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Justice Institute of British Columbia

POLICE ACADEMY
4180 Weat 4th Avenue, Vancouver, British Columbia, V&R 4J5

ISSUES OF INTEREST
VOLUME NO. 37
Written by John M. Post
November 1990
TABLE OF CONTENTS
Page
"MISLEADING - NONDISCLOSURE" IN APPLICATION
FOR A SEARCH WARRANT CAUSING QUASHING OF SAME
REGINA v. SISMEY BC Court of Appeal, 55 C.C.C. (3d) 281
BODY SEARCH INCONSISTENT WITH REASON FOR ARREST
- ADMISSIBILITY OF EVIDENCE GREFFE v. THE QUEEN Supreme Court of Canada, 55 C.C.C. (3d) 161

1

2

SEARCH AND CRIMINAL ASSAULT RELIEF OF POLICE OFFICER (OR ANYONE) TO SEARCH
A PRISONER LAWFULLY ARRESTED
CLOUTIER v. LANGLOIS Supreme Court of Canada, 53 C.C.C. (3d) 257

5

ADMISSIBILITY OF CONFESSIONS BASED ON VOLUNTARINESS
AND CHARTER CONSIDERATIONS (VOIR DIRE)
REGINA v. BRUNEAU BC Supreme Court, Prince Rupert 12933, May 1990

7

TAKING OF BLOOD FROM AN UNCONSCIOUS DRINKING I DRIVER
SUSPECT - FLAWED SEARCH WARRANT TO SEIZE BLOOD
TAKEN IN HOSPITAL
REGINA v. COCHRANE County Court of Yale - Kelowna CR89/93. July 1990

11

ENTRAPMENT AND CROWN PRIVILEGE REGARDING EVIDENCE
OF SIMULATED INGESTION OF COCAINE BY UNDERCOVER OFFICER
REGINA v. MEUCKON BC Court of Appeal - Vancouver, CA 006779, July 1990
- I -

12

MUST THE PERSON WHO REFUSES TO GIVE A SAMPLE OF
BREATH OFFER HIS/HER REASONABLE EXCUSE
AT THE TIME OF REFUSAL?
REGINA v. OSBORNE The County Court of Vancouver, C.C. 891689 - June 1990

14

THE AGENT PROVOCATEUR AS A "CELL-MATE"
CONSTITUTIONALITY OF THIS INVESTIGATIVE PRACTICE
RIGHTS OF DETAINED PERSON
REGINA v. HEBERT Supreme court of Canada, 57 C.C.C. (3d), June 1990

16

RANDOMLY STOPPING A MOTOR VEHICLE ARBITRARY DETENTION
REGINA v. LADOUCEUR
Supreme Court of Canada. May 1990 [1900] 1 R.C.S. 1257

23

LEGAL TID BITS
CROWN'S CONFLICT OF INTEREST - RELEVANCE OF "BASEBALL BAT"
EVIDENCE IN THE DRUG TRADE
Regina v. Joyal - 55 C.C.C. (3d) 233.

25

PRELIMINARY INVESTIGATIVE QUESTIONS WHEN DOES DETENTION BEGIN?
Regina v. Kay - 53 C.C.C. (3d) 500.

25

CONSTITUTIONALITY OF INTERCEPTING PRIVATE COMMUNICATIONS
WITH CONSENT. UNREASONABLE SEARCH AND SEIZURE
Regina v. Wiggens - 53 C.C.C. (3d) 476

26

AWARENESS OF DIFFICULTY WITH STEERING MECHANISM ACCIDENT
CAUSED WHILE DRIVING NORMALLY CRIMINAL NEGLIGENCE CAUSING
DEATH
RIGHT TO COUNSEL AND AFFORDABILITY POLICE TO INFORM SUSPECT
OF LEGAL AID
Regina v. Brydges - Supreme Court of Canada [1990] 1. S.C.R. 190,
February 1990.

- 11 -

26

27

A SUPERFLUOUS APPEAL
Regina v. Geraghty - BC Court of Appeal, NO CA010262 Vancouver,
April 1990.
CONSTITUTIONAL VALIDITY OF PROVISION THAT CONSENT IS NO
DEFENCE FOR SEXUAL ASSAULT WHERE THE COMPLAINANT IS UNDER
THE AGE OF FOURTEEN AND THE ACCUSED IS MORE THAN THREE YEARS
THE VICTIM'S SENIOR
Regina v. R.S.M. - 57 C.C.C. (3d) 182.

- iii -

28

29

1
"MISLEADING - NONDISCWSURE" IN APPLICATION
FOR A SEARCH WARRANT CAUSING OUASHING OF SAME
REGINA v. SISMEY - BC Court of Appeal, 55 C.C.C. (3d) 281
A police officer attested in an application for a search warrant that:
1.

the accused, according to a 15 year old informer, had drugs in his home;

2.

the accused had, four years ago, been found to be in possession of narcotics; and

3.

according to sources of unknown reliability, the accused was using narcotics.

A search warrant did issue. Execution resulted in evidence and a five count indictment.
During the trial the police officer who swore to the information conceded to know at the time
he attested to the application that the allegations levied four years ago against the accused, had
not resulted in a conviction. The accused had either been acquitted or the proceedings were
stayed.
This non-disclosure was the ground for an unsuccessful petition to the BC Supreme Court to
quash the warrant. Apart from this omission there were sufficient grounds for the Justice of
the Peace acting judicially to issue the warrant. The accused appealed this decision to the BC
Court of Appeal.
The highest Court of BC held also that there was misleading non-disclosure. This court was
unanimous in recognizing search warrants to be judicially issued investigative tools, based on
hearsay evidence. Inadvertent errors in the information or the text of the warrant itself will not
necessarily justify the quashing of the warrant. Said the Court:
" ...... the proper question for the court to ask is whether, if the
erroneous part were to be deleted, the information or warrant
would stand by itself."
In this case nothing needed to be deleted; the information was simply inaccurate. The officiant
(the officer who swore the information) conceded in cross-examination that he knew that the
charges that arose from that incident had failed to result in a conviction. The court concluded
that the information on that point was incomplete but did not find that the omission was
deliberate with the intention of leaving an incorrect impression about the accused and thereby
mislead the judicial officer who issued the warrant. If such was the case, the search warrant
would have to be quashed. Nonetheless, the information was misleading by omission;
sufficiently so that the proper judicial course was to quash the warrant.
Accused's appeal allowed
Search warrant quashed.

2
BODY SEARCH INCONSISTENT WITH REASON FOR ARREST
- ADMISSIBILITY OF EVIDENCE GREFFE v. THE QUEEN - Supreme Court of Canada, 55 C.C.C. (3d) 161
The police had reason to believe that the accused (appellant) was bringing heroin into Canada
on a direct flight from Amsterdam to Calgary. He and his baggage we~e thoroughly searched
but nothing was found. The police officer's evidence had been conflicting about what happened
next, but the trial court concluded that the accused was arrested on a number of outstanding
traffic warrants. He was not informed of his right to counsel and was taken to a hospital where
a doctor found in his rectal canal two condoms with approximately $225,000 worth of heroin.
The evidence was suppressed by the trial judge as: 1. The arrest had been a convenient
artifice; 2. A search of the rectum when arrested for outstanding traffic warrants was
unreasonable; and 3. The accused's right to counsel had been infringed.
The acquittal that followed the exclusion of the evidence was appealed and the Alberta Court
of Appeal1 reversed the verdict and convicted the accused. He then appealed that conviction
to the Supreme Court of Canada.
The Alberta Court of Appeal had found by a majority judgment that the arrest on the traffic
warrants had been a camouflage. It reasoned that the arrest was nonetheless lawful and that
police had also reasonable and probable grounds to believe that the accused was importing a
narcotic. The "right to counsel warning" was to seek release from detention but not to delay
investigation and reasonable searches. The accused had been very much aware of the reason
for the impending search. In terms of the rectal search being the ultimate of intrusion of one's
privacy, the court had reasoned that the accused had profaned his own bodily integrity. Hence,
the violations of the right to be informed of the reason for the arrest and the right to counsel
were not such that suppressing the evidence under the Charter's exclusionary rule {s. 24 (2)}
was called for. The Alberta Court of Appeal gave four reasons for this (two justices concurring
and one dissenting).
1.

The Charter violation~ did not create, or result in, evidence of the accused's guilt;

2.

The admission of the evidence would not negatively reflect on adjudication fairness of
the accused's trial;

3.

There was no reason for the Court to disassociate itself from the conduct of the police;
the search was a consequence of reasonable and probable grounds in believing in the
existence of the offence, and the search did not arise under mere suspicion or capricious
motivation; and

4.

The alternative of the search of the rectum was not realistic. Waiting for the condoms
to be passed naturally, ignored the fact that the unknown quantity of narcotics could
accidentally disseminate and endanger the health of the accused.

See synopsis of reasons for judgment by Alberta Court of Appeal, in Volume 33 of this publication,
page 13.

3

The Alberta court of Appeal found precedents for their reasons, the main one being the
trendsetter of the exclusionary rule2 • It rendered that judgment in February of 1988. In
December of the same year the Supreme Court of Canada ruled on customs searches. 3
Consequently the Customs officers nor the Alberta Court of Appeal had the benefit of those
cases.
In the Colliris case the Supreme court of Canada had held that real evidence (as the condoms
in the Greffe case) not obtained as a result of participation of the accused should rarely be
excluded.
The Crown argued that by applying the Collins test there was no reason for
suppressing the evidence. However, the Supreme Court of Canada found that the prerequisite
reasonable and probable grounds to the search were an issue. One officer testified that on the
basis of confidential information received and background investigation, "I had grounds to
believe that Greffe was going to be in possession of an unknown amount of heroin." That was
inadequate and the Crown had at no point in the trial established that such grounds existed.
What was the information received? What did the background investigation reveal? The
officers believed ..... and in retrospect they were right. That is no proof that there were grounds
for the belief prior to the search and the contraband being found. The reasonable and probable
grounds justifying the search are linked to the reasonableness of the search. The Crown had
failed to satisfy the Court that such grounds existed and the body-cavity search was hardly
conducted as incident to the arrest for traffic warrants. Therefore, the search was unreasonable
and a very serious violation of Greffe's Charter rights, sufficiently grave to be an exception to
the Collin's "real evidence" test. Said the Supreme Court of Canada:
"In balancing the long-term consequences of regularly admitting
the evidence in this case in the light of how it was obtained against
the consequences of excluding it. I conclude that the balance tips
in favour of exclusion."
The Crown failed to show that there were reasonable and probable grounds and consequently
the court had no alternative but to find there were no such grounds. The rectal search was
incident to the traffic warrant arrest. Condoning such a practice would bring considerable
disrepute on the administration of our system of justice reasoned the court. Concluded the
majority of the court:
"Therefore, and not without great hesitation given the manifest
culpability of the appellant, of a crime that I consider heinous, I
conclude that the integrity of our criminal justice system and the
respect owed our Charter are more important than the conviction
of this offender. "
Appeal allowed.
Acquittal was ordered restored.

2

Collins v. The Queen 33 C.C.C. (3), Volume 27, page 1 of this publication.

3

R. v. Simmons & R. v. Jacoy - volume 24, page 20 of this publication.

4

Note:

Seven Justices heard this Greffe's appeal. The above synopsis is of the reasons
for judgment authored by Mr. Justice Lamer, concurred in by three other
Justices. The three remaining Justices dissented and found that considering the
totality of the evidence there was no reason to draw the inference that there did
not exist reasonable and probable grounds or that there was a "pattern of
disregard" in the conduct of the authorities."

5
SEARCH AND CRIMINAL ASSAULTRELIEF OF POLICE OFFICER (OR ANYONE) TO SEARCH
A PRISONER LAWFULLY ARRESTED
CWUTIER v. LANGLOIS - Supreme Court of Canada, 53 C.C.C. (3d) 257
Two constables witnessed Mr. D. Cloutier make an illegal right tum in his car. He was
stopped and ticketed for this by-law infraction. Mr. Cloutier, a lawyer by profession, got into
a heated discussion with the constables. When it was learnt that there was a warrant of
committal outstanding for Mr. Cloutier for the unpaid traffic fine, an arrest was effected and
a body search was conducted while Mr. Cloutier stood spread-eagle with his hands on the hood
of the car. Mr. Cloutier was of the opinion that this "frisk" search amounted to an assault and
he privately prosecuted the officers for this alleged Criminal Code offence.
The information was dismissed upon a trial. This was appealed to the Quebec Court of Appeal
which entered a verdict of guilty. The officers appealed the convictions to the Supreme Court
of Canada, which explored whether police officers at statute or common law have a right to
search a person upon an arrest.
There was no doubt that the arrest was, due to the outstanding warrant, a lawful one - but was
the search of Mr. Cloutier lawful.
The majority of the Quebec Court of Appeal held that the right to search a prisoner "only
exists if the circumstances make such a search necessary to preserve evidence or to prevent
escape or the commission of another offence by the person arrested." As these grounds had
not occurred there was nothing that made any of these things reasonable or probable in the
circumstances. Therefore, the search was a technical assault and a conviction was warranted.
The Supreme Court of Canada (S.C.C.) announced at the outset that this case is the first one,
on the scope of power of the police to search a person who has been lawfully arrested. It also
observed that the parties to this dispute did not raise issues in relation to s. 8 of the Charter in
their respective submissions.
A lengthy review of British, US and interesting Canadian precedents followed on this common
law issue. The S.C.C. concluded that a search of a prisoner lawfully arrested is incident to the
arrest and does not require reasonable and probable grounds that the arrested person has
anything on him that is evidence or something with which he can make good his escape. The
Court considered it unnecessary to consider this aspect at greater length, but recognized the
competing interest of the search incident to an arrest. These interests, of course, were the
objects of law enforcement and the privacy of the arrested person. A "frisk" search is the least
intrusive procedure to meet these objectives. Said the Court:
"A 'frisk' search incident to a lawful arrest reconciles the public
interest in the effective and safe enforcement of the Law on the
one hand, and on the other its interest in ensuring the freedom
and dignity of individuals."

6

However, the common law right to search upon arrest is not unlimited. Three prepositions
can be derived from the common law in consideration of the underlying interests held the

s.c.c.
1.

The power to search is not a duty but a matter of discretion. Where the law "can be
effectively and safely applied without a search" police do not have to conduct a search.
Circumstances determine whether a search meets the underlying objectives.

2.

A search must not be to intimidate, ridicule or pressure an arrested person to make any
admissions. It must be to serve the ends of the administration of justice, such as the
discovery of evidence, objects that may endanger the safety of the officers or anything
with which the person may facilitate his escape.

3.

The manner of the search must not be abusive and free of unnecessary physical or
psychological constraints. Any of these must be proportionate to the objectives sought
and the other circumstances of the situation.

A search outside these objectives are unjustified and unreasonable at common law. When
within these objectives, a search is incapable of amounting to a criminal act such as assault.
The evidence adduced at the constables' trial for assault was that Mr. Cloutier had been
"unpleasant and highly agitated and verbally abusive". Furthermore, there existed a
departmental directive to search all arrested persons for weapons or any object potentially
dangerous to arresting officers. The court held that the directive had absolutely no bearing on
the case,
"since the evidence of the officers who conducted the search was
that they exercised this independent discretion taking into account
all circumstances of this case. "
The officers had simply considered that it was necessary to conduct the frisk search despite
the fact that they had no reasonable and probable grounds that Cloutier had anything on him
he could use as a weapon or .that was evidence.
Held the Supreme Court of Canada:
" ..... the evidence showed to my satisfaction that the police
searched the respondent in pursuit of a valid objective, here,
police safety in making a lawful arrest. "
Note:

The Court's extensive review of the Canadian common law is worthwhile reading
for any law enforcement officer. It contains the right to more intensive searches
(strip and cavity) as well as what may be taken from prisoners. An interesting
point is that in Britain the common law as akin to that of Canada (or perhaps
vice versa) until 1984 when the Police and Criminal Evidence Act came into
effect. Section 32 of that act stipulates that a search of a -lawfully arrested person
is authorized if "the constable has reasonable grounds (note the omission of
"probable") for believing that the arrested person may present a danger to
himself or others "or such grounds for believing" that the person has anything
on him which he might use to escape or which might be evidence."

7

ADMISSIBILITY OF CONFESSIONS BASED ON VOLUNTARINESS
AND CHARTER CONSIDERATIONS CVOIR DIRE)
REGINA v. BRUNEAU - BC Supreme Court, Prince Rupert 12933, May 1990
The following is the evidence adduced at a voir dire during the accused's trial for second
degree murder. The issue was the admissibility of the accused's statements.
The finding of a woman's body caused a five month intensive police investigation and the
arrest of the 29 year old accused.
The accused who had never been in trouble with the law before, still lived with his parents.
He was described by police as pleasant, cooperative and remorseful. He only has a grade 8
education and is nearly illiterate. His vocabulary is limited although he is not considered to be
of low intellect. He requires assistance from his family for nearly all of his personal
administrative needs. He makes a living with various labour type jobs and playing in a rock
band.
The accused was interviewed as a person who may be of assistance to the investigation. He
was shown a composite drawing of the latent suspect but could not identify the person. He did
acknowledge to have known the deceased woman. In the conversation the investigator had said
to the accused that he thought the death was accidental. The officer conceded. The accused
claimed that the officer had also said that if the person involved would come forward he was
not likely to get more than a two or three year sentence.
Upon request the accused attended at the police station about a month after the first
conversation he had with the investigators. He related his where-abouts on the night the
woman met her death. The conversation was taped without his knowledge but with the consent
of the officer.
The investigation subsequently to this interview revealed that the accused was the last person
to have been with the deceased woman and that he had lied about his whereabouts at the time
of the murder.
The investigating officers spotted the accused on the highway one late afternoon on his way
home from work. They stopped and arrested him for the murder of the woman. He was
warned and "chartered" and indicated clearly to understand. On the way to the police station
he inquired, "How did you know it was me?" This was not explained to him at that time. He
was asked to wait until they go to the Detachment where he upon arrival was booked. In the
booking facilities there was a telephone and posters in French and English advising prisoners
of their right to counsel. The accused was then taken to an interview room where after being
"chartered" again, he confessed to have killed the woman. He signed the confession. The
interview was intercepted and recorded in an adjacent room with the consent of one of the
arresting officers. A transcript of this interview was introduced in exidence. At no time had
the accused requested to contact a lawyer nor did the officer specifically ask him if he wanted
to use a telephone for this or any other purpose.

8

An undercover officer was placed in the accused's cell under the guise that he was detained
for a drug offence. The communications between the accused and this officer were also
intercepted with the officer's consent. Due to poor quality of the tape, no transcript was
possible. The accused had told the officer that he accidentally caused the death of the woman
and that he had not intended to kill her. The officer testified that he believed the accused.
The following morning the accused had cooperated in a video taped re-enactment of the events
surrounding the death of this woman.
Evidence showed that at every stage of this investigation that included the accused, he had been
warned and "chartered".
Upon instruction of the watch commander at the Detachment the accused was not to
communicate with anyone without the Commander's permission. The guards were also to
minimize their communications with the accused.
When the accused did not show up at home for dinner at 5:00 p.m., his mother phoned a coworker and was told that he had seen police pick up the accused on the highway. She then
phoned the police but was told that no information could be released neither was she permitted
to visit. She then attended, with her husband, at the police station, but not told of the reason
why the accused was held and she was refused access to him. The family then phoned a
relative in Ottawa who is a member of the RCMP. The relative phoned the watch-commander
but he was also unsuccessful in gaining any pertinent information. Later in the evening the
investigators attended at the accused's home and his brother spoke with them. He was told that
the accused was charged with murder and was given some of the circumstances.
The following morning (the accused was slated to appear in Court at 1:30 p.m. that day) the
brother consulted the family lawyer who made a phone call to the watch-commander and said
he was asked by the family to act for the accused. He was told that the accused was an adult
and had not asked for a lawyer. Consequently he did allow the lawyer to speak.to the accused.
The officer took the position that he would immediately have allowed the accused to speak to
counsel had the request come from the accused. He conceded that he did not want the lawyer
to interfere and advised the accused to remain silent. At least, when it was suggested to the
watch-commander in cross-examination that, that was his reason for not allowing the lawyer to
speak to the accused he replied, "That could be possible, yes ... "
The accused also testified during the voir dire. He said he had understood that whatever he
told police could be used in evidence against him. However, he had not understood his right
to counsel. Police evidence supported the accused's claim that not at anytime was the word
"lawyer" used when he was made aware of this right. His understanding of "counsel" was that
it meant a person who counsels persons for personal problems such as alcoholism and the like.
Defence counsel argued that the statements the accused made when he voluntarily attended at
the police station and the one he made when he arrived at the police detachment after his arrest
were inadmissible due to inducement. The officer's statements that the death was believed to
be accidental and would not result in more than a minimal sentence was the inducement.
He also argued that the warrantless arrests effected on the highway was without reasonable
and probable grounds. In other words, at that stage of their investigation the officers did not
have enough evidence to make the arrest. Consequently he had been arbitrarily detained

9

contrary to section 9 of the Charter. It was also submitted that the accused was aware that
whatever he said could be adduced in evidence, but he was unaware that he could remain
silent. Defence counsel claimed that S. 7 of the Charter (the right to life, liberty and security
of the person) compels police to ensure that a person is aware of that right.
Another Charter argument was, of course, the infringement of the accused's right to counsel.
Firstly as he had not understood the meaning of what he was told about that right and secondly
that the accused was held "incommunicado" by the watch-commander.
Defence counsel also submitted on the basis of the recent Duane decision by the Supreme
Court of Canada4 (as well as Wiggens) that the accused's right to be secure against
unreasonable search and seizure had been infringed when police without his knowledge had
intercepted and recorded his communication during the interviews.
The Court's Rulin~s:
In regard to the inducement, the Court held that the Crown had not proved beyond a reasonable
doubt that what the accused told the officer at their first meeting was not induced by the
officer's statement that he thought the death to be accidental and to result in a light sentence
for whomever was responsible. However, the Court held that the inducement had not tainted
the second pre-arrest interview of the accused at the police station, the time he attended upon
invitation and lied about his where-abouts on the night the death occurred.
The confessions and statements the accused made after being arrested and booked were also
excluded. The accused had only understood that whatever he said could be used as evidence.
He had not understood that he had a right to remain silent. The defence claimed that
authorities are obligated to make a person aware of this right under section 7 of the Charter
(right to life, liberty and security of the person). The Court found that the BC Court of Appeal
settled this issue recently in R. v. Van Den Meersche~. That Court held that the argument that
failure to give the standard police warning advising a person of his right to remain silent had
to be rejected as a breach of section 7 of the Charter. The Court also rejected that the police
did not have the prerequisite grounds to effect the arrest and that therefore the confession was
the result of arbitrary detention. The police did have adequate grounds to arrest the accused,
furthermore, an arrest that falls short of relevant Criminal Code provisions is not consequently
arbitrary. An arbitrary arrest is unlawful, but not all unlawful arrests are necessarily arbitrary.
However, the argument that the accused's right to counsel had been violated was valid. Said
the Court:
"The failure of someone in the accused's situation to equate
counsel with lawyer is perhaps not as implausible as it might at
first seem to persons familiar with the law."
The accused's right was to be made to understand that he had a right to legal assistance. The
burden to prove that (that this was adequately conveyed so there was such understanding) is on
the Crown. Here the Court found that it was "more probable than not" that the accused did not
See Volume 36, page 1 of this publication.
(1989) 74 C.R. (3d) 161.

10

understand the meaning of what he was told by the officers. Therefore, by not asking for
counsel the accused had not explicitly or implied the waiving of his right to counsel. How
could he waive something he did not understand?
Furthermore, the watch commanders' action had caused an incommunicado detention. Even
before the Charter came into effect it was well established that refusing outsiders (family, etc.)
from havin~ access to a detained person is in the absence of legitimate circumstances
unjustified. Concluded the Ontario Court of Appeal in 1957:
"That right ought to be recognized and given effect in all cases,
and care should be exercised by police authorities to see that it is
not wholly disregarded."
The denial of access to the lawyer retained by the family without the knowledge of the accused
did bear considerable weight to hold that the accused's right to counsel had been infringed to
an extent that all statements the accused made after his arrest were excluded from evidence.
Exempted from this exclusion were the statements made to the undercover officer who shared
a cell with the accused and a statement he made to the investigating officer while in the cell
block.
Comment:

The defence arguments that the statements should fail as admissible evidence
due to the taping of the conversations amount to unreasonable search and seizure
were rejected. This Court held that if the practice amounted to unreasonable
search and seizure, the officers had acted in good faith. After all at the time
they did it (1988) the practice was an acceptable means of securing accurate
records. The Supreme Court of Canada did not hold that the practice infringed
a person's right to be secure against unreasonable search and seizure until
January of 1990. 7 However, Crown Counsel advanced an interesting argument.
He submitted that this case was distinct from Duarte and Wiggens. In those
trend-setting cases the accused had spoken to undercover police personnel or an
informer. In this case Bruneau had talked to persons he knew to be police
officers. He therefore had no expectation of any privacy. After all, he conceded
to have understood at the time he had made the statements that they could be
used as evidence against him. This Court declined to rule on this submission as
it was academic. If the Court would reject the argument it would not be capable
of changing its impact on the admissibility of the evidence.
If the
unreasonableness of the seizure had been the only defence the evidence would be
admissible just the same due to the "good faith" doctrine.

Koechlin v. Waugh (1957) 11 D.L.R. (2d) 447
7

R. v. Duarte - Volume 36, page 1 of this publication. Also R. v. Wiggen in this Volume.

11
TAKING OF BLOOD FROM AN UNCONSCIOUS DRINKING I DRIVER
SUSPECT ~ FLAWED SEARCH WARRANT TO SEIZE BLOOD
TAKEN IN HOSPITAL
REGINA v. COCHRANE - County Court of Yale - Kelowna CR89/93. July 1990
In an interior town of BC a car with a driver and one passenger slammed into a bridge. The
passenger was fatally injured and the driver (accused) was taken to hospital in a state of
unconsciousness. Only one officer was on duty and he was at the scene in nine minutes. He
determined who the driver was and he therefore was the logical person to attend at the hospital
in case a demand for a breath or blood sample needed to be made. Officers who were called
out from home to assist took over on the scene. This juggle and the fact that the officer
attended a domestic call on his way to the hospital caused delay. There were consequently only
minutes left of the two hour time period in which a demand could be made when the officer
arrived at the hospital. The accused was then still unconscious and being attended to by a
physician. The officer attempted after the necessary preliminaries to obtain a tele-warrant but
was refused due to the two hour time expiration.
A number of vials of blood were taken from the accused for medical purpose. However, one
grey capped vial was filled with blood for the purpose of determining the accused's
blood/alcohol level. Before this quantity of blood was extracted from the accused the attending
physician was told that the tele-warrant had been refused due "to a glitch or technicality".
Some 8 hours later another Justice of the Peace did issue a search warrant for blood test from
the accused for "hospital purposes". This Justice was not told that the tele-warrant had been
refused or that the grey capped vial that was consequently seized, actually contained blood
taken for forensic purposes.
During a voir dire to determine the admissibility in evidence of the results of the analysis of
this blood during the accused's trial for a drinking/driving related offences, the physician
testified. He said that when a patient is unconscious in circumstances as they were, blood
alcohol level is important to determine whether the patient's condition is due to inebriation or
head injuries. The candid and "well meaning doctor" told the Court of the carnage alcohol
related accidents caused in that community. He candidly admitted that despite it being
medically advantageous, he took the grey capped vial of blood so it would be available to the
police if there was some legal way for them to obtain it. The doctor said to have been
prepared to do whatever was within his power to assist in the prosecution of a drinking driver.
This caused the Court to conclude that the analyzed blood had been taken for forensic rather
than medical reasons and that the warrant used to seize it was flawed.
The Court also held that consequently the accused's right to be secure against unreasonable
search and seizure had been flagrantly infringed and that the evidence of the accused's
blood/alcohol content must be excluded.

12
ENTRAPMENT AND CROWN PRIVILEGE REGARDING EVIDENCE
OF SIMULATED INGESTION OF COCAINE BY UNDERCOVER OFFICER
REGINA v. MEUCKON - BC Court of Appeal - Vancouver, CA 006779, July 1990
In considering the appeal of Mr. Meuckon, our BC Court of Appeal had the opportunity to give
its interpretation of the entrapment decisions8 by the Supreme Court of Canada. In terms of
definition and practice the BC Court of Appeal did simply quote from the Supreme Court of
Canada's decisions. However, some procedural contingencies were interesting and did shed
some light on matters that were yet unexplored.
The issue of entrapment can only be raised by the defence after the Crown has proved guilt
beyond a reasonable doubt. The defence can then move that the process of the Court has been
abused due to the accused having been entrapped. The judge (not the jury) must then decide
upon adduced evidence if there was entrapment. The burden of proving entrapment is on the
accused, on the balance of probabilities.
Should an accused plead guilty subject to a consideration for a judicial stay of proceeding based
on a claim of entrapment then the defence must lead evidence (without there being any burden
on the Crown to prove absence of entrapment) of entrapment. If there is a plea of not guilty
then the defence is permitted to cross-examine during the trial, any witnesses on issues related
to entrapment even though the issue is irrelevant to the substantive charge.
An interesting issue of Crown Privilege arose in this case. The investigating officer who was
claimed to have been involved in entrapping the accused had "simulated" an ingestion of
cocaine, he testified. Counsel for the defence claimed that this could not effectively be done
and he questioned the officer how this was done. The Crown claimed privilege and submitted
that it was an issue of public interest. In other words the defence was attempting to show that
the officer had ingested cocaine and that his claim simulation was a fabrication that
consequentially affected his credibility shedding doubt on all of his evidence. The Crown
objected to the officer explaining how the simulation was done as this would endanger
undercover personnel that practised this method. The trial judge had agreed with the Crown's
position and disallowed the question. This, the defence claimed, was erroneous in law.
The Crown's objection was not related to the answer revealing the identity of an informer,
consequently s. 37 of the Canada Evidence Act governs this issue. The Crown therefore was
obligated to certify orally or in writing that revealing the requested information affected
"specific public interest". A Court is obligated to hear the submissions where necessary in the
absence of the public and parties to the proceedings. The court may then order that the
information not be disclosed or placed restrictions on disclosure where it "concludes, that in the
circumstances of the case, the public interest in disclosure outweighs in importance the specific
public interest." (Note that only Courts of Superior jurisdiction can adjudicate such a conflict).

8

Mack v. The Queen and Showman v. The Queen - Page 48 of Volume 33 of this publication.

13

The main matter to be considered is whether nondisclosure could affect the outcome of the
trial. In other words, is the accused person by not disclosing the information deprived from
making a full answer and defence. If the Court concludes that such is the case then the judge
must give the Crown the opportunity to withdraw the claim of privilege or enter a stay of
proceedings. Should the Crown decline to do so, then the judge must allow the introduction
of the evidence. As this matter was apparently inadequately pursued ....
The appeal was allowed and a new
trial was ordered

14
MUST THE PERSON WHO REFUSES TO GIVE A SAMPLE OF
BREATH OFFER HIS/HER REASONABLE EXCUSE
AT THE TIME OF REFUSAL?
REGINA v. OSBORNE - The County Court of Vancouver, C.C. 891689 - June 1990
The accused was under demand to provide breath samples. He called three lawyers and left
a message for his own lawyer to call him. As the end of the two hour period approached he
was requested to blow. Without any explanation as to why, he refused to do so. At his trial
for refusing, a doctor testified that the rib injuries the accused suffered on account of a bar
room brawl, three months prior to the date of the offence, were capable of causing him
discomfort when breathing deeply. This he claimed, was his "reasonable excuse". The trial
judge held that the accused should have offered his excuse to the officer at the time of refusal
and he was convicted. He appealed the conviction to the County Court.
The defence was that the accused was made aware of his right to remain silent. He had
exercised that right and it.turned out to be a trap to have done so. He had shown that he had
a reasonable excuse and he should not have been convicted.
The defence pointed out that the right to remain silent is deeply rooted in our legal tradition.
It applies at the investigative as well as at the trial process stages and no adverse inferences

ma.y be drawn from an accused person not having given an explanation even where it could
have explained his criminal actions. It was conceded that the law stipulates that refusing
without a reasonable excuse is a crime, but it fails to say that the excuse must be offered at the
investigative stage. As a matter of fact, if a suspect is compelled to disclose his excuse to the
police then the warning that he has a right to remain silent is rendered meaningless, or worse,
it becomes a trap.
At this trial the judge had followed a precedent established by the BC Court of Appeal9 in the
Ferron case. Ferron had been unable to contact his lawyer and failed to explain this when
police told him to blow. This had given the officer a right to assume that Fellon had refused.
The lack of an explanation also deprive police from establishing the grounds for a refusal,
where this is possible. This means that remaining silent in such circumstances can result in
consequences adverse to the interest of the person who exercised that constitutional right. The
dissenting reasons for judgment reads as follows on this point:
"I regret to say that I think counsel for the accused is right. If an
accused is, as was found here to be the fact, attempting without
delay to exercise his right under the Charter, to say that he does
not have a 'reasonable excuse' for his refusal, would make a
mockery of the Charter. His right is not the less a right because
it has not been infringed by the police" ...... " .... I cannot read in
s. 238 (5) as if it said: without reasonable excuse disclosed to the
peace officer. "

R. v. Ferron 49 C.C.C. (3d) 432

15
It seems that the County Court judge reviewing this Osborne's conviction leaned toward the

dissenting view in the Ferron decision. However, he was bound by the decision of the majority
of the BC Court of Appeal. The trial judge had been entitled to take note of and ascribe
weight to the fact that the accused advanced his reasonable excuse at trial only and not at the
time he refused to blow.
Accused's appeal dismissed
Conviction upheld

16
THE AGENT PROVOCATEUR AS A "CELL-MATE"
CONSTITUTIONALITY OF THIS INVESTIGATIVE PRACTICE
RIGHTS OF DETAINED PERSON
REGINA v. HEBERT - Supreme court of Canada, 57 C.C.C. (3d), June 1990
When voluntariness was merely the single prerequisite to the admissibility in evidence of an
accused's statement made to a person in authority, the practice of placing an agent provocateur
in the cell with the accused to obtain some inculpatory evidence did not inhibit that evidence
from being admitted. The Courts applied a subjective test as to the state of mind of the
accused. He did not know that from an objective point of a view the agent was a person in
authority. Consequently, no voluntariness needed to be proved and the statements so obtained
are admissible. Since the advent of the Charter of Rights and Freedom as part of our 1982
entrenched constitution, the practice has been tested continuously in light of the right to remain
silent. This issue reached the Supreme Court of Canada in June of this year when Hebert
appealed an order by the BC Court of Appeal10 (sitting as the Yukon Court of Appeal) to stand
trial again on a charge of robbery.
After a lengthy investigation the accused was arrested on reasonable and probable grounds for
believing that he had robbed the desk clerk at an inn. He was given an opportunity to speak
to his lawyer who told him not to say anything. The accused complied and was placed in cells.
Unbeknown to him his cell-mate was an agent-provocateur to whom the accused made
incriminating statements. The admissibility of these statements became the kernel issue of the
trial and appeals. Perhaps to shed as much light on this issue surrounding a police practice
approved at common law 11 , the synopsis of the reasons for judgment by the BC Court of
Appeal may be helpful:
The BC Court of Appeal dealt firstly with the right to counsel argument and
what lawyer/client relations are involved. It reviewed pre and post Charter
cases where casual conversations with persons in authority had become a
contentious matter in terms of propriety and inclusion in the Crown's case. PreCharter cases establish that obtaining a statement by subterfuge and deception is
acceptable and it seems from the post-Charter cases that this is left unchanged.
However, distinction is made between trickery in the official interrogation setting
and surreptitious setting such as using an agent provocateur.
In some cases the impropriety had been int he interview method where, for
instance, a suspect was tricked or psychologically manipulated to respond to
questions and/or suggestions after he clearly indicated to want to remain silent.
silent. The casual conversation a police driver (who ferried a suspect to the
courthouse) had with the suspect that was calculated to be a continuation of an
unsuccessful questioning of the suspect, was a means of circumventing ethics as
well as the right to counsel.

10

See Volume 32, page 5 of this publication.

II

See Regina v. Rotlunan (1981) 59 C.C.C. (2d) 30.

17
Said one superior court justice:
" ...... once an accused person has retained counsel to the knowledge of the police
or other person in authority, the latter ought not to endeavour to interview and
question that accused person without first seeking and obtaining the concurrence
of his solicitor."
Another superior court held in a case where legal advice had been obtained and a firm refusal
to give a statement was indicated:
" ...... the officer deliberately went behind the back of counsel to obtain that
admission and I hold that this is an interference with the right to counsel
guaranteed by the Charter of Rights and Freedoms. If police officers having sole
control of prisoners, can solicit admissions from those at a time that they are
isolated from legal advise, the so-called right to counsel is impaired if not
meaningless."
The Supreme Court of Canada said in the trend setting Manninen 12 decision very much the same
things although at the time Manninen made his utterances he had not received legal advice but
had clearly stated he wanted to exercise his right to remain silent.
The B.C. Court of Appeal held that this Hebert case is distinct from these precedents in that
the deceptive practice used here was not in the interrogation setting. The conversation the
agent provocateur had with the accused was not a continuation of the interrogation. Said the
Court:
"It cannot be logically contended that merely to engage an accused person in
conversation at a time and place completely isolated from the interrogation
process is to subvert the solicitor/client relationship."
The B.C. Court of Appeal held that the precedents referred to above, should not be applied in
non-interrogation settings where there is a complete absence of coercion or pressure. A
perfectly voluntary and reliable statement should not be rejected. Lawyer/client relations and
privileges in criminal law, do not have the kind of reach that if their warnings and advice are
not followed, the evidence obtained by their clients not adhering to that advice in settings
isolated from the interrogation process, would have to be excluded. If an undercover police
agent engages a suspect in conversation, and if the agent's questions or utterance are not the
repeat of what happened in the interrogation and are not a continuation or in tenor or otherwise
connected to the interrogation, then there is no reason to consider such police action a breach
of the suspect's right to counsel.
In relation to the undercover operation being a breach of the right to the principles of
fundamental justice, the B.C. Court of Appeal did not see things in the defence counsel's light.
Quoting from a U.S. judgement on the point the court ruled that judges are not to use the
exclusionary rule to govern police conduct even if they find the conduct unfortunate, distasteful
or inappropriate. The only time police practices in these circumstances are within their purview

12

See Volume 28, page 1 of this publication.

18
for exclusion is when the conduct is so inappropriate or repulsive that the community would be
shocked; and this would only be the case if there is a clear connection between that conduct and
the obtaining of the statement.
Defence counsel had apparent!~ argued that these views were contrary to the precedent set by
the Supreme Court of Canada. 3 However, the court reiterated in conclusion that these cases
deal. with the regular interrogation process and do not purport to deal with the issues and
circumstances as they are in this case. Consequently the BC Court of Appeal allowed the
Crown's Appeal and ordered a new trial. As stated above, the accused appealed this decision.
The Supreme Court of Canada (S.C.C.)
All nine Justices of the highest Court of the land heard the accused's appeal and they were
unanimous in overturning the order for the accused to be tried again. The following is a
synopsis of reasons for judgment reflecting the opinion of seven of the Justices.
The issues were simple and straight-forward:

1.

Did the "cell-mate" practice cause the accused's right to remain silent to be infringed?
He had been informed of that right by the same authorities who then by deception
extracted inculpatory evidence from the accused.
Did the cell mate practice, in circumstances like these, violate the accused's right to
counsel?

2.

The S.C.C. held that the two questions and their underlying rights, were intertwined. It is not
a question of how far is the reach of right to counsel or right to remain silent. The issue is one
of application of the principles of fundamental justice.
When the Charter come into effect in April of 1982, it was not the law-makers' intent to anchor
the law as it then was. It was clearly intended that the application of the entrenched rights and
freedoms were to be applied broader and more general then the rigid rules as they were prior
to the Charter. Therefore, the "confession rules" (at common law) must be considered in light
of" the principles of fundamental justice". Furthermore the rights of a person must not be
considered in isolation of one another. For instance, the right to remain silent must at all times
be compatible with the right against self incrimination, the right not to testify and the right to
counsel.
The confession rules had two underlying theories, each capable of a Court rejecting a pre-trial
utterance made by an accused. If the statement was induced by a person in authority and
adduced in evidence to prove the truth of its content, it should be rejected for being
untrustworthy. The other dictum that could cause rejection of a statement is: "no one is bound
to betray himself'. Inducement by authorities received the objective test to determine if the
accused person had made the statement in hope of advantage due to a promise or out of fear
because of threat. He needed not to be told of any rights he had or to be aware of any of his
options. The "confession rules" as they were, only extended the right not to be tortured or
coerced.
13

R. '¥. Clarkson - Volume 24 - Page 36 of this publication
R. v. Manninen - Volume 28 - Page 1 of this publication

19
The absence of these and the accused's knowledge that he was speaking to a person who may
effect the path of prosecution (a person in authority) rendered the statement to have been
voluntarily made, the single prerequisite to admission in evidence.
The S.C.C. held:
"The absence of violence, threats and promises by the authorities does not
necessarily mean that the resulting statement is voluntary, if the necessary mental
element of deciding between alternatives is absent." (emphasis added)
To cause the presence of that mental element the Crown will have to show that the accused was
at the time he made the statement, aware of the alternatives. In other words, knowledge on the
part of the accused, that he had a choice to speak or be silent is relevant to the voluntai-iness
with which he made his statement.
Furthermore, there is a right not to have to incriminate oneself. Does this right only apply to
trial procedures? If this right has no application at pre-trial stages, it is a mere illusion,
reasoned the S.C.C. During trial an accused person has a clear and informed choice whether
to testify. It should similarly apply at pre-trial and investigative stages. Said the Court:
"The philosophie and practical relationship between the privilege against selfincrimination and the right of the suspect to silence prior to trial suggests that the
same right of choice should prevail at the earlier phase of the criminal process".
(emphasis added)
Then there is the relevant right to counsel. Said the S.C.C.:
"The state is not obliged to protect the suspect against making a statement; indeed
it is open to the state to use legitimate means of persuasion to encourage the
suspect to do so. The state is, however, obliged to allow the suspect to make
an informed choice about whether or not he will speak to authorities. To assist
in that choice. the suspect is given the right to counsel." (emphasis added)
"The Charter . . . . . . seeks to ensure that the suspect is in a position to make an
informed choice by giving him the right to counsel." (emphasis added)
This does not mean that the suspect needs to have understanding of the legal implications
involved, but must possess an operating mind when making the choices he has.
Section 7 to 14 of our Charter strikes a balance between the state's superior resources and a
detainee by establishing the latter's rights. To trick a detained person into making a statement
after he has exercised the right of conferring with counsel and declined to say anything to the
authorities, violates that person's right to remain silent. Admitting evidence from a "cellmate" operation is allowing police to do something indirectly they are prohibited from doing
directly. This cannot be in line with the Charter, concluded the S.C.C. Any evidence resulting
from pre-trial interrogation must have as a prerequisite to admission a meaningful choice on the
part of the detained person whether he wants to speak to the authorities.
Does this mean that there is an absolute right to silence the Crown must prove was waived by
the detainee, before it can be considered for admission in evidence? A waiver is subjective
concept, consequently the detainee must know he is speaking to a person in authority. It would

20
then follow that where the detained person made pre-trial statements he would have to know
that the person is an authority before the Crown can establish waiver. That would practically
eliminate all statements made to nearly anyone. There is nothing in the Charter or the
confession rules that suggest that the right to silence should be extended that for.
Instead the S.C.C. held that our Courts must have the power to correct abuses of power against
individuals. It must be empowered to strike the precarious balance between the interest of
police and the rights of the person "while allowing them to nevertheless admit evidence under
s. 24(2) where, despite a Charter violation, the admission would not bring the administration
of justice into disrepute."
The S.C.C. emphasized that their decisions in the case only applied to most-detention
investigation practices. "Undercover operations prior to detention do not raise the same
considerations". During pre-detention periods of investigation these rights doe not apply or
affect evidence obtained by trickery.
Seeking information by deceptive means (save
entrapment) from a person who is not detained is entirely different.
it was also boldly stated that questioning a detained person in the absence of counsel after he
retained and consulted counsel, is not prohibited by the rule. Presumably, counsel will inform
the detainee to remain silent. As long as police at this stage are not posing as undercover
officers and the accused chooses to volunteer information, there is no violation of the Charter.
"Police persuasion, short of denying him the right to choose whether to talk to the authorities
or depriving him of an operating mind, does not breach the right to silence."

The undercover cell-mate deprives the accused of the right to choose whether or not to speak
to the authorities. However, should the accused speak freely to a bona fide cell-mate, such
evidence does not affect the rights of the accused and whatever he said to that cell mate may
be admissible in evidence. (It is implied that an informer who is a bona fide prisoner but
planted with the accused to extract such information will be considered to infringe the accused's
rights of choice).
There is a difference between deceptively observing a suspect or by similar means to actively
illicit information from him. The latter would amount to deprivation of the right to choice to
remain silent. If, by deceptive means police interrogate a detained person after he has indicated
his wish to remain silent they illicit information they were unable to obtain without violating
the accused's right to silence. Outside of eliciting behaviour on the part of the police, there is
no violation of the accused's rights.
To put all of this into perspective the S.C.C. used a U.S. case14 as an example. The police sent
an undercover agent into the cell-block to listen to the conversations of the accused with other
prisoners. He did happen to make inculpatory statements to his cell mates and the agent
testified at his trial. The US Supreme Court held that the defence needed to show that the
agent took some action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks. About this, our Canadian Supreme Court said:
"If the suspect speaks, it is by his or her choice, and he or she must be taken to
have accepted the risk that the recipient may inform the police."

14

Kuhlmann v. Wilson - 477 U.S. 436 (1986)

21

In such cases the instructions to the agent are important evidence to support admissibility. In
one Canadian case1s where police did apparently anticipate problems with the conventional "cellmate" approach the agent testified that his instructions were not to initiate any conversation with
thea accused person; not to ask any leading questions if conversation did occur or do anything
in attempt to gather information from his other than what he may say to bona fide ceil-mates.
When the accused in this Hebert case spoke to the undercover agent, he had not reversed his
previous decision not to speak to the police. He wanted to speak to a fellow prisoner which
is quite to a fellow prisoner which is quite a different matter. The trick to negate the accused's
decision violated his rights. The admission of the evidence resulting from the deception would
render the trial unfair and bring the administration of justice into disrepute.
Accused's appeal allowed
Acquittal restored
Synopsis of history regarding statements:
When one relates the utterances of another person in testimony, he can rarely vouch for the
truth of the content of that statement. Consequently where such statement is adduced to prove
the truth of its content the evidence is hearsay and is only allowed as an exception to the
hearsay rule. Abhorrence and cruel excesses of the inquisition old, the ecclesiastical courts and
the Star Chamber caused procedural protection to be put in place, "against the overwhelming
power of the state" .
Already in 1740 (when an accused person was not allowed to testify and could not rebut or
clarify his statement) statements made to a person in authority under inducement or fear were
considered unreliable.
To ensure reliability of such hearsay evidence the Court held in 191416 that only statements that
were voluntarily given were admissible in evidence. This pretty well meant that all statements
were admissible unless induced by threats, promises or violence.
It should be understood that the statement we refer to here were only inculpatory statements
such as confessions or admissions. It was reasoned that exculpatory statements could be
admitted as they favoured the accused. This was so until June of 1979 when the Supreme
Court of Canada held that the rule applied to all statements. Mrs. Piche, the accused, allegedly
murdered her husband and had given a statement to the police. That statement was exculpatory
(denial of guilt) but the crown adduced it in evidence to destroy the accused's credibility should
she decide to testify. The statement was an obvious lie. Due to the Crown's intention the
Court held that the statement was akin to an inculpatory utterance and conducted a voir dire.
The statement was held to have been involuntarily given and was suppressed. Mrs. Piche then

is Regina v. Logan - (1988) 46 C.C.C. (3d) 354
16

Ibraham v. The King - (1914) A.C. 559

22
testified and the Crown was blocked from cross examining her on the basis of the inadmissible
statement. She was acquitted and the Crown appealed, saying that the exclusion of the
exculpatory statement had caused an acquittal. The Supreme Court of Canada held that the trial
judge had been correct. No statement made by an accused to a person in authority whether
inculpatory or exculpatory, may be admitted into evidence unless the Crown proves that it was
voluntarily given.
In the same year (1970) the Supreme Court of Canada handed down a controversial decision
in an appeal by the Crown in Regina v. Wray. Wray had confessed to a murder and included
in that statement where he discarded the murder weapon. Consequently the weapon was
retrieved and a ballistics test proved that it indeed was the murder weapon like the trend of the
fifties and sixties the judiciary were suppressing statements for reasons other than
involuntariness to maintain a balance between fundamental rights and the evidentiary value of
the statement or where they felt that admitting a statement would render the trial unfair. The
trial judge in the Wray case had ruled that the confession was not voluntarily given and he
disallowed the statement as well as the murder weapon and the results of the ballistics test.
They were derivatives of the inadmissible statements he reasoned and that real evidence was
also suppressed. Some authorise claim that motivated by the fact that a person who was
factually guilty would legally be innocent, the Supreme Court of Canada did in fact remove all
judicial discretion to disallow evidence derived from an inadmissible statement. Reliability
become the sole issue. The confession itself could not be relied upon but the "subsequent facts"
(the rifle and the ballistic test results) were reliable. After all, evidence was evidence
regardless how it was obtainf'..d. While in other nations within the Commonwealth the judiciary
encouraged the approach of the trial judge in this Wray case the Canadian system stopped the
Canadian trend towards a more liberal "confession rule" and left our judges without discretion
to reject statements on the ground they were unfairly obtained. After all, not only was the real
evidence admissible but also that portion of the inadmissible statement that referred to that
evidence. This strict rule remained in existence until new consideration had to be given to that
issue after the exclusionary rule became entrenched law in our Constitution Act of 1982.
The trendsetting case in relation to our exclusionary rule was R. v. Collins 11 , decided by our
Supreme Court of Canada in April cf 1987. The Court held in that case that real evidence
should rarely be excluded just because there was a violation of a right. However, in Wray, the
evidence was discovered not because of an unreasonable search but as a consequence of selfincriminating utterances by the accused and would not have been discovered if it was not for
him making the statement. There may be a distinction between the consideration whether to
admit that evidence. Needless to say that post-Charter cases have shed an entirely different
light on these rules. This Hebert will cause a quantum change although the Supreme Court of
Canada considered the consequences of their ruling to be minor. The found comfort in their
opinion that in countries where similar confession rules operate the police are not inhibited from
adequately investigating crimes.

17

See Volume 27, page 1 of this publication.

23
RANDOMLY STOPPING A MOTOR VEHICLE
ARBITRARY DETENTION
REGINA v. LADOUCEUR18 - Supreme Court of Canada. May 1990 [1900] 1 R.C.S. 1257
Police Officers stopped the accused while driving his car on a city street for the sole purpose
of checking the documents and licenses. When asked in cross examination if the stop was at
random, the officer replied, "Pretty well, yes."
This random stop resulted in the officer discovering that the accused license had been
suspended. The accused had already been convicted three time for driving whilst under
suspension within the last five months. The stop occurred 10 days after the Charter came into
effect and the accused claimed that he had been arbitrarily detained; that his right to be secure
against unreasonable search and seizure had been infringed; that his right to security of the
person and liberty had been violated; that the provincial Highway Traffic Act provisions that
authorized police to stop him without articulable cause or as part of a well publicized law
enforcement program is inconsistent with the rights mentioned above and was therefore without
any force or effect. All these arguments failed at trial and appeal levels. The accused then
appealed his conviction to the Supreme Court of Canada.
This was the third time in a decade that the issue of police randomly stopping cars came before
the Supreme Court of Canada (S.C.C.). Before our Charter was proclaimed a Mr. Dedman19
was stopped as part of a police program to fight the drinking-driver problem. There was
nothing about his driving or his car that caused police to stop him. The S.C.C. did an
incredibly interesting review of the common law authority for police to preserve life, protect
property and ferret out crimes. It held that police had a common law right to stop cars
randomly, "for the purpose contemplated by the programme".
In post-Charter days a Mr. Hufsky~ was stopped by police for no apparent reason. It was
found that he had been drinking and he refused to give a sample of breathe for a "road-side"
breath test. The stopping was not part of a publicized program as in the Dedman case, but was
part of a "road check" action by police. The S.C.C. held that the stop as well as the demand
had separately constituted detention and Hufsky had been entitled to be informed of his right
to counsel (which was not done). However as this would render the Highway Traffic Act
provision for such a stop and the Criminal Code enactments providing for a road side breath
analysis ineffective. The Court held that these laws and their operational requirements were
in view of the carnage caused by irresponsible and drinking drivers, justifiable limits to the
rights and freedoms set out in the Charter. It also held that inspecting documents required for
driving, insurance and registration of a motor vehicle did not amount to search.

18

See Volume 30, page 19 of this publication and 3 C.C.C. (3d) 240 (Ontario Court of Appeal)

19

Dedman v. The Queen [1985] 2 S.C.R. - Volume 22, page 17 of this publication

20

Volume 31, page 10 of this publication.

24
In this Ladouceur case there was no publicized programme or a road check action by police
involved. There were just two constables on patrol who randomly and capriciously stopped the
accused. There simply was no articulable reason for the stop. The accused consequently
claimed that his situation was distinct from those of Dedman and Hufsky.
The S.C.C. again reflected on the statistics of over 1000 persons killed on Ontario highways
in a period of four years as well as a near 100 1 000 persons who were injured. Also property
damage had amounted to a half a billion dollars. Those statistics 21 also clearly indicated that
unlicensed and uninsured drivers had caused more of these accidents than those licensed and
insured. The severity of the accidents caused by the former category exceeded those that
involved the latter group. With regard to driving under the influence of alcohol or a drug the
statistics were very clear. Thirty one percent of all fatal accidents involved drivers under such
influence.
The S.C.C. reasoned that finding unconstitutional the provisions in provincial traffic statutes,
that provide for police randomly stopping motorists, is not in the public interest. The primary
objective of the provisions is traffic safety and not apprehending offenders. To discover after
someone has been killed or victimized that the driver or vehicle was unsafe is an unthinkable
alternative. Driving is a privilege and a licensed activity.
Again, it was pointed out that mechanical defects, driver inabilities or, particularly, the abuse
of insurance or license do not manifest themselves while a vehicle is being driven down a road.
To hold that the prerequisite to a stop must be suspicion, reasonable cause or some other
articulable reason would cause these provisions in law to be reactive rather than preventative
as they are designed to be. The infringement cf the right not to be arbitrarily detained is in this
case outweighed by the legislative objectives to minimize our slaughter on the highway. The
probability of being apprehended is an effective deterrent, concluded the Court. In the absence
of intrusive searches or other police practices that would exceed the minimal inconvenience a
normal spot check is intended to be, the impairment of the right not to be arbitrarily detained
is demonstrably justified under s. 1 of the Charter. The accused's other constitutional
arguments were similarly rejected.
Appeal dismissed
Note:

21

One Justice, who agreed with the majority of the Court, observed that police had
to exercise this power to stop motorist at their whim responsibly. A Charter
infringement may well occur if the reason for stopping a motorist is due to
racism, age or discriminatory factors.

Ontario Motor Vehicle Accident Facts; 1984.

25
LEGAL TID-BITS
CROWN'S CONFLICT OF INTEREST - RELEVANCE OF "BASEBALL BAT"
EVIDENCE IN THE DRUG TRADE
The accused was charged with drug offences and was prosecuted. Crown Counsel was "ad
hoc", a lawyer who had some six years ago defended the accused when he was charged with
possession of narcotics and a weapon. Another lawyer of the same firm, was at the time
representing the accused regarding some auto insurance dispute. The accused's current counsel
was made aware of all this by the Crown lawyer and a specific consent was given; at least
Crown counsel was assured that no objections would be taken. When the trial resulted in a
conviction the accused appealed claiming that his right to a fair trial had been infringed (ll(d)
Charter). The Quebec Court of Appeal rejected the grounds for appeal. The lawyer for the
Crown had conducted himself appropriately and there was nothing to indicate that he had been
in any conflict. No information the lawyer may have had about the case six years ago was
used. By specifically consenting the accused had also specifically waived any objections to the
lawyer acting for the Crown during his trial. Another issue was that the accused had been
apprehended mid-March while driving his car, which contained a cellular phone, a baseball bat
and a fish-club. These items were not entered as exhibits but the find had been included in
testimony. For the accused who had no visible means of support, the cellular phone seemed
a superfluous item while the bat and club are useful items of defence or aggression in the drug
trade. The accused argued the Crown had failed to show any relevance of these items to the
alleged offences. Baseball was out of season as was fishing and the presence of the items
appeared to be linked to the allegations. Appeal was dismissed.
Regina v. Joyal - 55 C.C.C. (3d) 233.

*****
PRELIMINARY INVESTIGATIVE QUESTIONS WHEN DOES DETENTION BEGIN?
The accused was in hospital as a result of injuries sustained in a motor vehicle accident.
Shortly after the accident the investigating officer attended at his bedside. In the presence of
the accused's wife, the officer made some inquiries from how he felt to how much he had to
drink and when his last drink had been consumed. The answers resulted in a demand for a
blood test which the wife suggested he should get over with. The right to counsel warning
accompanied the demand. This, it was claimed was too late as the accused was detained from
the time the officer began his questions. The BC Court of Appeal disagreed with this position.
Depending on circumstances of course, the asking of some questions at the outset of an
investigation from a person who may tum out to be involved in a criminal act does not cause
the person being questioned to be detained. In this case detention started when the demand for
a blood sample was made. Conviction of "over .08" was upheld.
Regina v. Kay - 53 C.C.C. (3d) 500.

26
CONSTITUTIONALITY OF
INTERCEPTING PRIVATE COMMUNICATIONS WITH CONSENT.
UNREASONABLE SEARCH AND SEIZURE
The accused requested a police informer to invest in his operation of importing narcotics.
Police provided the informer with money to make the investment and equipped him with a
body-pack when he interviewed the accused about his operation. Police intercepted and
recorded the conversation with the consent of the informer. The accused appealed his
conviction of conspiracy to import narcotics to the Supreme Court of Canada. He did, of
course attack the admissibility of the recording claiming· that the interception by police .had
infringed his right to be secure against unreasonable search and seizure22 • The Court reiterated
that the provision in the Criminal Code of Canada that renders such interception with the
consent of one party, lawful is not unconstitutional. However, when police make such a
"participant electronic surveillance" it does violate the Charter Right of the party who did not
consent to the interception. However, the accused had failed to show that admitting the
evidence would bring the administration of justice into disrepute. Conviction upheld.

Regina v. Wigge~ - 53 C.C.C. (3d) 476

******
AWARENESS OF DIFFICULTY WITH STEERING MECHANISM
ACCIDENT CAUSED WHILE DRIVING NORMALLY CRIMINAL NEGLIGENCE CAUSING DEATH
The accused drove a 1972 vehicle that was generally in poor shape. For three days prior to
a collision that caused two deaths the accused was aware that the steering on his vehicle was
acting up. He drove normally when according to the accused " the steering gave", with the
accident as a consequence. The accused, who was not a mechanic, had checked the front end
of his car and installed new shocks and "ties". However this did not remedy the "acting up",
and the accused said to have postponed any further adjustments or repairs until his brother
would come and assist him. The trial judge had held that this evidence was inadequate to
support a charge of criminal negligence. The Crown appealed this verdict to the BC Court of
Appeal. The acquittal of the accused had followed a motion of "no-evidence". The BC Court
of Appeal found this to be erroneous and found that there was substantial evidence. Wilful
blindness to risk can support criminal negligence.
Crown's appeal allowed, new
trial ordered

22

See R. v. Duarte - Volume 36, page 1 of this publication

23

R. v. Wiggens - Volume 30, page 15, BC Supreme Court (trial)
- Volume 32, page 30, BC Court of Appeal

27

RIGHT TO COUNSEL AND AFFORDABILITY
POLICE TO INFORM SUSPECT OF LEGAL AID
The accused was arrested and interrogated by Alberta police personnel in Manitoba. He was
informed of his right to counsel and given plenty of opportunity to contact a lawyer to advise
him on the second degree murder allegation against him. The accused inquired if Legal Aid
was available in Manitoba. He indicated not being able to afford a private lawyer. The
Alberta officers told him that they assumed that there was such a service but asked him if he
thought there was reason for him to speak to a lawyer. "Not right now, no", replied the
accused. The interview r,ontinued and the accused made some statements after which he
stopped speaking to the officers other than to request Legal Aid. Police got the accused a
Legal Aid lawyer who advised him not to give any more information to police. The trial judge
held that the accused's initial inquiries about Legal Aid and Police not assisting him then to
contact that service, amounted to an infringement of the accused's right to counsel. The
statements the accused had made were consequently suppressed and he was acquitted. The
Alberta Court of Appeal disagreed with the trial judge and ordered a new trial. The accused
appealed to the Supreme Court of Canada which allowed his appeal and restored the acquittal.
Although it found that the conduct of the officers had not been flagrant or blatant, they had
seriously erred when they failed to inform the accused (or discover for themselves) that a Legal
Aid duty counsel was available. The accused had been left with the impression that financial
inability to afford a lawyer prevented him from exercising his Charter right to counsel.
Regina v. Brydges - Supreme Court of Canada [1990] 1. S.C.R. 190, February 1990.

28
A SUPERFLUOUS APPEAL
A lawyer's BMW was clocked in 1987 by a Multinova at 81 K.P.H. in a 60 K.P.H. zone.
The lawyer was charged with speeding as the registered owners of the car under the vicarious
liability clause of the Motor Vehicle Act of BC. This clause was extensively amended in 1988
in an apparent attempt to bring it in line with the Charter of Rights and Freedoms. The
accused was convicted and the convfotion was upheld by the County Court. The accused then
appealed to the BC Court of Appeal which found that the vicarious liability clause in 1987 was
unconstitutional. This resulted in the appeal being allowed and the conviction was set aside.
Needless to say the litigation was superfluous in terms of setting a precedent. The provision
of the Motor Vehicle Act the Court had to review was obsolete. This caused the Court of
Appeal to comment that the thousands of dollars of taxpayers money it took to exhaust the
appeal system had a single benefit. It saved the owner of the BMW a $75.00 fine. One Justice
of the Court of Appeal wrote a separate judgment in the form of a reprimand. After having
summed up the incredible waste, he wrote:
"Thirdly, whatever happened to the precept that one should take
one's punishment like a man? Somebody who had possession of
the vehicle, a BMW, with the appellant's consent drove it
considerably over the speed limit on the Stanley Park causeway in
rush hour and the appellant, a lawyer, should have been man
enough to take the punishment for letting such a person drive, i.e.
pay the sum of $75.00 which does not seem to be beyond the
financial capacity of the owner of such a motor vehicle, even if
the driver, whoever he or she was, was not prepared to reimburse
. II . . . . . 11 1 cannot but express my regret at th'is resu lt ..... II
him
Regina v. Geraghty - BC Court of Appeal, NO CA010262 Vancouver, April 1990.

29
CONSTITUTIONAL VALIDITY OF PROVISION THAT CONSENT
IS NO DEFENCE FOR SEXUAL ASSAULT WHERE THE COMPLAINANT
IS UNDER THE AGE OF FOURTEEN AND THE ACCUSED IS
MORE THAN THREE YEARS THE VICTIM'S SENIOR
At the age of twenty-one years the accused had sexual intercourse with a thirteen year old girl.
Due to the provisions contained in S. 150.1 C.C. the accused was deprived of raising the
defence of consent. The section stipulates that where the complainant of sexual assault is under
the age of fourteen an accused cannot raise consent as a defence if he is more than three years
older than the complainant. The essential element of assault is the touching without consent,
consequently the section removes that element from the offence's definition, placing a lesser
burden of proof on the Crown. This discrimination is one exclusively on the basis of age and
therefore contrary to s. 15 of the Charter. The Supreme Court of Prince Edward Island found
that s. 150.1 C.C. cannot withstand the test under s. 1 of the Charter as being demonstrably
justified in a free and democratic society. The Court held that the section is without force or
effect in so far as it is inconsistent with the Charter. This, of course, meant that the accused
could raise the defence of consent.
Regina v. R.S.M. - 57 C.C.C. (3d) 182.