IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.

BC’s 2017 ILLICIT DRUG OVERDOSE STATS RELEASED
The Office of BC’s Chief Coroner has announced the 2017 statistics for illicit drug overdose deaths in the
province. Last year there were 1,422 overdose deaths, almost a 43% increase over the same period in
2016. Moreover, the report attributes Fentanyl laced drugs as accounting for the increase in deaths. In
April 2017 alone, there were 151 deaths.

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2016 Deaths
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Be Smart & Stay Safe

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Volume 18 Issue 1

Volume 18 Issue 1 - January/February 2018

Highlights In This Issue

Unless otherwise noted all articles are authored by
Mike Novakowski, MA, LLM. The articles contained
herein are provided for information purposes only
and are not to be construed as legal or other
professional advice. The opinions expressed herein
are not necessarily the opinions of the Justice
Institute of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to this
newsletter.

What’s New For Police In The Library

3

Fleeing From Accident To Avoid Stolen Auto Charge Still
Hit & Run

4

Officer’s Comments Did Not Denigrate Counsel

5

Reasonable Grounds Not To Be Determined In ‘Legal
Laboratory’

7

Accused Either Has Standing Or Not

10

Standard Caution Question Breached Police Duty To
Hold-Off

13

External Learning Opportunities

15

You Are Not Alone

16

‘In Service: 10-8’ Sign Up Now

17

JIBC Police Academy

Illicit Drug Overdose Deaths in 2017

18

See Course List here.

Opioid Awareness in Canada

21

Desire For Privacy Different Than Expectation Of
Privacy

22

Be The One

23

National Library of Canada
Cataloguing in Publication
Data
Main entry under title:
In service: 10-8. -- Vol. 1, no. 1 (June 2001)
Monthly
Title from caption.
“A newsletter devoted to operational police
officers across British Columbia.”
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of
British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten-eight.

Upcoming Courses
Advanced Police Training
Advanced training provides opportunities for skill
development and career enhancement for police
officers. Training is offered in the areas of
investigation, patrol operations and leadership for
in-service municipal and RCMP police officers.

“In Service: 10-8” is
now in its 18th year of
publication. We
salute all of our
readers and thank
them for all that they
do in maintaining
public safety is this
great nation.
Note-able Quote
“Vision without action is hallucination.
Action without vision is random activity.”

PAGE 2

Unknown

Volume 18 Issue 1 - January/February 2018
The discussion book: 50 great ways to get people
talking.
Stephen D. Brookfield and Stephen Preskill.
San Francisco, CA: John Wiley & Sons, 2016.
LC 6519 B75 2016

WHAT’S NEW FOR POLICE IN
THE LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
recent acquisitions which may be of interest to
police.

The fearless world of professional safety in the
21st century.
Scott Gesinger.
Abingdon, Oxon; New York, NY: Routledge, 2018.
T 55 G47 2018

Co-occurring mental illness and substance use
disorders: a guide to diagnosis and treatment.
edited by Jonathan D. Avery, John W. Barnhill.
Arlington, VA: American Psychiatric Association
Publishing, 2018.
RC 564.68 C66 2018

The heart of coaching: using transformational
coaching to create a high-performance coaching
culture.
Thomas G. Crane with Lerissa Patrick.
San Diego, CA: FTA Press, 2017.
HF 5549.5 C53 C69 2017

Collecting qualitative data: a practical guide to
textual, media and virtual techniques.
Virginia Braun, Victoria Clarke, Debra Gray.
Cambridge, UK; New York, NY: Cambridge
University Press, 2017.
H 62 B715 2017

In command of guardians: executive servant
leadership for the community of responders.
Eric J. Russell; foreword by Roger E. Broomé.
Cham, Switzerland: Springer, 2017.
HM 1261 R87 2017

Critical inquiries for social justice in mental
health.
edited by Marina Morrow and Lorraine Halinka
Malcoe.
Toronto; Buffalo; London: University of Toronto
Press, 2017.
RA 790.5 C75 2017
DBT skills training manual.
Marsha M. Linehan.
New York, NY: The Guilford Press, 2015.
RC 569.5 B67 L563 2015
Deception in the digital age: exploiting and
defending human targets through computermediated communications.
Cameron H. Malin, Terry Gudaitis, Thomas J. Holt,
Max Kilger.
London; San Diego: Elsevier: Academic Press, 2017.
HV 8079 C65 M25 2017

Managing public safety technology: deploying
systems in police, courts, corrections, and fire
organizations.
Jeffrey A. Rose, Donald C. Lacher.
New York: Routledge, Taylor & Francis Group, 2017.
HV 675 R67 2017
The ostrich paradox: why we underprepare for
disasters.
Robert Meyer and Howard Kunreuther.
Philadelphia, PA: Wharton Digital Press, 2017.
HD 49 M47 2017
Post-traumatic stress.
Stephen Regel, Centre for Trauma, Resilience and
Growth, Nottinghamshire Healthcare NHS
Foundation Trust and School of Education, University
of Nottingham, UK, Stephen Joseph, Centre for
Trauma, Resilience and Growth, Nottinghamshire
Healthcare NHS Foundation Trust and School of
Education, University of Nottingham, UK.
Oxford, UK: Oxford University Press, 2017.
RC 552 P67 R44 2017

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Volume 18 Issue 1 - January/February 2018

FLEEING FROM ACCIDENT TO
AVOID STOLEN AUTO CHARGE
STILL HIT & RUN
R. v. Seipp, 2018 SCC 01

BY THE BOOK:
Criminal Code

Someone stole a car and other items
during a break-in. The victim of the
break-in drove around the
neighbourhood in search of his stolen
car. He saw the accused driving it,
caught up to the car and tried to overtake it in a
roundabout. The two vehicles collided and the
accused fled the scene without providing either his
name or address. Along with several offences
related to the break-in, the accused was charged
with failure to stop and provide his name and
address at the scene of an accident under s. 252(1)
of the Criminal Code.

Failure to stop at scene of accident
s. 252 (1) Every person commits an offence
who has the care, charge or control of a
vehicle, vessel or aircraft that is involved in
an accident with
(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another
person,
and with intent to escape civil or criminal liability fails to
stop the vehicle, vessel or, if possible, the aircraft, give his
or her name and address and, where any person has been
injured or appears to require assistance, offer assistance.

British Columbia Provincial Court
The accused denied breaking into the
home. Although he admitted to driving
the car, he claimed that a friend of his
unexpectedly stopped by his house and
invited him to drive around in the car she had. He
said he dropped his friend off and continued
joyriding until the accident. He also testified that he
fled from the collision because he suspected the
car was stolen and therefore did not want to be
present when the police arrived. The accused was
nevertheless convicted on the hit and run charge
despite the judge finding he did not cause the
accident. He was also convicted of possessing a
stolen vehicle, fraud and using a stolen debit card.

British Columbia Court of Appeal
The accused appealed only his
hit and run conviction on the
basis that an essential element
of the hit and run charge
required proof of “intent to escape criminal or civil
liability.” In his view, the proper interpretation of
“escape civil or criminal liability” is that the intent
must relate to avoiding liability in connection with
the cause of the accident rather than any liability
arising from the general operation of a motor

vehicle. In this case, the accused testified he fled
because he did not want to be found with a stolen
vehicle. Since the trial judge concluded that his
driving was not the cause of the accident, the
accused argued he did not leave the scene to
escape civil or criminal liability in relation to the
accident.
The Crown submitted that the intention to escape
civil or criminal liability must be related to or
substantially connected to the accident. In the
Crown’s opinion, the accused fled the scene to
evade liability for driving a stolen car at the time of
the accident. Although his manner of driving did
not cause the accident such that he could be held
liable for any injuries, his use of the stolen car was
a factual cause of the accident. This, the Crown
contended, was a sufficient link between the
liability he sought to avoid and the collision to
establish the mens rea for hit and run.
The Court of Appeal found flight to avoid criminal
liability for driving a vehicle knowing it was stolen
also fit within the scale of liability connected to the
accident. “The object of the Code offence is to
provide a penal incentive for a driver who is
involved in an accident, regardless of whether they

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Volume 18 Issue 1 - January/February 2018

“The evidence on which [the accused] relies is that he fled the scene to avoid criminal liability for
possession of a stolen vehicle. This is not evidence to the contrary. Rather, it is evidence that [the
accused] intended to avoid criminal or civil liability from his care, charge, or control of the vehicle
involved in the accident. Such an intent falls within the ambit of the mens rea established by the
expression ‘intent to escape civil or criminal liability’ in s. 252(1).”
The evidence on which [the accused] relies is
that he fled the scene to avoid criminal
liability for possession of a stolen vehicle. This
is not evidence to the contrary. Rather, it is
evidence that [the accused] intended to avoid
criminal or civil liability from his care, charge,
or control of the vehicle involved in the
accident. Such an intent falls within the ambit
of the mens rea established by the expression
“intent to escape civil or criminal liability” in
s. 252(1).

are at fault, to remain at the scene, provide their
name and address, and offer assistance if another
person appears to be injured or in need of
assistance,” said Justice Bennett. “The liability a
driver seeks to evade is not narrowly construed as
solely arising from the consequences of the
accident itself, but must also encompass offences
connected to the driving, such as impaired driving,
driving while suspended, criminal negligence, and
dangerous driving.”
In this case, “[the accused] did not want to be
identified as the driver of the car, as he was
knowingly in possession of a stolen automobile,
and was driving it at the time he was involved in
the accident,” said Justice Bennett. “His flight from
the scene was to avoid criminal liability in
connection with a vehicle he was driving at the
time of the accident.” So, even if the accused’s
explanation that he fled the scene to avoid being
found in a stolen vehicle was accepted, the
presumption of intent would not have been
rebutted. The accused’s appeal was dismissed and
his conviction was upheld.

Supreme Court of Canada
A nine member panel of
the Supreme Court
rejected a further appeal
by the accused. In a
short oral judgement,
Chief Justice Wagner, speaking for the full court,
stated:
[The accused] had control of a vehicle involved
in an accident. He fled the scene without
providing his name or address. In the absence
of evidence to the contrary, this was proof of
the requisite intent for the offence.

The accused’s appeal was dismissed.
Complete case available at www.scc-csc.ca

Editor’s note: Additional facts taken from R. v.
Seipp, 2015 BCCA 54

OFFICER’s COMMENTS DID NOT
DENIGRATE COUNSEL
R. v. C.J.J., 2018 ABCA 7
After a stepfather found
inappropriate text messages from the
accused on his stepdaughter’s phone
(victim 1), police were called. The
accused was arrested by police and
interviewed. The detective also had limited
information about a conversation between the
accused and another friend of victim 1. The
accused was told of the charges related to victim 1
only. He was not told he would be questioned
about communications with anyone else. During
the lengthy interview the police focussed on the
allegations involving victim 1. However, the
accused was also asked six questions about victim
1 ’s f r i e n d s , i n c l u d i n g w h e t h e r h e h a d
communicated with her friends by phone and what
he would have texted them. He confirmed he
communicated with one friend but otherwise said

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Volume 18 Issue 1 - January/February 2018

he had no recollection. The detective also
acknowledged during the interview that the
accused had spoken to a lawyer and that his lawyer
told him not to say anything. The detective also
made a few comments about the accused’s lawyer’s
advice:
•

•

•

•

“And I understand that. I fully respect that. But
I mean I don’t know what else you would
expect them to say”.
“Okay, but at the same time that person’s –
that individual offering that advice isn’t sitting
in your chair with you currently, right”?
“I’m just going to remind you … that your
lawyer’s not the one that’s sitting in this chair,
facing these charges right now, okay? So if
there’s a way for you to explain this to me, I’m
a reasonable guy, okay? There’s nothing that
says you have to walk out of here being
charged with these offences”.
In response to a comment by the accused that
the communications can be explained, and his
lawyer will have the details: “well it’s
unfortunate that we have to spend – that
you’re going to have to spend that kind of
money to, ah, get the truth out. But, hey, that’s
– that’s your choice not mine”.

Eight days later the detective received substantially
more information about the accused’s interactions
with two more girls, friends of victim 1. Then, about
two months later, the accused was arrested on
offences related to the other two girls. This
prompted several luring and sex related charges
involving victim 1 and her two friends. They all
between the ages of 13 and 15 years old.

Alberta Court of Queen’s Bench
The accused argued that his statement
was not admissible as evidence because
the police breached his ss. 10(a) and (b)
Charter rights. First, he was not aware of
his full jeopardy. The police had failed to inform
him of all the reasons for his detention as it related
to friends of victim 1. Second, the detective
denigrated his lawyer’s advice such that it
amounted to a s. 10(b) breach.

The judge, however, admitted the accused’s
statement. She found the focus of the initial
interview was on the serious charges related to the
accused’s involvement with victim 1. Although a
few questions were asked about contact with other
friends, this line of questioning was dropped after
the accused admitted to contact but could not
remember the details. Nor was the accused
charged with any offences related to those friends
until after further investigation some months later.
As for the accused’s characterization that the
detective’s statements were designed to undermine
the accused’s confidence in and relationship with
his counsel, the judge found there was no belittling
of or denigration of the accused’s lawyer. In the
judge’s view, the detective was simply pointing out
that the lawyer was not the one facing questions
and that the detective was simply seeking the
accused’s side of the story. She concluded there
was no evidence that these few comments did or
would undermine the accused’s confidence in his
lawyer. The accused was convicted of several
counts of luring and other sex related offences.

Alberta Court of Appeal
Among other things, the
accused again argued that his
rights under ss. 10(a) and (b) of
the Charter had been
breached. He contended that his statement to
police should not have been admitted as evidence
at trial. In his view, the investigator failed to inform
him of all the reasons for his detention and the
scope of his jeopardy, and failed to advise him of
his right to counsel a second time when the
investigation switched to a different offence. As
well, he submitted that the interviewer breached
his s. 10(b) rights by denigrating his lawyer’s advice.

Jeopardy
The Court of Appeal found the trial judge did not
err in finding the accused’s s. 10(a) and (b) rights
were not breached. The Appeal Court first noted:

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Volume 18 Issue 1 - January/February 2018

“A change in the accused’s jeopardy arises where the investigation takes a new and more serious
turn as events unfold, and the advice of counsel may no longer be adequate to the actual
jeopardy that the accused faces. In such circumstances, the detainee must be given a further
opportunity to consult with counsel and obtain advice on the new situation.”
A change in the accused’s jeopardy arises
where the investigation takes a new and more
serious turn as events unfold, and the advice of
counsel may no longer be adequate to the
actual jeopardy that the accused faces. In such
circumstances, the detainee must be given a
further opportunity to consult with counsel
and obtain advice on the new situation.
[reference omitted, para. 24]

However, the Court of Appeal recognized that “not
every exploratory question that touches on a
different offence gives rise to a change in jeopardy
that will require the police to reiterate an
accused’s right to counsel.” As for these
circumstances, the initial interview dealt almost
exclusively with the accused’s relationship with
victim 1. “The limited questioning regarding her
friends was not explored in the initial interview,”
said the Court of Appeal. “Charges with respect to
the other complainants were laid two months
later. This was not a change in jeopardy that
warranted a reiteration of the [accused’s] right to
counsel.” Thus, there was no s. 10(b) Charter
violation.

Denigration of Counsel
In R. v. Burlingham, [1995] 2 SCR 206, the
Supreme Court of Canada stated:
… s. 10(b) specifically prohibits the police…
from belittling an accused’s lawyer with the
express goal or effect of undermining the
accused’s confidence in and relationship with
defence counsel. It makes no sense for s 10(b)
of the Charter to provide for the right to retain
and instruct counsel if law enforcement
authorities are able to undermine either an
accused’s confidence in his or her lawyer or
the solicitor-client relationship.

In this case, the Court of Appeal noted that the
comments in Burlington said to denigrate the

integrity of defence counsel were described as
“repeated disparaging comments made about
defence counsel’s loyalty, commitment, availability,
as well as the amount of his legal fees”. But here,
the trial found that the comments made by the
detective did not rise to the same level of
denigrating counsel so as to constitute a breach of
the accused’s s. 10 rights. The trial judge did not err
in rejecting the accused’s characterization that the
detective’s statements were designed to undermine
the accused’s confidence in and relationship with
his counsel.
The accused’s appeal was dismissed.
Complete case available at www.canlii.org

REASONABLE GROUNDS NOT
TO BE DETERMINED IN ‘LEGAL
LABORATORY’
R. v. Bui, 2018 ABCA 62
Two confidential informants told a
police officer that an Asian male,
larger in stature, was dealing cocaine.
Both informants provided a
description of the suspect’s car (a Nissan Ultima)
and license plate number. Though the officer relied
mainly on the informants’ handlers in assessing the
reliability of the information, he knew that both
informants were registered with this police
department and, therefore, had undergone
background checks to exclude individuals with a
history of treachery or lying to police.
The officer ran the license plate number through
the motor vehicle database. The license plate
matched a 2012 white Nissan Altima registered to
the accused. The database also provided the
accused’s address and a general physical
description of him, which confirmed the accused

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Volume 18 Issue 1 - January/February 2018

was of Asian descent. Over a four day period, two
notable transactions were observed while the
police monitored the accused’s car and address.
On the first day, the accused drove directly from his
residence to a parking lot where an individual
jogged up to the car and entered. A minute later,
the individual exited the car and jogged to a nearby
apartment building. The accused immediately
drove away and returned to his residence. On the
last day of surveillance, a very similar interaction
occurred. The accused again drove directly from his
residence to the same location. Upon arrival, an
individual entered the car and interacted with the
accused for about 30 seconds before returning to
the building from which he came.
On this second occasion, the officer directed the
accused’s arrest. A search of his vehicle upon arrest
revealed four packages of powdered cocaine, four
packages of crack cocaine, two cell phones, and
$830 cash. No other drug paraphernalia was found
in the car. Police then secured and executed a
search warrant at the accused’s residence where
significant quantities of cocaine and paraphernalia
for wholesale trafficking was found.

BY THE BOOK:
Criminal Code

Arrest without warrant by peace
officer
s. 495 (1) A peace officer may arrest without
warrant
(a) a person who has committed an indictable
offence or who, on reasonable grounds, he believes has
committed or is about to commit an indictable offence...

And, even though the information did not expressly
mention that a lack of drug paraphernalia found in
the accused's vehicle was a reason to suspect that
evidence of a drug crime would be found in the
accused’s home, the judge concluded that he was
entitled to take into account the reasonable
inferences available from the evidence. There were
no Charter breaches and the accused was
convicted of possessing cocaine for the purpose of
trafficking and possessing proceeds of crime.

Alberta Court of Appeal

Alberta Court of Queen’s Bench
The judge found that s. 495(1)(a) of the
Criminal Code authorizes an arrest as
long as the arresting officer subjectively
believes there are reasonable and
probable grounds on which to base the arrest and
those grounds are justifiable from an objective
point of view. The judge, in assessing the grounds
for arrest, concluded that the confidential informant
information, combined with the surveillance
observations and the officer’s extensive experience,
was sufficient to ground the objective
reasonableness for his subjective belief.
As for the search warrant of the accused’s
residence, the judge found the authorizing justice
could have issued it. There were no inaccuracies,
omissions, misleading statements or inappropriate
inferences made by the affiant. The information
about the informants addressed the currency and
reliability of their tips, and the ITO noted where
specific information was independently verifiable.

The accused argued that the
arresting officer did not have
reasonable and probable
grounds for arresting him.
Further, the evidence discovered in the car upon
arrest, if excised from the information to obtain the
warrant, would result in insufficient evidence to
support the search warrant. In his opinion, his rights
under ss. 8 (search and seizure) and 9 (arbitrary
detention) of the Charter were breached.

Arrest
The accused conceded that the officer directing the
arrest subjectively had the necessary grounds.
However, he argued that these grounds were not
objectively reasonable. In his opinion, the police
observations of the two suspected transactions were
insufficient since the police never actually observed
any hand-to-hand exchange of drugs. He claimed
that the officer did not independently confirm the
informants’ reliability and did not have

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Volume 18 Issue 1 - January/February 2018

“A court assessing the lawfulness of a warrantless arrest must not apply the governing
principles as if they were constructed for application in a legal laboratory.”
confirmation that the accused was the Asian male
to whom the informants referred. As such, the
informants’ information could not be used to
bolster the objective reasonableness of the grounds
for arrest.
The Court of Appeal, however, disagreed. “A court
assessing the lawfulness of a warrantless arrest
must not apply the governing principles as if they
were constructed for application in a legal
laboratory,” said the Court of Appeal. “In
evaluating the lawfulness of an arrest under s.
495(1)(a) of the Criminal Code a court must ask if
there are objectively verifiable facts that would
have caused a reasonable person with the training
and experience of the arrestor and who was aware
of the information that caused the officer to make
the arrest to conclude that the likelihood the
arrestee committed a specific indictable offence
was approaching the more-likely-than-not point on
the scale of certainty.”
In this case, an objective observer in the officer’s
shoes would have considered:
•

•

•
•

•

Two separate informants had reported that an
Asian male driving a Nissan Altima with a
specific license plate was selling cocaine;
These informants were registered with the
police – meaning they had undergone
background checks to exclude individuals
with a history of treachery or lying to police –
and were considered credible by the two
experienced officers acting as their handlers;
The license plate number provided by the
informants matched the described car;
The accused was the registered owner of this
car and broadly matched the physical
description provided by the informants;
On two occasions, officers observed the
accused briefly interact with another person in

Officer’s Experience
The officer was an experienced police officer with over 10
years of experience in various roles tied to drug
enforcement. He was a member of the Drug and Gang
Enforcement Team and had received training, certification,
and experience in covert surveillance and undercover
operations for drug investigations. He had observed how
drug transactions occur in real-time both as an operator
making drug purchases and during surveillance of confirmed
drug transactions.

•

a manner consistent with the way in which the
officer had interacted with drug sellers when
working as an undercover operative; and
The officer’s knowledge, training and
experience were also significant factors.

“Noncriminal aspects of an informants’
i n f o r m a t i o n wh i ch a r e c o r r o b o ra t e d by
observation can be considered as part of ‘the
totality of the circumstances’ forming reasonable
grounds,” said the Appeal Court. “Further, the
police need not ‘confirm each detail in an
informant’s tip so long as the sequence of events
actually observed conforms sufficiently to the
anticipated pattern to remove the possibility of
innocent coincidence’. In this case, the
confidential informants’ information combined
with the surveillance observations of the two
transactions – which [the officer] believed to be
drug transactions based on his significant prior
experience – removed the possibility of innocent
coincidence.”
Moreover, this was not a case where the police
were dealing with a single anonymous informant.
Rather, the information came from two known
informants, both of whom were registered with the
police. As well, there was evidence of the

“Noncriminal aspects of an informants’ information which are corroborated by
observation can be considered as part of ‘the totality of the circumstances”
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Volume 18 Issue 1 - January/February 2018

ACCUSED EITHER HAS
STANDING, OR NOT

informants’ reliability both from their handlers and
from some corroboration of the information they
provided.
The trial judge made no error in his determination
on the reasonable grounds standard being met. The
totality of the confidential informant information,
surveillance observations and the officer’s
experience satisfied the objective reasonableness of
the officer’s subjective belief.

Search Warrant
The accused also contended that, even if the arrest
was based on reasonable grounds, the
circumstances of the surveillance and the
information to obtain were insufficient to connect
any alleged drug activity to his residence. In his
submission, the lack of drug paraphernalia in his
vehicle was a factor connecting the drug activity to
his residence but it was not mentioned as one of
the affiant’s considerations in the information to
obtain.
The Court of Appeal concluded that the trial judge
applied the proper test in determining whether the
search warrant was properly granted:
The trial judge gave considerable thought to the
defence submission that the evidence only
supported an inference of drug activity
confined to the [accused’s] vehicle. He fairly
characterized the links to the [accused’s]
residence as secondary, but noted the
significance of the [accused] driving directly
from his residence to the location where the
transactions occurred without any intermediate
stops. He observed that, for both transactions,
the same pattern was apparent with the
[accused] leaving his residence, travelling
directly to the same location, and conducting a
brief transaction with an unknown individual.
The trial judge further observed that the
authorizing justice had evidence of the
[accused] regularly parking his vehicle at the
residence and being seen taking items into the
residence. [para. 21]

There were no ss. 8 or 9 Charter violations and the
accused’s appeal was dismissed.

R. v. Vickerson, 2018 BCCA 39
The accused was the target of a police
investigation into drug trafficking. Two
confidential informants told police that
“Conrad” or “JT” (a known nickname
of the accused) was selling drugs from
his house. One of the informants had purchased
drugs from him, and had seen drugs inside his
house. Police conducted surveillance on the
accused’s home over a two month period and
observed a number of people arriving, staying a few
minutes and then leaving. On one occasion, they
observed a truck arrive at the accused's residence
and stop outside. A male from the truck (Mr.
Schnarr) entered the accused’s home, stayed for six
minutes, got back into the truck and it drove away.
The police stopped the truck and arrested its two
occupants including Schnarr, a passenger. When
asked by the arresting officer whether he had any
weapons or drugs on him, Schnarr said he had
drugs hidden in his crotch. Schnarr was
handcuffed, read his Charter rights and transported
to the police station where he was searched. Police
found seven 0.5 gram bags of cocaine. As well,
police searched Schnarr’s mobile phone and found
a series of text messages between Schnarr and “JT”,
along with call logs showing two short
conversations between Schnarr and “JT” in the hour
proceeding Schnarr’s visit to the accused’s
residence.
The information from the confidential informants,
the surveillance, and the evidence from Schnarr’s
arrest provided the grounds for a telewarrant to
search the accused’s home. When the police
executed the search warrant, they arrested the
accused and conducted a search of his person, his
vehicle and his residence. As a result of their
search, the police found cash, cocaine, MDMA,
BZP and TFMPP, plastic baggies, empty pill
capsules, a score sheet, pipes containing
marihuana residue, a marihuana grinder, and glass
pipes.

Complete case available at www.canlii.org

PAGE 10

Volume 18 Issue 1 - January/February 2018

British Columbia Provincial Court
The accused sought a voir dire to
determine the validity of the warrant and
applied to have the evidence excluded.
Among other things, the judge found the
accused did not display a reasonable likelihood
that the evidence from the confidential informants
or the police observations would be excluded.
Thus, there was no need to declare a voir dire
regarding these issues. However, the judge
declared a voir dire with respect to the evidence
obtained through the search of the truck that left
the accused’s residence and was stopped by police.
On this issue, the accused argued that the the
police did not have reasonable grounds to stop the
truck, and arrest and search its occupants. He
contended that the evidence of the seven 0.5 gram
bags of cocaine, and the information on the mobile
phone related to the alias “JT”, was collected in
violation of s. 8 of the Charter and should be
excluded.
The judge found the arrest of Schnarr, the truck’s
occupant, lawful. The police had subjective and
objective reasonable grounds to arrest the
occupants of the truck based on the lead
investigator’s observations of the comings and
goings to the accused’s house during the
investigation, which was informed by her
experience in over 100 CDSA-related
investigations. The seven 0.5-gram bags of cocaine
found on Schnarr as an incident to arrest were
obtained in compliance with s. 8 of the Charter and
were therefore admissible and could be included in
the ITO. And, even if the search of Schnarr was
unlawful, the judge found the accused had no
standing to raise a Charter issue respecting this
evidence.
The text messages and call logs between Schnarr
and the accused, however, were excluded and
expunged from the ITO. In the judge’s view, the
accused retained a privacy interest in the
“electronic communications”, referring to the text
messages and call log information located on
Schnarr’s mobile phone. The judge inferred that the
accused had a subjective expectation of privacy
and found that he had a right to privacy even

though the arrest of Schnarr (the mobile phone’s
owner) was lawful. Nevertheless, the judge ruled
there were sufficient grounds to support the
warrant. Since the warrant was lawful, there was no
need to conduct a s. 24(2) Charter analysis. The
accused was convicted on four counts of
possessing illicit drugs for the purpose of trafficking.

British Columbia Court of Appeal
The accused contended, in
part, that he had standing to
challenge the grounds for the
arrest and search of Schnarr (a
third party) and that any evidence obtained as a
result of the unlawful search should be excluded
under s. 24(2) of the Charter. In his view, the trial
judge erred by determining, after a voir dire, that
the accused did not have standing to challenge the
admissibility of evidence obtained in the
unreasonable search of Schnarr. Furthermore, if the
accused did have standing, he submitted that the
judge erred in finding that the police had
reasonable grounds to stop, arrest, and search
Schnarr and admit into evidence the drugs found.
As well, he asserted that the text messages and call
logs, which the trial judge found were unlawfully
obtained, ought to have led to the exclusion of all
of the evidence under s. 24(2).
The Crown, on the other hand, argued that the
accused had no standing to challenge the arrest
and search of Schnarr, nor the search of the vehicle
he was in. And, even if the accused did have
standing, the Crown suggested that Schnarr’s arrest
and search were lawful anyways. The Crown also
argued that the trial judge erred in excluding the
evidence of the mobile phone text messages found
in Schnarr’s telephone.

Standing
“A person is granted standing to challenge a
search and seizure in a criminal case when they
have a reasonable expectation of privacy,” said
Justice Bennett, writing the unanimous Court of
Appeal decision. “The factual matrix is allimportant when assessing a reasonable expectation
of privacy.” In this case, the accused was

PAGE 11

Volume 18 Issue 1 - January/February 2018

“Either one has standing or not. The standing analysis is founded on a reasonable
expectation of privacy in the thing searched or seized. Standing to challenge the contents
of a mobile phone does not translate into standing to challenge searches or seizures
where there is no expectation of privacy.”
challenging the search of Schnarr and the seizure of
drugs, text messages and call logs pursuant to that
search. He even asserted that he should have been
able to challenge all aspects of the searches as he
had at least “partial standing” based on the search
of the cellphone. But this partial standing notion
was rejected:
Either one has standing or not. The standing
analysis is founded on a reasonable
expectation of privacy in the thing searched or
seized. Standing to challenge the contents of a
mobile phone does not translate into standing
to challenge searches or seizures where there
is no expectation of privacy. [para. 48]

Here, there was nothing to support the accused’s
submission that he had a reasonable expectation of
privacy respecting the search of the vehicle, the
arrest and search of Schnarr or the seizure of drugs
and the mobile phone. The accused was not
present when the vehicle was stopped and
searched, he was not in possession or control of the
vehicle, he did not own the property, nor was there
any evidence he had an attachment to the property.
As for the search of the mobile phone and the
discovery of the text messages, the Court of Appeal
concluded that the trial judge misapplied the law
respecting the privacy interest the sender of a text
message may have in the message in the phone of
its recipient:
The trial judge’s holding that [the accused] had
a reasonable expectation of privacy in text
messages sent to a third party’s mobile phone
is grounded in his reading of Pelucco. In his
voir dire ruling, the trial judge read Pelucco to
“stand for the proposition [sic] the court must
infer that the sender of a message has a
reasonable expectation of privacy” with
respect to messages found in the search of a
third party’s mobile phone, and thus he
excluded the evidence of the text messages
without any further analysis. [para. 51]

Although a majority of the Court of Appeal in R. v.
Pelucco, 2015BCCA 370 found a “a sender will
ordinarily have a reasonable expectation that a
text message will remain private in the hands of its
recipient,” whether a sender of a text message has
a reasonable expectation of privacy in a received
message depends on the totality of the
circumstances. As a result, “Pelucco does not stand
for the proposition that the sender of a text
message always has a reasonable expectation of
privacy in that text message as stored on its
recipient’s mobile phone.” This is consistent, Justice
Bennett noted, with the recent Supreme Court of
Canada decision of R. v. Marakah, 2017 SCC 59
where the majority stated, “depending on the
totality of the circumstances, text messages that
have been sent and received may in some cases be
protected under s. 8.”
Moreover, the holding in Pelucco was inapplicable
to situations where the police conduct a lawful
search. In this case, the trial judge found Schnarr’s
arrest lawful. However, rather than considering
whether the search of the mobile phone was a
lawful search incidental to arrest, he found a
breach simply because the accused had a
reasonable expectation of privacy. Although the
accused had standing to challenge the search of
Schnarr’s mobile phone, the trial judge failed to
consider whether this was a valid search incidental
to arrest. Whether or not the search of Schnarr’s
mobile phone was lawful as an incident to arrest
did not need to be answered. The trial judge
excluded the evidence of the text messages and the
call logs from the ITO based on his misapplication
of Pelucco, a decision that favoured the accused
and therefore did not assist the accused on this
appeal.
The accused’s appeal was dismissed.
Complete case available at www.canlii.org

PAGE 12

Volume 18 Issue 1 - January/February 2018

STANDARD CAUTION
QUESTION BREACHED POLICE
DUTY TO HOLD-OFF
R. v G.T.D., 2018 SCC 7
The accused was arrested for the sexual
assault of his previous intimate partner.
When he was arrested by police, an
officer read the standard caution to him
on the street. The officer informed the accused of
his right to speak with a lawyer, the availability of
free duty counsel, and the option of applying to
Legal Aid:

I am arresting you for sexual assault and breach
of a recognizance. You have the right to retain
and instruct a lawyer without delay. This means
that before we proceed with our investigation,
you may call any lawyer you wish or a lawyer
from a free legal advice service immediately. If
you want to call a lawyer from a free legal
advice service, we will provide you with a
telephone, and you can call a toll free number
for immediate legal advice. If you wish to
contact any other lawyer, a telephone and
telephone books will be provided to you. If you
are charged with an offence, you may apply to
Legal Aid for assistance.
The accused stated he understood and when asked
if he wished to speak to a lawyer, the accused
responded by stating that he wanted to consult
counsel. The police then read a further standard
caution. He was told:

You may be charged with sexual assault and
breach. You are not obliged to say anything
unless you wish to do so, but whatever you say
may be given in evidence. Do you wish to say
anything?
The accused then immediately responded, “Yeah.
Like a boss says I’m raping, I didn’t do because I
was thinking, like, since we are in a relationship,
it’s okay. I didn’t think it would be a raping because
we our two boys together.” The accused was
transported to the police station where he called a
lawyer.

Alberta Provincial Court
The officer testified he read the text of
the two cautions, which had been
provided by his police department, in
accordance with his training. The judge
found there was no Charter breach respecting the
accused’s right to counsel. And, even if there was a
breach, it was minor and the accused’s statement
was nevertheless admissible. The officer acted in
good faith in reading the standard caution, there
was minimal impact on the accused’s rights, and
the admission of this spontaneous and voluntary
statement would not bring the administration of
justice into disrepute. The accused was convicted
of sexual assault.

Alberta Court of Appeal
The accused argued that once
he indicated he wished to
consult counsel, the police
officer had an implementational
duty under the Charter to hold off on any questions
until he was given a chance to do so. In asking the
question, “Do you wish to say anything?”, the
accused asserted the officer breached s. 10(b).
After reviewing the historical context of the police
caution, a majority of the Court of Appeal found
the positive question (“Do you wish to say
anything?”) breached the accused’s right to
counsel. Under s. 10(b), the Court of Appeal
recognized there were three duties imposed on the
police when arresting or detaining an accused:
1. to inform the detainee of their right to retain and
instruct counsel without delay and of the
existence and availability of legal aid and duty
counsel (INFORMATIONAL);
2. if a detainee has indicated a desire to exercise
this right, to provide the detainee with a
reasonable opportunity to exercise the right
(except in urgent and dangerous circumstances)
(IMPLEMENTATIONAL); and
3. to refrain from eliciting evidence from the
detainee until they have had that reasonable
opportunity (except in cases of urgency or
danger) (IMPLEMENTATIONAL).

PAGE 13

Volume 18 Issue 1 - January/February 2018

How the courtroom questioning went
Q: … So you understood that he wanted to speak to a lawyer?
A: Yes, sir.
Q: Which was his right upon detention, right?
A: Yes, sir.
Q: So your obligation was then to take him to a telephone at
the station so he could make a call, right?
A: That’s correct, sir, yes.
Q: Not question him any further, right?
A: That’s correct, sir, and I did not.
Q: Well, you did. You asked him if he wanted to say something.
A: Well, I read the -- the standard caution, sir.
Q: Right. And it concluded with what words, the standard
caution?
A: It concluded with: Do you wish to say anything? ...
Q: So your question, Do you want to say anything, I suggest
was improper in the circumstances. Is that not your
understanding of the law?
A: No, sir. In my experience and -- and by training, this -- the
Charter Right to Counsel is read and then the standard caution
is read, and then the replies are noted. I did not question [the
accused].
Q: Well, you did. You said, Do you want to say anything?
A: Okay.
Q: That’s a question, right?
A: I acknowledge, sir, that that is a question and that is printed
in the standard caution which has been my practice for ten
years to read after the Charter Right to Counsel.
Q: But once the person says they want to speak to a lawyer -… -- what is your obligation at that point? Are you able to
continue questioning him or -A: No, sir.
Q: -- is your obligation to take him to a phone?
A: And I did so, sir, yes. As soon as I took him to the station, he
was given access to a working telephone.
Q: But you did question him before he was given access to a
phone?
A: Okay. Are you asking if I ask -- if I read the standard
caution, which I did.
Q: And then you said, Do you want to say anything?
A: Which is part of the standard caution, sir.
Q: Well, it is a question put to the accused, right?
A: Which is printed here which is -- from my training and my
experience, what I do.

In this case, asking the question (“Do you wish to
say anything?”) after the accused had asserted a
desire to contact counsel breached the third duty to
“refrain from eliciting evidence”. Even though the
officer had no expectation that the accused would
say anything at all and had no intention of
following up if the accused remained silent, the
question nonetheless amounted to a breach. “Once
the detained person asks to speak to counsel, the
implementational duty on the police is to ‘refrain
from eliciting evidence’,” said majority. “If nothing
else, this wording risks prompting an incriminating
response before the accused has had an
opportunity to consult counsel. If this caution is to
be used, the alternative ending ‘Do you
understand?’ is the one that is consistent with the
Charter.” Despite the finding of a Charter breach,
the majority would have admitted the accused’s
statement under s. 24(2). His appeal from
conviction was dismissed.
Justice Veldhuis, in dissent, agreed the
accused’s s. 10(b) right had been
violated. In her view, the open-ended
question (“Do you wish to say
anything?”) breached the police duty to hold off
eliciting evidence. “The officer concluded by
asking the [accused] whether he wanted to say
anything,” said Justice Veldhuis. “Many, if not
most, detainees would treat this concluding
question as the arresting officer’s invitation to
respond to the allegations that led to their arrest.”
She would, however, have excluded the accused’s
statement as evidence, set aside his conviction and
ordered a new trial.

Supreme Court of Canada
The accused again
appealed arguing that
his statement ought to
have been excluded
as evidence. A five
member panel of the Supreme Court of Canada all
agreed that the question (“Do you wish to say
anything?”) breached the accused’s s. 10(b) Charter
right. “The right to counsel under s. 10(b) of the
Charter obliges police to ‘hold off from attempting
to elicit incriminatory evidence from the detainee

PAGE 14

Volume 18 Issue 1 - January/February 2018

“Either one has standing or not. The
standing analysis is founded on a
reasonable expectation of privacy in the
thing searched or seized. Standing to
challenge the contents of a mobile
phone does not translate into standing
to challenge searches or seizures where
there is no expectation of privacy.”

EXTERNAL LEARNING
OPPORTUNITIES

until he or she has had a reasonable opportunity
to reach counsel’,” said Justice Brown in a short
oral judgment. Asking, “Do you wish to say
anything?”, at the conclusion of the standard
caution used by the police after the accused had
already invoked his right to counsel, violated the
police duty to “hold off” because it elicited a
statement from the accused.

11th National Symposium on Tech Crime and
Electronic Evidence
March 2, 2018
Online Replay
Click here.

Courtroom Testimony: A Practical Skills
Workshop for Police and Other Law
Enforcement Professionals
March 2, 2018

The Supreme Court, however, was
divided on whether the breach in this
case warranted the exclusion of the
accused’s statement. Four justices found
the statement should be excluded, substantially for
the reasons of Justice Veldhuis at the Alberta Court
of Appeal. The majority of the Supreme Court
therefore excluded the accused‘s statement,
allowed the accused’s appeal and ordered a new
trial.

In Person and Webcast

Chief Justice Wagner, on the other hand, would
have dismissed the appeal on the basis that the
breach did not warrant the exclusion of the
accused’s statement. In his view, the question was
accompanied by clear information about the
accused’s choice to speak to the police which
attenuated the impact of the state conduct on the
accused’s Charter-protected interests and the
admission of the statement would not bring the
administration of justice into disrepute.

March 29, 2018

Complete case available at www.scc-csc.ca

Editor’s note: Additional facts taken from R. v.
G.T.D., 2017 ABCA 274.

Click here.

11th Annual Intensive Course on Drafting and
Reviewing Search Warrants
March 5, 2018
In Person and Webcast
Click here.

3rd National Symposium on Mental Disorder:
Criminal Justice and Community Solutions
Join a top tier, multi-disciplinary faculty to explore the
transformation of the criminal justice system and
innovative community solutions in relation to mentally ill
offenders.
Online Replay
Click here.

National Symposium on Criminal Sexual
Assault
April 21, 2018
An allegation of sexual assault raises unique challenges for
lawyers, judges and investigators. In recent years, the
justice system’s handling of these cases has come under
sustained scrutiny. Positive outcomes in sexual offence
cases are contingent on good education and best
practices.
In Person and Webcast
Click here.

PAGE 15

Volume 16 Issue 5 - September/October 2016

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PAGE 28

Volume 18 Issue 1 - January/February 2018

“In Service: 10-8”

This “Sign up” link will take you to the free
Subscription Form that only requires an email.

Sign-up Now
Are you interested in regularly receiving the In
Service: 10-8 newsletter by email. You can sign
up by clicking here and then clicking on the
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PAGE 17

Volume 18 Issue 1 - January/February 2018

ILLICT DRUG OVERDOSE
DEATHS IN 2017
The Office of BC’s Chief Coroner has released
statistics for illicit drug overdose deaths in the
province from January 1, 2017 to December 31,
2017. In December there were 99 suspected drug
overdose deaths. This represents a 40% decrease
over the number of deaths occurring in December
2016. This amounts to about three (3) people dying
every day of the month in December.

164

People aged 30-39 were the hardest hit in 2017
with 392 illicit drug overdose deaths followed by
40-49 year-olds at 334 deaths and 50-59 year-olds
at 286 deaths. Vancouver had the most deaths at
358 followed by Surrey (174), Victoria (91),
Kelowna (75), Nanaimo (51) and Abbotsford (40).
Males continue to die at almost a 5:1 ratio
compared to females. In 2017, 1,173 males had
died while there were 249 female deaths.

170
127.5

The 1,422 overdose deaths last year amounted to
more than a 327% over 2013. Moreover, the report
attributes fentanyl laced drugs as accounting for the
increase in deaths.

+40%

1500

Monthly Average
Deaths by Year

99

85
42.5

1125
0
December 2016

December 2017

Despite the December decline in deaths, there
were a total of 1,422 illicit drug overdose deaths in
2017. This is a 43% increase over the same period
last year.

+327%
over
2013

1422

993

750

1500
1200

+43%

1422

518

375
900

993

333

369

119

600

83
28

31

43

0

300
Jan-Dec 2016

2013 2014 2015 2016 2017

Jan-Dec 2017
PAGE 18

Volume 18 Issue 1 - January/February 2018

illicit Drug Overdose Deaths
Daily Average

3.9

4
3

“Private residence” includes residences, driveways,
garages, trailer homes.
“Other residence” includes hotels, motels, rooming
houses, shelters, etc.
“Other inside” includes facilities, occupational sites,
public buildings and businesses.
“Outside” includes vehicles, streets, sidewalks, parks,
wooded areas, campgrounds and parking lots.

2.7

2

1.4

1 0.7
0

The data indicates that most illicit drug overdose
deaths (87.8%) occurred inside while 11.4%
occurred outside. For eleven (11) deaths, the
location was unknown.

0.9

Deaths by location: Jan-Oct 2017

1.0

Private Residence
Other Residence
Other Inside
Outside
Unknown

162 11
55
346

848

2012 2013 2014 2015 2016 2017

234

Vancouver

358
122

Surrey

174
69

Victoria

91

Illicit Drug
Overdose Deaths
by Township with 30 or
more deaths
in 2017

47

Kelowna

75
29

Nanaimo

51

Abbotsford

39

Burnaby

39
41

Kamloops

44
39

49

Langley

30
36

Maple Ridge

27
33

0

2016

52

104
PAGE 19

2017

156

208

260

Volume 18 Issue 1 - January/February 2018

DEATHS SINCE PUBLIC HEALTH
EMERGENCY

90%

In April 2016, BC’s provincial health officer
declared a public health emergency in response to
the rise in drug overdoses and deaths. The number
of overdose deaths in the 21 months preceding the
declaration (Jul 2014-Mar 2016)
totaled 921. The number of deaths
in the 21 months following the
declaration (April 2016-Dec
2017) totaled 2,193. This is
an increase of 138%.

+138%

67%

45%

15%

The top four detected drugs relevant to illicit drug
overdose deaths from 2016 and 2017 were
fentanyl, which was detected in 70.1% of deaths,
cocaine (47.5%), methamphetamine/amphetamine
(33.1%), and heroin (30.7%).

0%

In 2017, fentanyl was detected in 81% (1,156) of
illicit drug overdose deaths. In 2016 fentanyl was
detected in 670 deaths, or 67%.
According to Vancouver Coastal Health, drugs
users at Insite - a supervised injection site - checked
their drugs more than 1,400 times from July 2016
to July 2017. Overall, 80% of the drugs checked
were positive for fentanyl, including 84% of heroin
samples and 65% of non-opiate drugs like crystal
meth and cocaine.

60%

2013

2014

2015

2016

2017

18%

Deaths by gender

Males
Females

82%

Sources:
-Illicit Drug Overdose Deaths in BC - January 1, 2007 to December
31, 2017.
-Fentanyl Detected Illicit Drug Overdose Deaths, January 1, 2012 to
December 31, 2017.
Ministry of Justice, Office of the Chief Coroner. December 11, 2017.

Fentanyl detected deaths by city as a percentage of Illicit Drug Overdose Deaths
89.3%

88.9%

84.6%

75%

29%

25%

TYPES OF DRUGS

90%

81%

Fentanyl detected deaths

78.2%

Vancover

79.9%

Surrey

78.4%

Victoria

Kelowna

81.6%

Nanaimo Abbotsford

PAGE 20

78.0%

Burnaby

79.5%

Kamloops

78.8%

Langley Maple Ridge

OPIOID awareness in Canada
Volume 18 Issue 1 - January/February 2018

Opioids are typically pain medications, mostly available by prescription. Some of
the most commonly known opioids are fentanyl, OxyContin, morphine and codeine.

3 in 10 Canadians aged 18 and over

71%

Did you know?

reported using some form of opioid in the

past
5 years.
Level of
Awareness

1 in 4

by province
or more than
Of those,
have
territory
left-over opioids being stored in the home.

Drugs obtained illegally
or on the street have the
potential to contain

fentanyl.

Very aware

14%

15%

Somewhat
aware

Not at all
aware

Fentanyl is a medication used to relieve pain that is about 100 times

Opioid issue awareness

more potent than morphine

by province

Level of
awareness
Atlantic provinces

Adverse effects
of mixing
opioids with
other
medication

18%
54%
27%

72%

14%
48%

16%

38%

54%

22%

19%

30%

55%

54%

23%

26%

Very aware

33%
22%
52%

50%

18 %

18%

Somewhat aware

26%

10 %
Not at all aware

Not at all
aware

Somewhat
aware

Very
aware

Percentage of Canadians who
agreed they would know how to:
Obtain
Naloxone

I would recognize the signs of an opioid

overdose

28%

51%

22%

Agree

Disagree

Neither agree
or disagree

15%

Administer
Naloxone

10%

Both obtain
and administer
Naloxone

7%

Naloxone is a life-saving medication that can stop or reverse
an opioid overdose, however, the results are temporary

For further information on opioids, please visit the following website:

www.canada.ca/opioids

Source: Survey on Opioid Awareness, 2017

PAGE 17
www.statcan.gc.ca

ISBN: 978-0-660-24451-8
Catalogue number: 11-627-M

Volume 18 Issue 1 - January/February 2018

EYEWITNESS IDENTIFICATION
When considering whether
eyewitness identification of an
accused has been proven, a court will
consider the following factors:
• knowledge of the accused where the person
identified was a stranger or witness;
• whether the circumstances of the identification
are conducive to accurate identification, such as
whether the witness had a clear view, lighting
etc.;
• whether pre-trial identification processes, such as
a photo-lineup, were flawed;
• whether there was other evidence tending to
confirm or support the identification evidence;
and
• whether the witness had a bias. (R. v. O’Keefe,
2018 NLCA 11)

APPEAL COURT HAS NO
JURISDICTION TO STAY DNA
ORDER
British Columbia’s top court has ruled
that it has no power to stay a DNA
order pending the disposition of an
appeal. The accused had been
convicted of aggravated assault and
was sentenced to 18 months’ incarceration. The
sentencing judge also ordered the accused provide
a DNA sample under s. 487.051 of the Criminal
Code because aggravated assault is a primary
designated offence. When the accused filed an
appeal against his conviction and sentence he
wanted the DNA order stayed pending the outcome
of his appeal.
A unanimous British Columbia Court of Appeal,
however, ruled it did not have the jurisdiction to
stay the DNA order since there was no specific
power given to a court to grant the stay requested
in this case. “In my view, a stay of a DNA order
does not constitute the kind of ancillary or
incidental order that the Court is empowered to
make under the Court of Appeal Act,” said Justice

Fisher. “This is a provincial statute that cannot
confer substantive jurisdiction on the Court or on
a single justice in criminal matters.” (R. v. Kaplan,
2018 BCCA 31)

DESIRE FOR PRIVACY
DIFFERENT THAN EXPECTATION
OF PRIVACY
Two accused drug makers obtained
possession of a secluded residential
property by means of an elaborate
fraud. They payed a substantial
premium to ensure there was no
paper trail connecting them to the property. They
then immediately converted the property to a meth
lab. When the police executed a search warrant at
the house, the two accused tried to flee but were
arrested. The house was contaminated and had to
be destroyed.
Both accused tried to have the evidence excluded
at their trial, arguing their rights under s. 8 of the
Charter had been breached. Ontario’s highest
court, however, upheld a trial judge’s ruling that the
accused did not have a reasonable expectation of
privacy in the house and therefore no standing to
argue a s. 8 breach. Their connection to the
property was tenuous. They obtained the house by
fraud and did not use it as a residence. Instead,
they used it as a meth lab. Further, they did not
have the legal right to admit or exclude others. One
of the accused even said that if someone arrived
and insisted on staying and calling the police, he
would have fled.
“‘Expectation’ can be ambiguous between two
meanings, only one of which is relevant to s. 8
analysis,” said the Court of Appeal. “In the first
sense, a person has an expectation of privacy
where he desires privacy and believes it is unlikely,
as a matter of fact, that he will be disturbed. In the
second sense, a person has an expectation of
privacy where she believes she will be undisturbed
because she is entitled to be left undisturbed. In s.
8 jurisprudence, subjective expectation is used in
this latter sense.” (R. v. Van Duong, 2018 ONCA
115)

PAGE 22

Volume 14 Issue 6 - November/December 2014

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