrating the integrity of the lawyer or
making disparaging comments concerning the lawyer's
loyalty, availability, or legal fees, or
• undermine the person's relationship (solicitor-client)
with their counsel.

Offering Deals
If the police offer a plea
bargain or "deal", such as
charging with second degree
murder instead of first degree
murder in exchange for a
statement, this deal must be
offered either to the person's counsel or to the person
in the presence of their counsel unless the person has
expressly waived their right to counsel. A s.10(b)
breach will occur when the police coercively offer a
person a deal for a limited time only knowing that the
person's counsel of choice is unavailable58.

Change of Mind After Asserting Rights
Occasions may arise where a
person has asserted their
right to counsel and has been
reasonably
diligent
in
exercising their right but
indicates that they have

49

R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.)
R. v. Black [1989] 2 S.C.R. 138 (S.C.C.), R. v. Ross [1989] 1 S.C.R. 3 (S.C.C.)
R. v. David [1990] B.C.J. No. 1242 (B.C.Co.Ct.)
52
R. v. LaPlante (1987) 40 C.C.C. (3d) 63 (Sask.C.A.) per Vancise J.A. at p.74.
53
R. v. Tremblay [1987] 2 S.C.R. 435 at para.8.
54
R. v. Crossman [1991] B.C.J. No. 729 (B.C.C.A.)
50
51

Volume 2 Issue 2
February 2002

55

R. v. LaPlante (1987) 40 C.C.C. (3d) 63 (Sask.C.A.)
R. v. Smith (1999) Docket:C23659, C31758 (Ont.C.A.).
R. v. Burlingham [1995] 2 S.C.R. 206 (S.C.C.) per Iacobucci.
58
R. v. Burlingham [1995] 2 S.C.R. 206 (S.C.C.) per Iacobucci.
56
57

8

changed their mind and no longer want legal advice. In
these circumstances, the police are obligated to inform
the person of their right to a reasonable opportunity
to contact counsel and the police obligation in holding
off from obtaining incriminating evidence, whether by
statement or participating in any process59. This
additional informational requirement ensures that the
person has given a free and voluntary informed waiver
of their right to counsel60.

Delay in Providing Opportunity of Right to
Counsel
There may be cases of urgency where the police need
not provide a reasonable opportunity to contact
counsel61. Circumstances will occur where there is a
necessity to bring a potentially volatile situation under
control. The presence of unknown persons or weapons
in a home while police are executing a search warrant is
one example. The police will be justified in delaying
providing an opportunity to contact counsel when the
police are preventing any new factors from entering a
situation until the unknowns are clarified. Once the
police are clearly in control of a situation a reasonable
opportunity must now be provided62. "Urgency" in this
context does not refer to investigatory or evidentiary
expediency; mere expediency or efficiency of an
investigation is not sufficient to create enough urgency
to permit a s.10(b) breach63. Such a delay is only
appropriate until such time as matters are under
control. After which, access to counsel must then be
provided.
In search cases the police, as a general rule, are not
obligated to suspend a search and provide a person the
opportunity to retain and instruct counsel. Although a
person has the right to be informed of the right to
retain and instruct counsel upon arrest or detention,
police who seek to search a person incident to arrest
are not required to suspend the search until the person
has had an opportunity to contact counsel. However,
where a search is dependent upon a detained persons
choice to participate in a process, such as a consent
search, the person must have been afforded a

reasonable opportunity to exercise their right to
counsel64.

Continued
Counsel

Questioning

Following

Access

to

The police are entitled to question a person who has
chosen to exercise their right to counsel provided the
person has had a reasonable opportunity to retain and
instruct counsel65. Once a person has consulted counsel
in full measure, the duty imposed on the police to cease
questioning is removed and the police are entitled to
elicit evidence from the person66. Furthermore, police
are not prevented from questioning the person without
first receiving permission from counsel or without
counsel being present even though the police are aware
the person has been advised by their counsel not to say
anything67. To this end, police are entitled to pursue
legitimate means of persuasion to encourage persons to
speak in the absence of counsel provided the person is
in a position to make an informed choice by having had
the opportunity to consult counsel68. In R. v. Ekman
2000 BCCA 414 appeal to S.C.C. refused, Newbury J.
concluded the police obligation as follows:
In summary, whilst an accused has the right to counsel
and the right to remain silent in response to questioning
by the state, he or she does not have an absolute right,
after consulting counsel, to be free from police
questioning. Conversely, the police are not bound to
refrain from interviewing a suspect (again within
reasonable limits), nor bound to advise counsel they
intend to question the detainee. (emphasis added)

Similarly, there is no duty on the part of the police to
prevent a person, who had been advised of their
Charter rights, from making a voluntary statement
unless there was some indication that the earlier
Charter warning had not been understood or that the
person had changed their mind and now wanted to
speak to a lawyer69. An adult person70 does not have
the right to the presence of their lawyer at a police
interview71. The police are free to question a person in
absence of counsel as long as the person has been
afforded the informational (right to counsel and
64

R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Lamer J.
R. v. Playford (1987) 40 C.C.C. (3d) 142 (Ont.C.A.) at p.168.
66
R. v. Ekman 2000 BCCA 414 at para. 22, see also R. v. Hebert [1990] 2 S.C.R. 151
(S.C.C.) per McLachlin J., see also R. v. J.T.J (No.2) (1988) 40 C.C.C. (3d) 97
(Man.C.A.) per Huband J.A., R. v. Cuff (1989) 49 C.C.C. (3d) 65 (Nfld. C.A. ) at p.
72-73.
67
R. v. Emile (1988) 42 C.C.C. (3d) 408 (N.W.T.C.A.) at p.430.
68
R. v. M.C. [1998] B.C.J. No.1582 (B.C.S.C.) at para.53.
69
R. v Gray (1993) 81 C.C.C. (3d) 174 (Man.C.A.) per Scott C.A. at p.185.
70
See s.56(2) of the Young Offenders Act in cases of young persons.
71
R. v. Mayo (1999) 133 C.C.C. (3d) 168 (Ont.C.A.).
65

59

R. v. Prosper (1994) 92 C.C.C. (3d) 353 (S.C.C.) at p.378-379, R. v. Luong (2000)
149 C.C.C. (3d) 571 (Alta.C.A.) at p.576.
60
R. v. Smith (1999) Docket:C23659, C31758 (Ont.C.A.).
61

R. v. Manninen [1987] 1 S.C.R. 1233 (S.C.C.), see also R. v. Gilbert (1988) 40 C.C.C.
(3d) 423 (Ont.C.A.) at p.429.
62
R. v. Strachan (1988) 2 S.C.R. 980 (S.C.C.)
63
R. v. Burlingham [1995] 2 S.C.R. 206 (S.C.C.) per Iacobucci J.

Volume 2 Issue 2
February 2002

9

availability of Legal Aid and duty counsel) and
implementational (reasonable opportunity and holding
off) components72. A person does however, have the
right to remain silent and may therefore impose or
insist on having their lawyer present as a precondition
to waiving their right to silence.
Similarly, a lawyer cannot insist on being present when
the police question a person who has obtained counsel.
Detained persons themselves must decide whether to
speak to the police on their own or not at all73. The
police are permitted to use appropriate perseverance in
questioning a person, provided the questions are noncoercive or oppressive. Questioning which commences
as a legitimate form of persuasion may, because of the
degree of emotional or psychological pressure brought
to bear, render the statement involuntary and thus
inadmissible74.
Once the right to counsel has been exercised,
different considerations apply to the granting of
subsequent access to counsel than before counsel had
been consulted. The pressing need to cease questioning
until counsel's advice has been obtained no longer
exists. Although the right to counsel must be
"reactivated" in certain circumstances, once the
obligation of the police has been met the police may
attempt to elicit evidence75. For example, the police
are not required to defer their investigation of a
person arrested in Alberta for offences in Ontario
when the person expresses a desire to talk to
particular legal counsel when he is escorted back to
Ontario by police76.

Limitation of Right to Counsel
Motorists
Stopping of a motorist by
the police related to
traffic
control
enforcement (ie. speeding,
the
inspection
of
documents,
mechanical
condition, detection of
impaired drivers), although a detention for the
purposes of the Charter, does not require that the
motorist be advised of their Charter rights under s.10.

This suspension of the right to counsel is a reasonable
limit under s.1 of the Charter.
Roadside Screening Device Demand
A person who is requested to submit to an immediate
breath sample by means of an approved screening
device at the roadside under s.254(2) of the Criminal
Code is not required to be advised of their right to
counsel under s.10 of the Charter. Provided the focus
of the stop is restricted to highway safety and
compliance with the demand, the suspension of the
right to counsel is a reasonable limit under s.1 of the
Charter. This is even the case where a person has
ready access to a cellular telephone. The existence or
non-existence of a constitutional right cannot vary on
the basis of how far a person is from a telephone at
the time the demand is made77.
Sobriety Tests
When requesting the performance of sobriety tests,
the police need not inform the suspected impaired
driver of their right to counsel if the purpose is to
assess suspicion and thus permit the officer’s
formulation of reasonable grounds of impairment.
However, the results of the sobriety tests are only
admissible for the purpose of establishing the
officer's reasonable grounds for the breath demand
and are not admissible for the purpose of incriminating
the person at trial. However, once the police form
reasonable grounds for the demand, there is nothing
which prevents the police from providing the person
with their s.10(b) rights and then repeating the tests
for the purposes of obtaining court admissible
incriminating evidence78 (provided the driver waives
this right).

Summary
The police obligation imposed by s.10(b)79 includes:
Clearly and properly informing the person by a
method of communication and in terms the person
can understand at a time they are capable of
understanding or comprehending they have the
right to retain and instruct (obtain) counsel
without delay and of the existence and availability
of Legal Aid and duty counsel. If there are special
circumstances
which
suggest
a
lack
of

72

R. v. Gormley (1999) Docket:AD-0680 (P.E.I.C.A.) at para.42.
R. v. Ekman 2000 BCCA 414.
R. v. Ballantyne (1997) Docket:10929 (B.C.S.C.) at para.28.
75
See for example R. v. Ballantyne 1997 Docket:10929 B.C.S.C. at para.24.
76
R. v. Wells (2001) Docket:C13744 (Ont.C.A.)
73
74

Volume 2 Issue 2
February 2002

77

R. v. Sadlon (1992) 36 M.V.R. (2d) 127 (Ont.C.A.) leave to appeal to S.C.C. refused
[1992] 3 S.C.R. viii., see also R. v. Smith (1996) 105 C.C.C. (3d) 58 (Ont.C.A.).
78
R. v. Barlow 1996 Docket:8141 B.C.S.C.
79
See for example R. v. Luong (2000) 149 C.C.C. (3d) 571 (Alta.C.A.) at p.574-575.

10

understanding such as shock, drunkenness, or
mental deficiency, the police officer must go
further in explaining the right
If the person chooses to exercise their right to
counsel the police must
• Provide the person the opportunity to exercise
the right without delay (This may require
assisting the person in their efforts to obtain a
lawyer and includes ensuring privacy).
• Stop eliciting evidence prior to affording them
the reasonable opportunity to retain and instruct
counsel. If the person is not diligent, this
"holding off" obligation is waived
The Crown has the burden of establishing that the
person who invoked their right to counsel was provided
with a reasonable opportunity to contact counsel. The
person has the burden of establishing that they were
reasonably diligent in the exercise of their right. If
the person was not reasonably diligent then the
implementational duties of s.10(b) do not arise or will
be suspended80 and the police may continue with their
investigation.

DID YOU KNOW…?
…in 2000 the average time between the filing of an
application for an appeal before the Supreme Court of
Canada and the decision on whether the appeal will be
heard is 5.4 months. From the time of the decision to
the time of the hearing takes another 12.5 months.
Finally, on average an additional 5.8 months will elapse
between the hearing and the judgment of the Court. In
short, it takes 23.7 months, or 10 days short of 2 years,
for a case to make it through the Supreme Court.
Remember this the next time you need to make that
decision in a moments notice without a second opinion,
judicial review, or appellate process!!!81

Note-able Quote
“In the APEC and Hyatt matters, the police directly

interfered [with the protests] and have been roundly
criticized for doing so. In truth, the police will be
damned if they do act and damned if they don’t82.”
BCCA Justice Southin.

CLASS 85 GRADUATES
The Police Academy is pleased to announce the
successful graduation of recruit Class 85 as qualified
municipal constables on February 8, 2002.
ABBOTSFORD
Cst. Jodi Christie
Cst. James Gerrits
Cst. Ryan Reed
Cst. Gary Reid
Cst. Linley Steeves

SAANICH
Cst. Marco Berton
Cst. Heather O’Connor

VANCOUVER
Cst. Mark Bradshaw
Cst. Richard Coulthard
Cst. Shaun Deans
Cst. Jocelyn Deziel
Cst. John Fillippelli
Cst. Anna Grigoletto
Cst. Gabriel Kojima
Cst. Lene MacKay
Cst. Darin McDougall
Cst. David Moe
Cst. Daniel Murphy
Cst. Ana Oproescu
Cst. Dale Quiring
Cst. Conrad Van Dyk

STL’ATL’IMX
Cst. Cheryl Simpkin

VICTORIA
Cst. Sergei Babakaiff

DELTA
Cst. Craig Burridge
Cst. Gwyneth Nichols
Cst. Richard Peeler

WEST VANCOUVER
Cst. Lisa Alford
Congratulations to Cst. Shaun Deans
(Vancouver), 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. Dale Quiring (Vancouver)
received the Abbotsford Police Association Oliver
Thomson Trophy for outstanding physical fitness. Cst.
Richard Coulthard (Vancouver) was the recipient of the
Vancouver Police Union Excellence in Academics award
for best academic test results in all disciplines. Cst.
James Gerrits (Abbotsford) 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. Richard Coulthard
(Vancouver) was the recipient of the Abbotsford Police
Recruit Marksmanship award for highest qualification
score during Block 3 training (50/50).

80

R. v. Luong (2000) 149 C.C.C. (3d) 571 (Alta.C.A.) at p.575.
Source: the Supreme Court of Canada’s Bulletin of Proceedings: Special Edition
available at www.scc-csc.gc.ca/information/statistics/index_e.html
82
R. v. Clark 2001 BCCA 706
81

Volume 2 Issue 2
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11

ASSAULT CBH: INCLUDED
OFFENCE OF AGGRAVATED
ASSAULT
R. v. Soluk, 2001 BCCA 519
The accused appealed his conviction
of assault causing bodily harm after
he was charged with aggravated
assault when he threw ammonia in
the victim’s face. The accused
argued that he could not be convicted of assault
causing bodily harm as an included offence within an
unparticularized charge of aggravated assault. Under
s.662 of the Criminal Code, an offence may be included
in the other if it is described in the enactment
creating it or if it is included in the offence as charged
in the count. Because the wording of the charge did not
explicitly reference “bodily harm”, the issue on appeal
was whether assault causing bodily harm is included in
the offence of aggravated assault in the enactment
creating it. The British Columbia Court of Appeal held
that assault causing bodily harm is included in 3 of the
4 ways (wounding, maiming, or disfiguring) in which an
aggravated assault may be committed and dismissed
the appeal.
Complete case available at www.courts.gov.bc.ca.

LIVING OFF THE AVAILS:
PARASITISM DOES NOT
REQUIRE COERCION
R. v. Barrow,
(2001) Docket:C30789 (OntCA)
The accused ran an escort agency and
arranged dates between male clients
who called the agency and the female
escorts she employed. The accused kept
1/3 of the fee that ranged between
$150-$180. Although the accused did not coerce the
escorts and was supportive of them, she was aware
that the escorts would on occasion engage in sexual
activity and counseled them on how to deal with such
requests and what precautions to take. The accused
was convicted of several prostitution related offences,
including three counts of living off the avails, on the
evidence of two female undercover police officers
posing as potential employees and four of the escorts.

Volume 2 Issue 2
February 2002

The accused appealed her convictions arguing “she
should not be convicted of the living off the avails
offence because her relationship with the escorts was
supportive rather than exploitive”; there was no proof
of the required element of a parasitic relationship. The
accused submitted “she provided services that allowed
the women to remain off the streets in relative safety.
No escort was forced to take a particular job, nor
perform any particular act, including sexual acts. She
provided advice and, in some cases, friendship”.
In holding that the accused was properly convicted, the
Ontario Court of Appeal found the element of
parasitism was established by “the fact that she is in
the business of rendering services to the escorts
because they are prostitutes”. Furthermore, the Court
rejected the accused’s policy argument that the escort
agency relationship should not fall within the offence
of living off the avails unless there was some element
of coercion or control.
Complete case available at www.ontariocourts.on.ca.

SAFETY SEARCH
UNREASONABLE: POLICE
EXCEED SCOPE
R. v. Shatford, 2001 NBPC 9
Police responded to a fight in front
of a nightclub where an upset female
who had been drinking approached
and, while pointing in the direction of
two people in the parking lot, alleged
that “those fellows just threw a knife at me and my
boyfriend”. As one of the two officers responding
approached the two people he observed they were
arguing; a male was backing away from an angry female
who said “he’s one of them too”. With only these two
statements the officer placed his hand on the accused,
took him by the arm to the police car, and ordered him
to put his hands on the car. After asking “why”, the
officer informed the accused he had just thrown a knife
into a crowd and that he was still investigating the
complaint. After being granted permission to put some
money in his pocket, the officer commanded the accused
to place his hands on the hood of the car. The accused
did not comply and after observing the accused
fidgeting in his pockets, the accused was placed in an
arm bar and was handcuffed. The accused was pat
frisked and 12 rocks of cocaine were found in his pocket.

12

In summarizing the law regarding investigative
detentions, the provincial court judge stated:
The common law principle authorizing searches incidental
to arrest has been extended to persons lawfully detained
for investigations. The power to detain for investigative
purpose exists under common law. The standard imposed
for authorizing detention for investigative purposes is
one of reasonable suspicion based on an articulable cause
which means the officer must establish "...a constellation
of objectively discernable facts which give the detaining
officer reasonable cause to suspect the detainee is ..."
involved in the activity under investigation.
The power to conduct searches incidental to lawful
arrest or detention is not limitless and must not be
conducted in an abusive fashion. Cursory searches such as
"frisk" or "pat down" searches for weapons undertaken
for the purpose of officer safety and carried out in an
inoffensive manner have been found to be minimally
intrusive to the detainee and therefore reasonable in the
circumstances.
Courts have been mindful of the difficult and often
dangerous and urgent circumstances under which police
officers must exercise their discretion as to articulable
cause detentions and incidental searches. Courts have
allowed the police latitude and grounds to conduct
investigations in safety.
However, although a peace officer having articulable
cause may briefly detain a person to investigate him, the
officer may not search the person for contraband in the
absence of reasonable and probable grounds to arrest
the person for possession of the contraband.
In summary, a police officer, if he or she has articulable
cause, may detain a person for investigative purposes. In
order to protect him or herself during the course of the
detention, the officer may conduct a search of the
detainee. The permitted scope of the search will depend
upon the circumstances facing the officer. (references
omitted)

Three reasons were advanced by the Crown to justify
the police action of securing the accused in an arm bar
and handcuffing him:
• failure to comply with the command to put his hands
on the car,
• hand fidgeting in his pockets, and
• officer safety
The trial judge found that if the officer was really
concerned about his safety he would not have initially
allowed the accused to put his hands in his pockets. To
this end, “the failure to obey a command and the hand
fidgeting were really induced by the officer in the first

Volume 2 Issue 2
February 2002

place”. A second officer testified that the conduct could
also indicate the presence of contraband. The Provincial
Court judge held:
In my opinion, the police officer shifted his principal
focus from a weapons investigation to suspicion the
accused had contraband and that is probably the
underlying reason that he then commanded the accused
to place his hand on the hood and then placed him in an
arm bar and handcuffs when the accused did not
immediately comply.

And further:
[T]here were no visual signs indicating the presence of a
weapon on the accused, such as a bulge or protruding
object for which s, 117.02 [of the Criminal Code] would
allow a search for a weapon. There was no reasonable
prospect apparent of securing evidence of the offence
for which the accused was being detained.
Did the circumstances then give the police the right to
search the accused? In my opinion, they did not. In the
absence of officer's safety concerns there can not be an
argument that a search of his person for contraband is
warranted as ancillary to investigative detention on an
unrelated matter. Further there is no other basis which
would justify the warrantless search.

Having found a breach of the accused’s s.8 right, the
evidence was excluded under s.24(2) of the Charter.

POLICE NEGLIGENT BUT NO
CAUSATION:
ACTION DISMISSED
Mooney et al. v. Attorney General et al.,
2001 BCSC 419
The plaintiff brought an action
against the Attorney Generals of
Canada and British Columbia and a
named RCMP officer alleging that the
officer was negligent in failing to
investigate the threatening behaviour of her commonlaw husband (Kruska) and that reasonable steps were not
taken to protect her family. On November 5th, 1995 the
plaintiff and her common-law husband separated
following a brutal assault; the plaintiff was struck on the
thigh and head with a walking stick after she had been
choked into unconsciousness. This was the fourth time
she had been assaulted by her common-law. Kruska was
arrested and charged with assault with a weapon and
cause bodily harm, but the plaintiff subsequently
provided a second statement to police claiming she
started the incident, did not want to proceed with

13

charges, and that the whole issue was “bullshit”. This
occurred after Kruska threatened suicide if he received
a long prison sentence and after he had promised the
plaintiff he would convey his property interest in their
home to the plaintiff. Although Crown did not believe
the plaintiff, a plea bargain was struck whereby Kruska
pled guilty to ordinary assault and was sentenced to 21
days in jail and received a one-year probation order.
Kruska had a criminal record for drug trafficking,
manslaughter, and sexual assault.

• adequately inform himself of Kruska’s background and
propensity for violence;
• conduct an adequate investigation of the background
circumstances and the complaints of violence and
threats against the plaintiff;
• respond in a timely and adequate manner to the
complaints of the plaintiff; and
• take reasonable steps in all the circumstances to
ensure the safety and security of the plaintiff and
her family after March 11, 1996.

Kruska had moved to live with his parents in Prince
George and on March 11, 1996 called the plaintiff asking
her to meet him to discuss the transfer of the home.
They initially met in a restaurant, but then drove to a
park. The plaintiff became concerned about Kruska’s
increased agitation during their conversation in his car
so she exited his vehicle, entered her own and left (even
though Kruska attempted to prevent her) with Kruska
chasing her in his car. The plaintiff circled a friend’s
home honking her horn to get the friend’s attention; this
apparently discouraged Kruska’s pursuit. The plaintiff
attended the Prince George RCMP detachment to report
Kruska’s threatening behaviour. The investigating
officer examined the plaintiff’s written statement,
questioned her briefly, obtained a copy of Kruska’s
criminal record, and took the documents to the watch
commander. The watch commander agreed with the
investigating officer that there were insufficient
grounds to recommend a complaint under s.810 of the
Criminal Code (peace bond application) and the plaintiff
was recommended to speak with a lawyer about obtaining
a restraining order.

To succeed in an action of this nature, a plaintiff must
prove on the civil standard the following:

On the morning of June 16, 1996, the plaintiff argued
with Kruska on the phone (no threats were made) and
the police were not called. Later that evening, Kruska
attended the home of the plaintiff, smashed the sliding
glass door with the butt of his shotgun, and entered the
house. A friend of the plaintiff’s, who had confronted
Kruska, was shot dead, the plaintiff’s 12-year-old
daughter Michelle was shot in the shoulder. The plaintiff
escaped through the bathroom window. Michelle was
able to boost her sister through the same bathroom
window and the two girls ran in opposite directions.
Kruska set the home on fire then killed himself.
The plaintiff sued, alleging the RCMP officer
investigating the previous threatening behaviour owed
her a duty of care and was negligent for failing to:

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February 2002

• the defendants (police) owed her a duty of care;
• the defendants (police) breached the duty of care
(were negligent); and
• the negligence materially contributed to the harm
caused; the damages flowed from the breach.
Before addressing the duty of care, the Court examined
s. 21(1) of the Police Act which exempts police officers,
in the absence of a finding of gross negligence, from
actions for damages arising out of the performance of
their duties. Even if the officer was negligent in this
case, but not grossly negligent, he is protected under
this section from personal liability. However, s. 11(1) of
the Police Act imposes vicarious liability on the Province
of British Columbia upon a finding of negligence.

Duty of Care
In finding that the police owed the plaintiff a duty of
care, the trial judge concluded that the officer was
negligent (although not grossly negligent) in his actions
for failing to properly commence an investigation. The
officer was well aware of current policies concerning
domestic violence and an internal investigation
determined the officer’s handling of the complaint failed
to meet investigative standards.

Causation
In assessing whether the action’s of the officer, or his
nonfeasance, materially contributed to the shootings,
the court found “no clear connection between [the
officer’s]
failure
to
act…and…Kruska’s
fateful
trip…seven weeks later. The officer’s inaction did not
materially increase the risk of harm to the extent that
[the officer] must bear responsibility for Kruska’ acts”.
Although the officer owed the plaintiff and her family a
greater duty of care than was demonstrated, causation

14

was not established and the claim for damages was
dismissed.
Editor’s Note: In anticipation of an appeal, the judge
released supplementary reasons for judgment (reported
at 2001 BCSC 1079). Had causation been proven, the
Court would have awarded damages as follows:
• plaintiff’s daughter who was shot
•
pain, suffering, loss of enjoyment=$150,000
•
future care=$25,000
•
loss of future income=$100,000
• plaintiff’s uninjured daughter
•
non-pecuniary damages=$15,000
• plaintiff
•
non-pecuniary damages=$75,000
•
past income loss=$90,000 (no award for future
income loss)
Complete case available at www.courts.gov.bc.ca.

FORCE USED DURING IMPAIRED
INVESTIGATIVE DETENTION
JUSTIFIED
Parker v. Vancouver, 2001 BCSC 1784
A Supreme Court judge dismissed a
claim for damages as a result of
injuries suffered during an alleged
unlawful detention and assault by
members of the Vancouver Police
Department. A motorist, who had observed a vehicle
driving erratically, running stop signs and red lights,
and driving all over the road, called 911 to report the
incident. By chance, the motorist spoke to a police
officer he noticed nearby and pointed to the suspect
vehicle. The officer closed the distance and activated
the police emergency lights but the vehicle did not
stop. The vehicle continued and turned down a lane
after making several turns. The officer thought the
vehicle was trying to evade him or the driver was going
to dump the vehicle.
The vehicle stopped behind a garage and the female
passenger immediately jumped out and went towards a
house. The officer testified that he stopped about two
car lengths behind the plaintiff’s vehicle, exited as did
the plaintiff, and called to the plaintiff who made a
turn "as though he was going to go south." The officer
said "police" and told the plaintiff to "hold on." This
had "no effect" and when the officer came within an

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February 2002

arm's length of the plaintiff the officer reached and
touched him. The plaintiff muttered "get your hands
off." The officer asked the plaintiff if he had seen the
police vehicle but there was no response. The plaintiff
was getting more agitated and the constable told him
he was under investigation for impaired driving. The
plaintiff’s agitation increased and he took a "fighter
stance" which, along with the look in his eyes and the
tension in his jaw, led the officer to recognize that he
anticipated resistance.
The officer ordered the plaintiff to put his hands
behind his back. With the assistance of the motorist,
the plaintiff was handcuffed. The plaintiff’s "walking"
could not be controlled so the officer placed him on
the ground using a leg sweep. The plaintiff was held in
this position and after two minutes settled down.
The female passenger, who had returned from the
house, was hysterical and demanded to know what the
officer was doing; she said she would call her lawyer.
The female was ranting and pointing and poking at the
officer’s chest. She gave the officer no opportunity to
reply to her questions and he told her to get back but
it "fell on deaf ears." The officer physically moved the
female; her response was to charge, swinging and
flailing her arms. The officer grabbed her by the neck
and pushed her back to the garage. He then put her
over the hood of the motor vehicle with one arm behind
her back. She continued to struggle and tried to kick
the officer in the groin. When other officers arrived
she was handcuffed. When the officer received
information about an outstanding probation order he
decided to arrest the plaintiff for breach of probation.
In dismissing the suit, Justice Thackray stated in his
conclusion at para. 58-62:
Section 73 of the Motor Vehicle Act, … , … , provides
that a peace officer may require the driver of a vehicle
to stop and that a driver when signalled to stop by an
officer must immediately come to a safe stop.
[The plaintiff] was so signalled and failed to obey.
Section 25 of the Criminal Code, … , provides that every
peace officer is, if he acts on reasonable grounds,
justified in doing what he is required to do and in using as
much force as is necessary for that purpose.
I am of the opinion that [the officer] was acting within
his authority when he signalled [the plaintiff] to stop his
motor vehicle. I am also of the opinion that in carrying
out his duties to investigate [the plaintiff] for impaired

15

driving he was authorized to use as much force as
necessary.
In carrying out those duties and responsibilities
detention was the only course open to [the officer]. In
effecting the detention [the officer] used no more force
than necessary.

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

CHANCE “CRANE” GAME
ILLEGAL: CONVICTIONS
UPHELD

R. v. Balance Group International Trading Ltd.,

(2002) Docket:C34761 (OntCA)
The Ontario Court of Appeal dismissed
an appeal from convictions resulting
from the operation of two “crane
games”. Following the seizure of two
games from the accused premises,
charges were laid under s. 206(1)(f) of the Criminal
Code, which reads:
s.206(1)(f) Criminal Code
Every one is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years who…disposes
of any goods, wares or merchandise by any game of chance or
any game of mixed chance and skill in which the contestant or
competitor pays money or other valuable consideration…

The trial judge described the games as follows (2000,
O.J. No. 2771 (Ont.Crt.Jus.):
The games became operational when a player deposited
money into the machine. Once this was done, the player
could move a joystick. This joystick directed an overhead
crane to be positioned where the player wanted it. After
the crane was positioned, the player depressed a red
button on the joystick thereby causing a 3-tine claw to
descend into a bin containing toys and novelties. The claw
then would close and the claw and prize (provided one had
been secured) would ascend. The claw would move to a
position over a chute. At this point, the claw opened
thereby depositing the object into the chute. The player
could then take possession of the selected property. It is
to be noted that the player had no control over the
machine once he had activated the red button on the
joystick.

In dismissing the accused’s appeal, a unanimous Ontario
Court of Appeal held:

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February 2002

In our view, the amount of control exercised by the
ordinary player was so minimal that the game operated as
one of chance or at best mixed chance and skill. The
evidence established that the average player simply could
not exercise sufficient skill to compensate for the other
elements of the game that were wholly beyond the power
of the player to influence. The ability of the player to
control the crane’s lateral movement gave the appearance
of an element of skill. In reality, however, as a matter of
common sense the game would be played as a game of
chance. The expert evidence adduced by the Crown and
accepted by the trial judge demonstrated that there were
too many other variables that were far more important
than the positioning of the crane that would overcome
what little skill the operator might bring to the game.
We agree with the [accused] that simply because a game
has an increased level of difficulty does not necessarily
mean the game will be viewed as one of chance or mixed
skill and chance. We also accept that merely because some
elements of the game are out of the control of the player
does not make the game one of mixed chance and skill.
Where, as in this case, however, virtually all of the
elements of the game are out of the control of the player,
it was open to the trial judge to conclude as he did that
the game is one of mixed chance and skill. As the trial
judge said, as a matter of common sense the games are
“games of mixed skill and chance with an overwhelming
degree of chance and merely a dash of skill”. This was not
a case where there were some unpredictable elements that
might occasionally defeat the player’s skill, but the
systematic resort to chance (references omitted):

Editor’s Note: These types of games are not
prohibited in all circumstances. For example, s.206(3)
of the Code exempts s.206(1)(f) while the chance
games are being operated at an annual fair or
exhibition.
Complete case available at www.ontariocourts.on.ca.

TIP, SWAY, ODOUR, &
BLOODSHOT EYES:REASONABLE
GROUNDS SATISFIED
R. v. Costello,
(2002) Docket:C36444 (OntCA)
The Ontario Court of Appeal
restored the conviction of an
accused who earlier had his
conviction overturned by the Ontario
Superior Court of Justice. In
entering an acquittal, the lower appeal court (reported
at [2001] O.J. No. 2109 (Ont.S.C.J.)) found the trial

16

judge had erred in finding that the officer had
reasonable grounds to believe the accused’s ability to
operate a motor vehicle was impaired. Although the trial
judge “correctly outlined the legal test as being one of
totality of the evidence objectively viewed”, it is the
“whole package of evidence” which must be considered
“and not just certain items that would support
impairment”. In noting several factors that indicated a
lack of impairment, which were not given sufficient
weight, the appellate court judge found the trial judge
had reached an unreasonable conclusion on the existence
of reasonable grounds when viewed objectively. The
factors noted by the summary convictions appeal court
judge were listed as follows:
• “there was no observation by the officer of erratic
driving - in fact he observed reasonable driving;
• “the officer noted no difficulties with the speech of
the [accused];
• “[the accused] was cooperative:
• “[the
accused]
responded
immediately
and
appropriately in stopping his motor vehicle without
difficulty, which is normal behaviour;
• “[the accused] produced his correct documents such
as driver's licence and insurance, without problems;
• “the officer noted no difficulty with respect to the
ability of the [accused] to walk, move or maintain his
balance other than swaying when producing the
ownership documents;
• “the only observation with respect to his physical
condition was bloodshot eyes as opposed to being
glassy or with dilated pupils, as a result of which the
observation of his physical condition was entirely
equivocal;
• “the existence of an odour of alcohol from the
breath of the [accused] was consistent with
consumption of some alcohol, however that's not
enough to find reasonable and probable, grounds that
he is unable to drive;
• “[the accused] didn't personally interview the civilian
complainants - they had just pointed;
• “there were no details provided by the civilians at
the restaurant as to the nature of their
observations, which would enable either the officer
or the learned trial Judge to evaluate the
reasonableness or accuracy of such observations.
In allowing the appeal and restoring the conviction a
unanimous Court of Appeal found the appeal court judge
who overturned the conviction should not have reweighed the evidence in determining whether reasonable
grounds existed; the trial judge considered the relevant

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February 2002

evidence and concluded the reasonable grounds standard
had been met. Regarding factors indicating a lack of
impairment listed by the appellate court judge, the
unanimous Court of Appeal held:
It was open to the trial judge to find that the officer had
grounds to make the demand. The absence of some
factors that are sometimes found in an impaired driver
did not undermine the finding of reasonable grounds based
on the tip from the civilian, confirmed by the officer’s own
observations that the respondent was swaying, had an
odour of alcohol, and had bloodshot eyes. (emphasis added)

Complete case available at www.ontariocourts.on.ca.

PAST POLICE PRACTICE
PROVES FACT
R. v. Thomson,
(2001) Docket:C32509 (OntCA)
The accused appealed his conviction
of failing to comply with a demand to
provide a breath sample. A police
officer stopped the accused and
after receiving an admission to the
consumption of “one or two beers” and noting an odour of
alcoholic beverage on his breath and red and bloodshot
eyes, the officer made a demand for a roadside breath
sample. Following three apparent attempts, the accused
was arrested for failing to provide a sample. During the
first attempt the officer did not hear the tone the
device was supposed to make nor hear any air passing
through the mouthpiece; during the second and third
attempts air did enter the device but there was
insufficient pressure to activate it. Among several
grounds of appeal, it was argued the trial judge erred in
finding that the officer checked for obstructions in the
mouthpiece. The accused asserted that although the
officer stated that it was her standard practice to
check for obstructions in the mouthpiece, she had no
specific memory of doing so and the judge should not
have found that she did. In dismissing the appeal, the
unanimous Court stated, at para. 9:
If [the judge] accepted [the officer’s] evidence that it
was her standard practice to check the mouthpiece and
that she must have done so on the occasion in question, it
was reasonably open to him to find, as he did, that she had
checked it on the occasion in question.

Complete case available at www.ontariocourts.on.ca.

17

Note-able Quote
“Every year, drunk driving leaves a terrible trail of
death, injury, heartbreak and destruction. From the
point of view of numbers alone, it has a far greater
impact on Canadian society than any other crime. In
terms of the deaths and serious injuries resulting in
hospitalization, drunk driving is clearly the crime
which causes the most significant social loss to the
country.”83 SCC Justice Cory

BREAKING SILENCE: POLICE
PERSUASION VIOLATES
CHARTER
R. v. Otis,

(2000) 151 CCC (3d) 416 (Que.C.A.) appeal
to Supreme Court of Canada dismissed 2001
The accused was questioned by the
police following the discovery of the
body of a three-year-old girl
reported missing by her mother.
The girl died from violent blows causing abdominal
hemorrhaging and was found near a cottage owned by
the accused’s father and occupied during the preceding
days by the accused, the deceased girl’s mother, and
her two children (including the deceased). At the police
station, the mother of the murdered girl provided a
statement that led to the arrest of the accused. He
was informed of his right to counsel and met with a
legal aid lawyer for 32 minutes. Later in the evening,
shortly past midnight, the accused was subject to a
videotaped interrogation lasting 90 minutes by a lone
police investigator who was a specialist in interrogation;
during the last 45 minutes the accused confessed to
the murder. At trial, the judge found the accused had
an operating mind despite a difficulty in expressing
himself, limited vocabulary, limited cognition, and low
intellectual quotient. However, midway through the
interrogation and prior to the confession, the Court
found the accused experienced a “psychological
disintegration, and was no longer able to resist or
exercise his free choice to speak or remain silent”; at
this point the accused no longer possessed an operating
mind. The confession was held to be inadmissible and a
jury acquitted the accused. The Crown appealed the
trial judge’s decision to the Quebec Court of Appeal.
At the heart of the appeal was the scope of police
83

persuasion in breaking a person’s silence after they
have chosen to remain silent.

Common Law Voluntariness (the Crown’s Burden)
It has long been recognized that a statement obtained
by the police that is not voluntary, i.e. induced through
promises or threats, is inadmissible under the common
law. More recently, an emphasis has also been placed on
the “mental state” of the suspect resulting from the
circumstances under which the statement was made
which may create “an atmosphere of oppression or
intimidation” even though no promises or threats are
made. In prescribing meaning to the term “oppression”,
Proulx J.A. for the unanimous Court of Appeal stated:
“Oppression” should be understood as anything which tends
to undermine or which does in fact undermine the
voluntary nature required of a “voluntary” confession. The
circumstances surrounding an interrogation, including the
time, date and length, the frequency of interrogations, the
rest time granted to the subject, feeding and personality
of the subject, all constitute elements which may be taken
into consideration in determining whether or not
oppression exists. (footnotes omitted)

The onus on proving beyond a reasonable doubt that a
statement is voluntary rests with the Crown who seeks
to introduce it. Where a statement is not proven to be
voluntary, the confessions rule demands its exclusion.

Charter (the Accused’s Burden)
With all Charter rights, the onus on proving a violation
on a balance of probabilities rests with the accused.
Although section 24(2) of the Charter provides a
remedy for exclusion, it is not automatic like a breach
of the confessions rule. Where a person has made a
choice not to make a statement, the police are not
entitled to use their superior power to override the
person's will and negate the person's choice. However,
evidence acquired from a suspect will only amount to a
s.7 violation if the method used by the police infringed
the right to choose to remain silent. Police persuasion,
short of denying the suspect the right to choose or
depriving them of an operating mind, does not breach
the right to silence. In providing some pragmatic
guidelines, the Court of Appeal outlined the following
principles in defining the scope of the police power of
persuasion in convincing a person to confess to a crime
despite having indicated an intention to remain silent:

R. v. Bernshaw (1995) 95 CCC (3d) 193 (SCC)

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February 2002

18

• Police officers are entitled to attempt to obtain
confessions during an investigation not withstanding an
expressed intent to remain silent
• When a person raises their right to silence it cannot
be ignored and the police cannot pursue action as if
the person had waived their right
• Is assessing whether a confession is voluntary both
subjective and objective factors must be examined
• Police officers cannot use their superior power as
representatives of the state to override the
detainee’s will thereby negating their choice to speak.
The police cannot “abuse [the right to silence] by
ignoring the will of the suspect and denying [them the]
right to make a choice”.
• If a detainee exerts their right to counsel under
s.10(b) of the Charter, the interrogation must be
suspended until the person has been afforded a
reasonable opportunity to retain and instruct counsel.
In this case, the accused had clearly stated on four
occasions within a short period of time that he wished to
“put an end to the interrogation” and consult his lawyer;
there was no vagueness about the intent expressed by
the accused to end the interrogation. In combination
with the accused’s limited cognitive and intellectual
capacity, the ongoing interrogation breached the
accused’s right to silence and justified exclusion of the
statement under s.24(2) of the Charter. Having found
the statement inadmissible under the Charter it was not
necessary for the Appeal Court to determine if it was
involuntary. However, if it had to rule on voluntariness,
the Court would have found the statement was obtained
in the circumstances contrary to the confessions rule.

COURT ORDERED APOLOGY
UNREASONABLE

The appeal Court found an apology to be “entirely
subjective” and it would be fruitless and not a genuine
expression of remorse if mandated by a court. The
conditional sentence was varied to reflect the Court’s
judgment on this condition.
Complete case available at www.ontariocourts.on.ca.

ONTARIO’s HIGH COURT
EXAMINES POWER OF ARREST
R. v. Asante-Mensah,
(2001) Docket:C24828/C25026 (OntCA)
The Ontario Court of Appeal recently
examined a citizen’s powers of arrest.
In this case, the accused had earlier
been acquitted of resisting arrest
when an airport ground inspector attempted to arrest
the accused under Ontario’s provincial Trespass to
Property Act. The trial judge held that the inspectors,
who were merely civilians and not peace officers, were
not entitled to use force to effect the arrest and the
accused was therefore entitled to resist. Ontario’s
highest Court granted the Crown’s appeal and entered a
conviction on the resist charge. In its lengthy judgment,
the Court made the following comments of interest:
•

•

R. v. Pine,
(2002) Docket:C36357 (OntCA)

•

The Ontario Court of Appeal ruled a
court ordered apology imposed as
part of a conditional sentence for a
sexual assault was unreasonable. The
condition read as follows:

•

The accused shall, with the assistance of his conditional
sentence supervisor, write a letter of apology to [the
victim] admitting his wrong, and apologizing for the harm
done to her.

•

•

Volume 2 Issue 2
February 2002

“the citizen’s power of arrest preceded that of the
law enforcement officer. The latter is a species of
the former, not the reverse. It follows that it is not
appropriate to treat a citizen’s power to arrest as
exceptional or as a partial derivative of the powers
possessed by peace officers”
“the right to use reasonable force is, in the eyes of
the common law, simply part and parcel of the right
to make an arrest”
“it is well accepted in Canada that a police officer
has the right to use reasonable force to effect an
arrest”
“s.25 of the Criminal Code does not confer powers
upon police officers or others, but rather shields
them from civil or criminal prosecution if they act
on reasonable and probable grounds in the exercise
of their authority and use reasonable force for that
purpose.”
“[s.25 of the Criminal Code] serves…as a “shield” and
not as a “sword”, and accordingly does not represent
a legislative attempt to deal exhaustively with the
use of force by those conducting arrests”
“at common law, an arrest does not end with the
initial apprehension of the suspect. A private person

19

who effects an arrest without warrant is obliged to
turn the person arrested over to the authorities to
be dealt with according to law. The purpose of an
arrest is to ensure the party arrested is brought to
justice, and the common law defines arrest in terms
of a continuing act, not just the initial apprehension
and assertion of control”
Complete case available at www.ontariocourts.on.ca.

DRUNK ARREST DOES NOT
INVALIDATE SUBSEQUENT
CRIMINAL CHARGES
R. v. Campbell, 2001 PESCTD 77
Police arrested the accused after
they were called to a restaurant to
remove a male patron from the bar.
After making some initial inquiries,
police found the accused sitting on the floor in the
hallway outside the women’s bathroom. She appeared
extremely intoxicated to the arresting officer and was
unresponsive to his requests for her to stand. The
officer arrested the accused under Prince Edward
Island’s Liquor Control Act for being “drunk in a public
place”. The accused was screaming, using foul language,
and physically resisted the officers.
When filling out the information in response to the
incident the officer charged the accused with causing a
disturbance while being drunk contrary to s.175(1)(a)(ii),
causing a disturbance by screaming and using obscene
language contrary to s.175(1)(a)(i), and obstructing a
police officer contrary to s.129 of the Criminal Code.
The accused was not charged with the offence that
formed the basis for the initial arrest, drunk in a public
place.
The accused was convicted at trial of causing a
disturbance by screaming, swearing, and using obscene
language and the obstruction charge, but was acquitted
of the charge of causing a disturbance by being drunk.
She appealed, arguing that the arrest was illegal,
therefore she was lawfully entitled to resist. In
rejecting the appeal, MacDonald C.J.T.D. found the
initial arrest pursuant to the Liquor Control Act valid
and charging her with another offence subsequent to
that arrest did not render the initial arrest invalid. Even
though the accused was acquitted of the charge of
causing a disturbance by being drunk, the validity of the
arrest does not necessarily affect the ensuing criminal

Volume 2 Issue 2
February 2002

charges flowing from and subsequent to the arrest.
Following the lawful arrest, the accused did resist and
obstruct the officers and therefore the conviction
under s.129 of the Code stood. However, the Court
overturned the accused’s conviction for causing a
disturbance because there was no evidence that a
disturbance as contemplated by the section occurred or
that it was the verbal outbursts, and not the police
presence, that generated the curiosity of the onlookers.
Complete case available at www.gov.pe.ca/courts/supreme

CRIMINAL HARASSMENT:
“THREATENING CONDUCT”
DEFINED
R. v. George, 2002 YKCA 2
The accused successfully appealed his
conviction of criminal harassment by
engaging in “threatening conduct”
directed at another person pursuant to
s. 264(2)(d) of the Criminal Code. The Yukon Court of
Appeal (which is made up of justices of B.C.’s Court of
Appeal) reviewed the various case authorities concerning
“threatening conduct” and defined it as follows:
[I]n order to achieve the objective of s. 264, the threat
described in s.264(1)(ii)(d), must amount to “a tool of
intimidation which is designed to instill a sense of fear in
the recipient.” Whether or not this is the case is an
objective question. Here, the question is as follows: did
[the accused] commit an action which could be
characterized as a tool of intimidation and by which he
meant to instill fear in the complainant? (emphasis added)

And further:
Instilling a sense of something undesirable to come is
indeed engaging in an act designed to instill a sense of
fear. Intimidation may occur as a result of restraining a
person’s ability to act.

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

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Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
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