IN SERVICE: 10-8
A PEER READ PUBLICATION

inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

“They Are Our Heroes. We Shall Not Forget Them.”

A newsletter devoted to operational police officers in Canada.

See page 24
for
BC’s Memorial

Be Smart & Stay Safe

Volume 16 Issue 4

Volume 16 Issue 4 - July/August 2016

No Exception To Implied Licence For Impaired
Driving Cases

4

Could Have, Not Would Have, Is Proper Test In
Assessing Search Warrant

6

Fentanyl Excluded: Failure To s. 10(b) On Investigative
Detention Was Serious

9

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.

Standard Field Sobriety Testing Testimony Not Expert
Evidence

11

Upcoming Courses

General Warrant May Authorize Bedpan Vigil

14

Even If Rights Breached, Digital Photos Admissible
Under s. 24(2)

19

2015 Police Reported Crime

24

Part VI Authorization Not Required For Historical
Text Messages

27

No Privacy Interest In Sent Text Messages On
Recipient’s Phone

28

Highlights In This Issue

NEW JIBC Graduate
Certificate in Public
Safety Leadership
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

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.

JIBC Police Academy
See Course List here.

Live & Online
September 23, 2016
This 14th Annual OsgoodePD one
day intensive program on the law
of Search and Seizure in Canada
will give you the latest and most
important developments. You will get practical tactics and
information you can use from prominent experts.
REGISTER NOW
14th Annual National Symposium on Search & Seizure Law in Canada

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.
PAGE 2

AGENDA
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Volume 16 Issue 4 - July/August 2016
The happiness track: how to apply the science of
happiness to accelerate your success.
Emma Seppälä.
London: Piatkus, 2016.
BF 637 S8 S426 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.

Bullies: from the playground to the boardroom:
strategies for survival.
Jane Middelton-Moz & Mary Lee Zawadski.
Deerfield Beach, FL: Health Communications, 2014.
BF 637 B85 M53 2014
Designing adaptive and personalized learning
environments.
Kinshuk.
New York, NY: Routledge, 2016.
LB 1031 K415 2016

Managing conflict at work: understanding and
resolving conflict for productive working
relationships.
Clive Johnson & Jackie Keddy.
London: Philadelphia : Kogan Page, 2010.
HD 42 J643 2010
Mastering coaching: practical insights for
developing high performance .
Max Landsberg.
London: Profile Books, 2015.
HF 5549.5 C53 L36 2015
Nonviolent communication: a language of life.
Marshall B. Rosenberg.
Encinitas, CA : PuddleDancer Press, 2015.
BF 637 C45 R67 2015

Effective succession planning: ensuring leadership
continuity and building talent from within.
William J. Rothwell.
New York, NY: Amacom, 2016.
HD 57.7 R689 2016

The organized mind: thinking straight in the age
of information overload
Daniel J. Levitin.
Toronto, ON: Allen Lane, 2014.
BF 444 L49 2014

Everyday encounters: an introduction to
interpersonal communication.
Julia Wood & Ann Schweitzer.
Toronto, ON: Nelson Education Ltd., 2016.
BF 637 C45 W656 2016

Riding the waves of culture: understanding
diversity in global business.
Fons Trompenaars & Charles Hampden-Turner.
New York, NY: McGraw-Hill, 2012.
HF 5549.5 M5 T76 2012

Future crimes: inside the digital underground and
the battle for our connected world.
Marc Goodman.
Toronto, ON: Anchor Canada, 2016.
HV 6773 G65 2016

Talking to crazy: how to deal with the irrational
and impossible people in your life.
Mark Goulston.
New York, NY: AMA, 2015.
BF 637 I48 G68 2015

The happiness equation: want nothing + do
anything = have everything.
Neil Pasricha.
New York, NY: G.P. Putnam's Sons, 2016.
BJ 1481 P38 2016

What great trainers do: the ultimate guide to
delivering engaging and effective learning.
Robert Bolton & Dorothy Grover Bolton.
New York, NY: AMA, 2016.
HF 5549.5 T7 B5785 2016

PAGE 3

Volume 16 Issue 4 - July/August 2016

NO EXCEPTION TO IMPLIED
LICENCE FOR IMPAIRED
DRIVING CASES
R. v. Rogers, 2016 SKCA 105
After observing a man back into a car,
a witness called police and reported a
s u s p e c t e d i m p a i r e d d r iv e r. H e
provided the driver’s description, and
the make, model and licence plate
number of the car. A police officer was dispatched to
the registered owner’s apartment. The officer entered
an unlocked exterior door to the apartment building,
went to the accused’s door and knocked. The
accused opened the door and spoke with the officer.
Both men remained on either side of the door jam.
The officer formed the opinion that the accused was
impaired. His speech was “very slurred”. When
asked whether he had been involved in an accident,
the accused said that he thought someone had run
into him and he offered to show the officer the
damage to his vehicle. He left his apartment and
walked about 20 feet to the stairway while the
officer followed. The accused was “stumbling” and
“staggering”. He was taken to the police station
where breathalyzer readings of 270 mg%, 230 mg%
and 230 mg% were obtained. He was charged with
impaired driving and over 80 mg%.

Saskatchewan Provincial Court
The judge concluded, among other
things, that the officer exceeded the
common law implied licence to knock
doctrine when he went to the apartment
to see if the accused had been the driver of the car
involved in the accident and to determine whether
his ability to operate a motor vehicle was impaired.
The judge found the officer approached the door
“for the purpose of searching and obtaining
evidence against the occupant.” As such, the officer
had exceeded his authority under the implied
license doctrine and was engaged in a search of the
occupant’s home. The accused’s s. 8 Charter right to
be secure against unreasonable search and seizure
had been breached and all of the evidence obtained
by police was excluded under s. 24(2). The accused
was acquitted of both charges.

Saskatchewan Court of Queen’s Bench
The Crown successfully appealed the
acquittals and a new trial was ordered.
An appeal judge found the officer did
not exceed the implied licence doctrine.
The officer did not arrest the accused in his
dwelling. Rather, he merely approached the
accused’s home to communicate with him about the
accident and the report of a possible impaired driver.
“Where the sole purpose of the police officer is to
ask questions of the home owner, no evidence is
gathered until the occupant chooses to speak,” said
the appeal judge. “Investigative questioning does not
exceed the bounds of the implied right to approach
and knock and is not trespassory or in breach of s. 8
of the Charter.” The accused’s s. 8 rights were not
breached and there was no need to consider the
exclusion of evidence under s. 24(2).

Saskatchewan Court of Appeal
The accused then appealed the
order of a new trial. In his
view, the conduct of the police
amounted to an unreasonable
search contrary to s. 8 of the Charter and the appeal
judge erred in finding otherwise. The evidence
obtained by police ought not to have been admitted
and he sought the restoration of his acquittals on the
charges.

Implied Licence
Under the common law, an occupant of a dwelling
house gives an implied licence (or invitation) to any

PAGE 4

Volume 16 Issue 4 - July/August 2016

“[I]f ... a police officer knocked on the door to a residence for the purpose of securing
evidence against the occupant, the officer is conducting a search within the meaning of
s. 8 of the Charter. This principle applies equally to drinking and driving offences as well
as to other offences where observing the person opening the door will give visual,
auditory and olfactory clues about the person’s participation in the crime under
investigation.”
member of the public (including a police officer) to
approach the door and knock. This licence,
however, extends no further that what is required to
permit convenient communication with the
occupant. If the police exceed this licenced
purpose, such as approaching to secure evidence
against the occupant, their conduct falls outside the
bounds of implied licence and they are engaged in
an unauthorized search, thus breaching s. 8. This
does not mean, however, that the police exceed
implied licence simply because they are
investigating a potential criminal offence or are
looking for information about an actual offence,
even when they have reasonable grounds.

In this case, the officer testified that his purpose was
not just to investigate but to determine whether the
accused was impaired. The officer’s express purpose
in knocking on the accused’s door to obtain and
secure evidence as to whether the occupant, who
was recently seen driving a motor vehicle, was
impaired could not be ignored. This purpose
exceeded the implied licence doctrine, the police
conduct was unreasonable and all of the evidence
that the police gathered to support the breath
demands flowed from the officer’s decision to knock
on the door. This evidence was inadmissible under s.
24(2), the accused’s appeal was allowed and his
acquittals entered at trial were restored.

Justice Jackson, speaking for the Court of Appeal,
recognized that the purpose for the police approach
to the door, which sometimes is not easy to
perceive, is critical in determining whether implied
licence to knock has been exceeded:

Complete case available at www.canlii.org

The investigation of the crime of drinking and
driving, or a similar offence, necessarily entails
the potential to obtain evidence from conversing
with or observing the person answering the
door. Nonetheless, based on my review of the
authorities, I have concluded that if a trial judge
finds on all of the evidence a police officer
knocked on the door to a residence for the
purpose of securing evidence against the
occupant, the officer is conducting a search
within the meaning of s. 8 of the Charter. This
principle applies equally to drinking and driving
offences as well as to other offences where
observing the person opening the door will give
visual, auditory and olfactory clues about the
person’s participation in the crime under
investigation. [emphasis added, para. 29]

Editor’s note: BAC readings taken from R. v.
Rogers, 2014 KQB 167.
Excerpt from the Officer’s Testimony
Lawyer: So your purpose in attending at

Mr. Rogers’ home was to determine
whether he had been the person driving,
correct?

Officer: Yes.
Lawyer: And more importantly, whether his

ability to operate a motor vehicle was
impaired.

Officer: Yes.
Lawyer: And you would agree that the

observation made of a suspected
impaired driver’s appearance, demeanour,
speech, and actions are critical pieces of
investigation in an impaired driving
investigation?

Officer: Yes. They are what form my grounds.

The Court of Appeal found the officer’s
testimony supported the trial judge’s conclusion
that the officer approached the apartment door
for the purpose of securing evidence.

PAGE 5

Volume 16 Issue 4 - July/August 2016

COULD HAVE, NOT WOULD
HAVE, IS PROPER TEST IN
ASSESSING SEARCH WARRANT
R. v. Loewen, 2016 BCCA 351
As part of an investigation code named
Project E-Papua, police contacted diala-dope phone lines and undercover
officers purchased drugs from at least
two of them. Police also received
information from two confidential informers that the
accused was providing drugs to several street-level
dealers. Based on this information, the police set up
surveillance on the accused’s home. Over a period
of a couple of months they saw a number of
individuals, including the one’s selling to undercover
officers, coming and going from the residence. The
vast majority of these individuals stayed for less than
10 minutes, but some also came for visits
substantially longer and well outside the range of
time for which one might infer they were there to
affect a drug transaction.
Police prepared an ITO which set out the informer
information and their credibility, police surveillance
observations and the information relating to the prior
criminal histories of certain targets of the police
investigation. Included in the ITO was information
on how the police showed the informers a single
photograph of targeted individuals in order to
identify them. A search warrant was issued for the
accused’s residence and car. It was executed and
police seized drugs, cash and other evidence. The
accused was charged with possessing cocaine,
heroin and cannabis, all for the purpose of
trafficking.

The judge found that the vast majority of the ITO
contained bald, unsupported assertions, their
reliability of which could not be assessed. Among
many things, the judge criticized the general
statement that informer A had provided information
in the past resulting in drugs being seized and
persons arrested as an example. There was nothing
about how current the information was or its
frequency, and there were no details about how
much the informer was paid. The judge also
criticized the identification process in showing the
informers a single photograph to elicit their
identification rather than using the procedures
outlined by commissions such as the Sophonow
Inquiry. He also highlighted the use of “boilerplate
language” and “cutting and pasting” in preparing the
ITO. The judge went on to conclude that the ITO did
not contain “sufficient independently verifiable
information on which this warrant could reasonably
have been issued.” The warrant was set aside. The
search then, in effect, became warrantless, breached
s. 8 of the Charter and the evidence was excluded
under s. 24(2). The charges against the accused were
dismissed.

British Columbia Provincial Court

British Columbia Court of Appeal

The accused argued that the ITO, which
had been heavily edited to remove any
information that could disclose the
identity of the confidential informers,
contained insufficient grounds upon which it could
be granted. Thus, in the accused’s view, the warrant
had not been lawfully issued.

The Crown appealed the trial
judge’s decision arguing he
erred in setting aside the
warrant. The proper test in
assessing the validity of a search warrant is not for
the reviewing judge to substitute their view for that
of the authorizing judge. Rather, “if, based on the
record which was before the authorizing judge as
amplified on the review, the reviewing judge

PAGE 6

Volume 16 Issue 4 - July/August 2016

concludes that the authorizing judge could have
granted the authorization, then [the reviewing judge]
should not interfere.” In the Crown’s view, the trial
judge conducted a de novo (fresh) review of the
warrant (whether he would have been issued it)
rather than determining whether the authorizing
judge could have issued it.
Chief Justice Bauman, writing the unanimous Appeal
Court judgment, agreed with the Crown. He found
the trial judge did substitute his opinion for that of
the authorizing judge. For example, the trial judge
pondered the inference to be drawn from the fact
known drug runners frequented the accused’s house
for very brief visits. He noted these visits were not
only consistent with individuals picking up drugs to
be distributed at street level, as asserted by the
affiant, but also consistent with individuals
delivering drugs to a drug consumer within the
house or with an individual coming to see someone
but they were not home. Whichever inference was
to be drawn from the evidence was for the
authorizing judge to make. It was not for the
reviewing judge to re-weigh.
The trial judge also failed to look at the totality of the
circumstances in properly assessing the informer
information. “In assessing the totality of the
circumstances one must look to (a) the extent to
which the information predicting the criminal
offence is compelling, i.e. the extent of detail
provided; (b) the credibility or reliability of the
source; and (c) the extent of corroboration,” said
Chief Justice Bauman. As for the extent of
corroboration, the informers’ information was
corroborated by independent investigation in a
number of respects.

“A search warrant is an investigative tool.
Its justification rests on reasonable
grounds, not proof beyond a reasonable
doubt.”
Justice Bauman. “Its justification rests on reasonable
grounds, not proof beyond a reasonable doubt.” He
continued:
In my view, the judge here embarked on a
similarly flawed analysis by importing a trial
type analysis into his consideration of the “bad
character” evidence and the photo identification
of various players in the matter. There is no rule
precluding the inclusion of such information in
an ITO so long as the prior criminal activity is
relevant to the matter under investigation. The
exception is for facts leading to charges that
have been dismissed or judicially stayed. Nor is
t h e r e a r u l e r e q u i r i n g a ny p a r t i c u l a r
identification procedure in an ITO or the
investigation upon which it is based. In any
event, the identifications here were not made by
witnesses unfamiliar with the subjects, who may
have only caught a momentary glimpse of them.
The dangers with eyewitness identification are
absent here or at least greatly attenuated.
[reference omitted, para. 51]

The trial judge conducted a de novo review of the
ITO (the material founding the issuance of the
warrant) and failed to assess the material in light of
the totality of the circumstances. The authorizing
justice could have granted the warrant. The Crown’s
appeal was allowed, the accused’s acquittals were
set aside and a new trial was ordered.
Complete case available at www.courts.gov.bc.ca

Finally, the trial judge improperly imported trial
standards, such as the use of “bad character
evidence” and police “photograph identification
procedures”, into the search warrant review. “A
search warrant is an investigative tool,” said Chief

Note-able Quote
“Nothing in life is to be feared. It is only to be
understood.” - Marie Curie

“In assessing the totality of the circumstances one must look to (a) the extent to which
the information predicting the criminal offence is compelling, i.e. the extent of detail
provided; (b) the credibility or reliability of the source; and (c) the extent of
corroboration.”
PAGE 7

BCLEDN

BC La w E n fo rc e m e n t D i ve r s i t y N e t wo rk

> pre s e nt s a s p e aki ng e ng a g e m e nt

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16

RATION $175

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The BC LEDN is a sub-committee of the British Columbia Association of Chiefs of Police with representation from the following participating agencies.

Volume 16 Issue 4 - July/August 2016

WHAT IS THE BC LAW
ENFORCEMENT DIVERSITY
NETWORK?

weapon. During her arrest, she was patted down and
seven fentanyl patches were found in her jacket
pocket. She was charged with possessing fentanyl for
the purpose of trafficking.

The British Columbia Law Enforcement Diversity
Network (BCLEDN) is a group of concerned and
motivated members of the law enforcement
community. Its goal is to champion diversity by
identifying contemporary global issues. This year, on
November 2, 2016, the BCLEDN is hosting
“Challenges in Modern Day Law Enforcement” at
the JIBC. They hope to see you there and encourage
members from other agencies not currently
represented on the committee to be a part of their
team. If you are interested please contact
lstewart@jibc.ca.
see
page 8

FENTANYL EXCLUDED: FAILURE
TO s. 10(b) ON INVESTIGATIVE
DETENTION WAS SERIOUS
R. v. Daley, 2016 ONCA 564
Two women, the accused and her
passenger, went to a Money Mart. The
accused went inside to pawn some
jewelry while the other woman waited
in the car outside. A store employee
called the police as the jewelry looked like photos of
stolen jewelry seen in a police flyer. When police
attended, the accused was detained in the store for
about 40 minutes. She was not advised of her right
to counsel and, in response to a question, told
police she had arrived in a car that was parked
outside.
Another officer approached the passenger (Stockton),
sitting in the accused’s car. When Stockton reached
into her purse for ID, the police officer saw a
bracelet that he thought resembled some of the
jewelry in the police flyer. He arrested Stockton and
searched the car. In it, he found two purses, which
he also searched. In one of the purses, police found
a flip knife. After the accused identified it as her
purse, she was arrested for possessing a prohibited

Ontario Superior Court of Justice
The accused submitted that her Charter
rights under ss. 8, 9, and 10(b) had been
violated and she sought the exclusion of
evidence under s. 24(2). The judge found
that s. 10(b) had been violated. “The police...knew
that she was supposed to be cautioned and read her
rights, and they did not do it,” said the judge. “Their
failure was patent, and there is no excuse for it.”
However, the judge did not conduct a s. 24(2)
analysis because the s. 10(b) violation, he held, did
not impugn the subsequent searches.
As for ss. 8 and 9 of the Charter, the judge
concluded there were no breaches. He found the
accused’s detention was not arbitrary, except to the
extent she was not advised about her right to
counsel. “In the circumstances of this case, 40
minutes is not so long a detention to be arbitrary,
given the pieces of jewelry, the number of them, and
the quality of the flyer that they were trying to
compare to,” he said. As for the search, it was not
conducted as an incident to the accused’s detention
inside the store. Rather, the police had sufficient
grounds to arrest the passenger and search the
purses incidental to the passenger’s arrest. The
accused was convicted of possessing fentanyl for the
purpose of trafficking.

Ontario Court of Appeal
The accused argued that the
trial judge erred in requiring a
causal connection between the
s. 10(b) violation and the
obtaining of evidence. As well, she alleged the judge
mistakenly concluded that her ss. 8 and 9 rights had
not been violated. She contended that the evidence
ought to have been excluded under s. 24(2).

s. 10(b) > s. 24(2)
The Court of Appeal agreed that the judge erred in
requiring a causal connection between the s. 10(b)
breach and the obtaining of the evidence. Rather, a

PAGE 9

Volume 16 Issue 4 - July/August 2016

“In this case, there was a clear temporal
and contextual connection between the
violation of the [accused’s] s. 10(b)
rights, the discovery of the knife in her
purse, and, ultimately, the discovery of
the fentanyl.”

What the trial judge said about
the purse search:
“[W]as it reasonable for [the officer] to search [the
accused’s] purse incidental the arrest? I find that it
was reasonable for him to search her purse incidental
to the arrest of Ms. Stockton.

s. 24(2) analysis is triggered by a demonstration that
the evidence was “obtained in a manner” that
infringed a Charter right. “This does not require that
the violation cause the police to obtain the
evidence, only that there be a nexus or connection
between the two,” said the Appeal Court. “In this
case, there was a clear temporal and contextual
connection between the violation of the [accused’s]
s. 10(b) rights, the discovery of the knife in her
purse, and, ultimately, the discovery of the fentanyl.”

s. 9 - Arbitrary Detention
As for the trial judge’s ruling that the accused’s
detention was not arbitrary, there was no basis on
which to make an objective assessment on the issue
of whether the 40 minute detention was justified.
There was no evidence regarding the number of
pieces of jewelry, the police flyer was not introduced
into evidence and the evidence about the activities
of the police officers in the store was limited to the
officers’ testimony that they spent an unspecified
portion of their time in the store comparing an
unspecified number of pieces of jewelry to the flyer.
“In our view, the lack of explanation regarding what
occurred at the store coupled with the failure of the
officers to give the [accused] her s.10 (b) rights over
the course of 40 minutes made the detention
arbitrary,” said the Court of Appeal.

s. 8 - Unreasonable Search
The trial judge did not err in finding that the search
of the accused’s purse was reasonable as an incident
to the passenger’s lawful arrest. The officer did not
arrest the passenger Stockton so that he could search
the accused’s car. Instead, once the police officer
saw a piece of jewelry in the passenger's purse that
resembled a piece in the police flyer, he had
reasonable grounds to believe she committed an
offence and to make the arrest.

It was located immediately beside where Ms. Stockton
was sitting, and so was within easy reach. It was open,
affording easy access to her if she wanted to hide
stolen property, something small, like jewelry.The purse
was not then within Ms. Daley’s possession or control.
The search was incidental to the offence for which
Ms. Stockton was arrested, he was entitled, as a matter
of law, to seek additional evidence with respect to
possession of stolen property, which is the offence for
which Ms. Stockton was arrested, and also to look for
possible weapons or tools of escape accessible to her.”
excerpt from voir dire ruling

The accused’s purse was immediately beside the
passenger and it was open. “The police officer was
entitled to search it for evidence of the offence,
weapons, or means of escape – i.e. for contraband
that Ms. Stockton might have disposed of there,” said
the Court of Appeal. “Thus, the search was
connected to the reason for the arrest.”

24(2) - Exclusion of Evidence
Since the trial judge did not conduct a s. 24(2)
analysis, the Court of Appeal did so. It found the
nature of police conduct favoured exclusion. “The
breach of s. 10(b) was ‘patent’ and unexplained – in
an area of law that is not complex or unsettled.
These were not minor or inadvertent breaches of ss.
9 a n d 1 0 ( b ) . Th e r e w e r e n o e x t e n u a t i n g
circumstances to explain or attenuate the
seriousness of the officers’ conduct. Overall, the
police conduct in this case demonstrated a disregard
for well-established Charter rights.”
As for the impact of the breach on the accused’s
Charter protected interests, it favoured exclusion as
well. “The impact on the [accused’s] Charter rights
was substantial. The arbitrary detention was not

PAGE 10

Volume 16 Issue 4 - July/August 2016

“The conduct of the police in failing to
provide the [accused] with her s. 10(b)
rights over the course of 40 minutes
while they conducted an investigation
was serious.”
fleeting. The [accused] was detained for 40 minutes
and never advised of her right to counsel.
Furthermore, it is at least possible that what followed
– talking to Ms. Stockton in the [accused's] car, her
arrest, the search of the car and purse, the discovery
of the knife, and the [accused’s] own arrest – might
not have occurred but for this violation.”
Finally, the truth-seeking function of the criminal
trial process favoured admissibility. “Society has an
interest in the prosecution of persons who possess
narcotics for the purpose of trafficking. Fentanyl is a
very dangerous drug. The exclusion of this reliable
and objective evidence would defeat the
prosecution’s ability to prove the case against the
[accused] and would undermine the truth-seeking
function of the justice system.”
After balancing the three s. 24(2) factors, the Court
of Appeal excluded the evidence. “The conduct of
the police in failing to provide the [accused] with
her s. 10(b) rights over the course of 40 minutes
while they conducted an investigation was serious,”
said the Court of Appeal. “The impact on the
[accused’s] Charter-protected rights was substantial.
In our view, these factors outweigh” the truthseeking function of the criminal trial process. The
accused’s appeal was allowed, the fentanyl was
excluded and the accused’s conviction was quashed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional facts taken from Ontario
Superior Court of Justice voir dire ruling.

Note-able Quote
“What is the difference between an obstacle and an
opportunity? Our attitude toward it. Every
opportunity has a difficulty, and every difficulty has
an opportunity.” - J. Sidlow Baxter

STANDARD FIELD SOBRIETY
TESTING TESTIMONY NOT
EXPERT EVIDENCE
R. v. Parada, 2016 SKCA 102
At 12:30 am a police officer stopped
the accused after observing her
vehicle drive over the centre line, go
over the shoulder line, and move back
over the centre line of the roadway.
The officer noted the accused was having trouble
extracting her driver’s licence and he could smell a
strong odour of alcohol. When asked if she had been
drinking, the accused indicated that she had drank
three beers. The officer formed the opinion the
accused had alcohol in her body and, since he did
not have an approved screening device with him,
read a demand to the accused for her to perform
sobriety tests.
The officer, certified to administer sobriety tests, had
the accused perform the horizontal gaze nystagmus
test, the walk-and-turn test and the one-leg stand
test. After the tests were conducted, the officer
formed the opinion that the accused had committed
an offence under s. 253 of the Criminal Code. The
accused was arrested, taken to the police station and
breath tests were obtained resulting in readings of
150 mg% x 2. She was charged with impaired
driving and driving over 80 mg%.

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BY THE BOOK:
Alcohol/Drug Testing: Criminal Code
Testing for presence of alcohol or a drug
s. 254 (2) If a peace officer has reasonable
grounds to suspect that a person has alcohol or
a drug in their body and that the person has,
within the preceding three hours, operated a
motor vehicle ... or had the care or control of a motor
vehicle ..., whether it was in motion or not, the peace officer
may, by demand, require the person to comply with
paragraph (a), in the case of a drug, or with either or both
of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests
prescribed by regulation to enable the peace officer to
determine whether a demand may be made under
subsection (3) or (3.1) and, if necessary, to accompany
the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the
peace officer’s opinion, will enable a proper analysis to
be made by means of an approved screening device and,
if necessary, to accompany the peace officer for that
purpose.

Saskatchewan Provincial Court
The judge concluded that the officer’s
evidence concerning the physical
coordination tests was not “expert
testimony” and therefore the Crown was
not required to follow the statutory procedures for
expert evidence under s. 657.3 of the Criminal
Code. In the judge’s view, s. 254(2) provides that a
“peace officer” has the power to demand an
approved screening device test or physical
coordination tests. If a person fails an approved
screening device test, the Crown is not required to
call an expert to explain how the approved

screening device works or the significance of a pass,
warn, or fail reading. The judge determined that the
physical coordination tests were no different. If
Parliament intended the physical coordination tests
to be carried out by an expert, they would have
called the peace officer an expert as was done in the
case of an “evaluating officer” (aka. drug recognition
expert) in s. 254(3.1). The accused was convicted of
driving over 80 mg%.

Saskatchewan Court of Queen’s Bench
The accused appealed his conviction
arguing, among other things, that the
testimony related to the standard field
sobriety tests was expert opinion
testimony. However, the appeal judge opined that
the trial judge correctly determined that the officer’s
testimony about the sobriety test results was not
expert evidence. The officer’s evidence was used
only to determine if he had reasonable grounds to
believe the accused had committed an offence
under s. 253 within the previous three hours and
could therefore demand a breath sample under s.
254(3). The trial judge did not rely on the officer’s
estimations as to what the breathalyzer readings
would be nor did he use his testimony to determine
whether the accused was impaired. Sobriety tests
under s. 254(2) is an alternative to using an
approved screening device, neither of which
requires qualification as an expert. The accused’s
appeal was dismissed.

Saskatchewan Court of Appeal
The accused appealed his
conviction again arguing, in
part, that the officer’s evidence
about the sobriety tests was
expert evidence such that it was subject to an expert
evidence voir dire (aka. a Mohan inquiry - R. v
Mohan, [1994] 2 SCR 9).

“Section 254(2) is clear that a “peace officer” may demand that a suspected impaired
driver perform the sobriety tests. There are no special qualifications or training needed
for an officer to be properly authorized by the Criminal Code to conduct an investigation
under this first stage of the scheme.”
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BY THE BOOK:
Evaluation of Impaired Operation (Drugs
and Alcohol) Regulations: Criminal Code
Physical Coordination Tests
2 The physical coordination tests to be
conducted under paragraph 254(2)(a) of the
Criminal Code are the following standard field
sobriety tests:
(a) the horizontal gaze nystagmus test;
(b) the walk-and-turn test; and

How the Accused Performed
Horizontal gaze nystagmus test
The accused scored six out of six. The officer testified that
a score of four out of six would mean it is highly likely the
person has a blood alcohol level greater than 0.10, and a
score of six out of six would make the likelihood higher.

Walk-and-turn test
The accused scored seven out of eight in the walk-andturn test. A fail is a score of two out of eight. The accused
made several missteps, took the wrong number of steps,
and used her arms for balance.

One-leg stand test
The accused scored four out of four in the one-leg stand
test, a fail score.

(c) the one-leg stand test.

Results

Peace Officer Opinion Evidence
Generally, opinion evidence is inadmissible unless it
falls in one of three exceptions:

• Expert opinion evidence: An expert performs
the function of providing the judge and jury with
a ready-made inference which the judge and jury
are unable to draw due to the technical nature of
the subject matter. This evidence is an exception
to the general rule against opinion evidence
because the expert witness has specialized
knowledge, skill, or experience and is needed to
assist the trier of fact to form a proper conclusion.
Admissibility of expert evidence depends on four
criteria: (1) relevance; (2) necessity in assisting the
trier of fact; (3) the absence of any exclusionary
rule; and (4) a properly qualified expert.

• Layperson opinion evidence: “Lay witnesses”
can give opinion evidence on issues that do not
require special knowledge and where it is
virtually impossible to separate the facts from the
inferences based on those facts. This could
include such things as the identification of
handwriting, persons and things, apparent age,
the bodily plight or condition of a person, the
emotional state of a person, the condition of
things, certain questions of value, estimates of
speed and distance, and whether someone was
intoxicated, as it is not such an exceptional
condition as would require a medical expert to
diagnose it. Admissibility of layperson opinion

The officer testified that if a person fails one test out of
three there is a 65%–68% chance that person’s blood
alcohol level is 0.10 or more. This percentage rises to 80%
if two tests out of three are failed.

evidence depends on whether: (1) the witness has
personal knowledge of observed facts; (2) the
witness is in a better position than the trier of fact
to draw the inference; (3) the witness has the
necessary experiential capacity to draw the
inference; and (4) the opinion is a compendious
mode of speaking (the witness could not as
accurately, adequately, and with reasonable
facility describe the facts he or she is testifying
about).

• Certification by statute and/or regulations:
For example, impaired driving provisions in the
Criminal Code and the Regulations allow for a
peace officer to give opinion evidence.

Impaired Driving Scheme
In this case, the Court of Appeal ruled that the
evidence of a peace officer relating to standard field
sobriety tests did not constitute expert opinion
evidence necessitating a Mohan voir dire. First, the
impaired driving statutory scheme does not require
that a peace officer be qualified as an expert
witness. An officer is authorized to require drivers to
perform physical coordination tests under s. 254(2)
(a) and the results of the physical coordination tests
may be used to provide reasonable grounds for
arrest and a demand for a breath test under s. 253(3)

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on an approved instrument. “It would be contrary to
the apparent purpose ... to then require the Crown to
qualify the arresting officer as an expert witness to
explain how he or she utilized the directions given
by Parliament to make the impaired driving
investigation,” said Justice Herauf speaking for the
Court of Appeal. “This would effectively weaken the
ability of police and prosecutors to investigate and
prosecute impaired drivers.” He continued:
It is important to note that there are certain
limitations in the Criminal Code and the
common law that are aimed at preserving a
defendant’s right to a fair trial. Section 254(2)
only authorizes the peace officer to conduct the
three tests prescribed under s. 2 of the
Regulations, namely, the “horizontal gaze
nystagmus” test, the “walk-and-turn” test, and
the “one-leg stand” test. The restriction to these
three tests is presumably designed to help ensure
that the driver’s Charter rights are interfered with
minimally and shows that Parliament is satisfied
that the science underlying the tests support their
use.
[...]
Section 254(2) is clear that a “peace officer” may
demand that a suspected impaired driver
perform the sobriety tests. There are no special
qualifications or training needed for an officer to
be properly authorized by the Criminal Code to
conduct an investigation under this first stage of
the scheme. The regulations are specific as to
what coordination tests shall be completed, and
the performance by the driver may be used to
enable the officer to determine whether a further
demand may be made. It is not until this second
stage of the scheme (under ss. 254(3) or
254(3.1)) that the officer must be a “qualified
technician” or an “evaluating officer” to
determine the driver’s blood alcohol content or
determine impairment by drug or combination
of drug and alcohol. This implies that Parliament
did not intend to require an officer to have any
kind of special training or knowledge to perform
the sobriety tests and be qualified to testify to its
results. ... [references omitted, paras. 34-36]

Complete case available at www.canlii.org

R. v. Poirier, 2016 ONCA 582 (CanLII)
The police received information from
five confidential informers that the
accused was a drug addict actively
dealing in heroin, methamphetamine,
and oxycodone. The information
indicated that the accused stored significant
quantities of drugs in plastic baggies in his rectum,
only briefly removing the drugs to make a sale. On
the basis of this and other information, police sought
a general warrant under s. 487.01 of the Criminal
Code that would, after police received information
that the accused was in possession of a large
quantity of heroin or crystal meth, authorize his
detention until the drugs could be recovered from
his rectum. After receiving a tip from one of their
confidential sources that the accused was in
possession of heroin, crystal methamphetamine,
cocaine, and other substances, and that the drugs
were packaged to be inserted in his rectum, the
warrant was executed.
The accused was arrested at
1:32 pm and transported to
the police station. He was
strip searched in an opendoor room, which was
inadvertently recorded by a video camera. He was
read the terms of the warrant and spoke to a lawyer.
He was placed in a “dry cell”, which had no running
water and a covered sink and toilet. He was
handcuffed to the bars of the cell such that he could
sit or lie down on a bench next to the cell door, but
only reach as low as his chest. About 21 hours later,
the police placed oven mitts on his hands and
secured them with duct tape. He had more freedom
of movement but was still prevented him from
accessing his rectal area. He remained handcuffed
but was no longer chained to the bars of the cell.

The officer did not need to be qualified as an expert
and therefore a Mohan voir dire was not necessary.
The accused’s appeal was dismissed.

GENERAL WARRANT MAY
AUTHORIZE BEDPAN VIGIL

The accused subsequently asked to be taken to the
washroom and at 11:53 am passed two packages in
only a small amount of watery stool. Each package
contained 28 grams of crystal methamphetamine.
He said that was all he was carrying. Without a
significant bowel movement, the officers did not

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BY THE BOOK:
General Warrant: Criminal Code
Information for General Warrant
s. 487.01 (1) A provincial court judge ... may
issue a warrant in writing authorizing a peace
officer to, subject to this section, use any
device or investigative technique or procedure
or do any thing described in the warrant that
would, if not authorized, constitute an unreasonable search
or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing
that there are reasonable grounds to believe that an
offence against this or any other Act of Parliament has
been or will be committed and that information
concerning the offence will be obtained through the use
of the technique, procedure or device or the doing of
the thing;
(b) the judge is satisfied that it is in the best interests of
the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of
Parliament that would provide for a warrant,
authorization or order permitting the technique,
procedure or device to be used or the thing to be done.
Limitation
(2) Nothing in subsection (1) shall be construed as to
permit interference with the bodily integrity of any
person.

...
believe him. He later had two more bowel
movements, one containing 28 grams of heroin and
the other containing heroin, cocaine, and Dilaudid
pills. The last bowel movement occurred some 30
hours after his initial detention. Satisfied there were
no more drugs inside the accused, his handcuffs
were removed and he was moved out of the dry cell.
He was told he would be charged with possessing
crystal methamphetamine, heroin, cocaine and
Dilaudid for the purpose of trafficking. He was then
brought before a justice for the first time after
spending a total of 43 hours in police detention.

Ontario Superior Court of Justice
The accused argued that the general
warrant was unlawful and that he had
been subject to arbitrary detention and
imprisonment under s. 9. As well, he
submitted that the manner in which the bedpan vigil
was carried out violated his rights under s. 8, and
that his right to security of the person had been
violated under s. 7. He sought the exclusion of
evidence under s. 24(2).
The police said they detained the accused in the
manner they did because they did not want him to
be able to remove the drugs from his rectum and
perhaps swallow them or otherwise destroy or
conceal them. The door to the cell was left open so
that officers monitoring the accused could enter
quickly if needed so as to prevent the destruction of
evidence, or to check on his medical condition. The
judge found the accused’s Charter rights had not
been breached. The accused was convicted of
possessing heroin (1.5 ounces), cocaine (7 grams),
and crystal methamphetamine (2 ounces) for the
purpose of trafficking and simple possession of
hydromorphone (Dilaudid). He was sentenced to 10
years in prison.

Ontario Court of Appeal
The accused contended that a
general warrant could not be
issued for a bedpan vigil
because a bedpan vigil is not a
search; it is a detention. As well, the general warrant
purported to authorize non-compliance with s. 503
of the Criminal Code which requires that an accused
person be taken before a justice “without
unreasonable delay and in any event within a period
of 24 hours”.
He also suggested that the warrant was executed in
an unreasonable manner contrary to s. 8 of the
Charter. Further, he asserted that the detention
jeopardized his right to life and security of the
person under s. 7 because the monitoring of his
medical condition was inadequate. He again sought
the exclusion of the drugs under s. 24(2) of the
Charter.

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“[A] bedpan vigil search is a search
within the meaning of s. 8 of the
Charter. A general warrant issued
under s. 487.01 can authorize a bedpan
vigil search. The fact that detention of
the individual is necessary to conduct a
bedpan vigil search does not, in itself,
make the warrant invalid.”

What the Warrant said:

General Warrant
Justice Weiler, authoring the Court of Appeal’s
unanimous judgment, found that a bedpan vigil was
a search that could be authorized by a general
warrant:
[A] bedpan vigil search is a search within the
meaning of s. 8 of the Charter. A general warrant
issued under s. 487.01 can authorize a bedpan
vigil search. The fact that detention of the
individual is necessary to conduct a bedpan vigil
search does not, in itself, make the warrant
invalid. [para. 49]

And further:
In this case, I would hold that the requirements
of s. 487.01(1) were met. The issuing judge was
satisfied that there were reasonable grounds to
believe that the [accused] had trafficked drugs;
given the issuance of the warrant and the harm
to society from illicit drug trafficking, it can be
inferred he was satisfied that the second
requirement was also met; finally, no other
provision in the Criminal Code or any other Act
o f Pa r l i a m e n t p r ov i d e s f o r a wa r ra n t ,
authorization or order permitting a bedpan vigil
search. [para. 30]

A s. 487.01 warrant “includes doing what is
reasonable necessary to carry out the search, and
may include detention. The length and nature of
detention required must take into consideration the
nature of the search to be conducted and the
necessity to conduct that type of search,” said Justice
Weiler. “I would hold that the fact that a bedpan
vigil search takes time and involves the detention of
the individual while the search is carried out does
not make it any less a search.”

1. When one of five proven, reliable Confidential Sources
referred to in this Application provides information that
[the accused] is currently in possession of a large
supply of Heroin and/or Crystal Methamphetamine,
Officers of the Sarnia Police will locate [the accused] at
the first opportunity outside of a dwelling residence
and immediately place him under arrest at that time for
possession for the purpose of trafficking Heroin and/or
Crystal Methamphetamine.
2. [The accused] will be brought to the Sarnia Police
Station. The warrant will be shown and explained to
[the accused].
3. [The accused] will be given an opportunity to contact
his legal counsel.
4. [The accused] will be taken to a cell where his actions
will be constantly monitored by officers of the same
sex.
5. [The accused] will be given the opportunity to do one
of the following:
i) Voluntarily, in the presence of Officers of the same
sex, remove the package of Heroin and/or Crystal
Methamphetamine from his rectum. If [the accused]
does voluntarily remove only a single package from
inside of his rectum, [the accused] will still be
required to provide a bowel movement which will
satisfy the Officer’s belief that there are no more
drugs inside of his rectum. This is due to the
information provided by all Sources with respect to
the amounts of drugs and multiple packages that [the
accused] will conceal up inside of his rectum at all
times, in order to ensure that all of the drugs have
been removed or vacated from inside of [the
accused]’s rectum.
ii) Voluntarily have a bowel movement, in the presence
of Officers of the same sex, significant enough to
dislodge the package of Heroin and/or Crystal
Methamphetamine from inside of his rectum, or
enough to satisfy Officer’s monitoring that no
further packages exists within his rectum.
6. Should [the accused] refuse to cooperate with the
provisions outlined in the terms and conditions found
in Appendix “A”, then [the accused]’s detention shall
continue until he has a bowel movement, significant
enough to satisfy the Officer’s monitoring to remove
the package of Heroin and/or Crystal
Methamphetamine or, to have a bowel movement
significant enough to satisfy the Officer’s monitoring
that no packages exists within the rectum of [the
accused].
The warrant authorized police action from
November 20, 2012 to December 19, 2012.

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“[A] bedpan vigil search meets the criteria for a general warrant set out in s. 487.01(1)
and s. 487.01(2) and does not constitute interference with bodily integrity.”
As for whether a bedpan vigil interferes with the
“bodily integrity of any person”, a limitation set out
in the general warrant provisions, the Court of
Appeal found it did not. A bedpan vigil is passive in
nature and does not involve an invasive procedure,
nor were the police attempting to collect bodily
samples containing personal information relating to
the accused:

Appearance Before a Justice: Criminal Code

Taking Before Justice
s. 503(1) A peace officer who arrests a person
with or without warrant ... shall cause the
person to be detained in custody and, in

[A] bedpan vigil search meets the criteria for a
general warrant set out in s. 487.01(1) and s.
487.01(2) and does not constitute interference
with bodily integrity. [para. 48]

accordance with the following provisions, to
be taken before a justice to be dealt with
according to law:

s. 503 Criminal Code

(a) (where a justice is available within a period of twentyfour hours after the person has been arrested by or

The Court of Appeal did, however, find the general
warrant defective because it did not account for s.
503 of the Criminal Code. Section 503(1) requires a
peace officer who arrests a person, with or without a
warrant, to bring the person before a justice, where a
justice is available, without unreasonable delay or in
any event within 24 hours of arrest. The provisions of
s. 503 are mandatory and cannot be overridden by
the terms of a general warrant, which in this case
purported to authorize detaining the accused
indefinitely without bringing him before a justice:
Compliance with s. 503 is not simply a matter of
form. Nor does it matter that the [accused] may
not likely have been released by a justice of the
peace while the bedpan vigil search was being
conducted. If the police had complied with
s. 503, the manner in which the [accused]
continued to be detained would have been
subject to court supervision. The [accused’s]
detention would have changed from being a
detention pursuant to the execution of the
general warrant to a court monitored detention
that ensured the ongoing protection of the
[accused’s] Charter rights.

BY THE BOOK:

delivered to the peace officer, the person shall be taken
before a justice without unreasonable delay and in any
event within that period, and
(b) where a justice is not available within a period of
twenty-four hours after the person has been arrested by
or delivered to the peace officer, the person shall be
taken before a justice as soon as possible,
unless, at any time before the expiration of the time
prescribed in paragraph (a) or (b) for taking the person
before a justice,
(c) the peace officer or officer in charge releases the
person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that
the person should be released from custody, whether
unconditionally under subsection (4) or otherwise
conditionally or unconditionally, and so releases him.

telephone. Moreover, a justice can remand an
arrested individual to prison for up to three days
at the request of the prosecutor under s. 516 of
the Code. “Prison” is defined in s. 2 of the Code
as including a “lock-up,” and therefore the cells
at the police station would appear to come
within that definition. The police could have
telephoned a justice of the peace and asked for
the [accused] to be remanded into their custody
at the police station for up to three days, or until
the [accused] had expelled the drugs from his
rectum, whichever was sooner. [paras. 58-59]

The valid investigative purpose that the bedpan
vigil search serves is not undermined by
compliance with s. 503. As the Crown
recognized, it would have been open to the
police to take the [accused] before a justice by

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Volume 16 Issue 4 - July/August 2016
Since the general warrant was defective on the s.
503 basis, it did not authorize the search carried out
in this case.

Search Incident to Arrest
For a warrantless search incident to arrest to be a
lawful search, the Crown must show:
1. the accused’s arrest was lawful;
2. the search was for a valid objective related to
the arrest such as the discovery and
preservation of evidence; and
3. the search was executed in a reasonable
manner.
Here, Justice Weiler found the first and second
requirements were met:

• Lawful arrest: The police had reasonable and
probable grounds to arrest the accused given the
information they had received from their
confidential informers that he was in possession of
a large quantity of drugs.

• Valid Objective: The search was conducted in
pursuit of valid purposes connected to the arrest,
including protecting evidence from destruction at
the hands of the arrestee, and discovering
evidence which could be used at trial. The police
had reasonable and probable grounds to believe
the bedpan vigil would afford evidence of the
offence for which the accused was arrested. The
police had reliable information from their
informers that the accused’s practice was to secret
the drugs he sold in his rectum and, importantly,
the police had also been informed that the drugs
had been packaged for insertion into his rectum.
The crucial link between the location and purpose
of the search incident to arrest and the grounds for
the arrest was therefore present. The police must
have reasonable and probable grounds to believe
the bedpan vigil search will afford evidence of the
offence for which the accused was arrested as
well as reasonable and probable grounds to arrest.
So, even if a bedpan vigil could be conducted
incident to arrest, the search in this case was not
carried out in a reasonable manner. The manner in

R. v. Poirier Timeline
Date/Time

Action

November 20

General Warrant granted

December 5

General Warrant executed

1:32 pm

Accused arrested
Accused transported to police station and strip
searched.

2:10 pm

Accused placed “dry cell”. He was handcuffed to
the bars in his cell.

December 6

Accused still under detention

11:21 am

Oven mitts placed over accused’s hands and
secured with duct tape.

11:53 am

Accused passes two packages:
• 28 grams of crystal methamphetamine
• 28 grams of crystal methamphetamine

1:32 pm

Accused passes one package:
• 28 grams of heroin

8:10 pm

Accused passes one package:
• 14 grams of heroin
• 7 packets of heroin each weighing 0.6 grams
• 1 gram of cocaine
• 8 Dilaudid pills each weighing 8 mg
• two packets of cocaine each weighing 3.5 grams

December 7

Accused brought before a Justice 43 hours after
his arrest

Times taken from 2016 ONCA 582 & 2014 ONSC 3117.

which the search was carried out did not have
regard for the accused’s personal dignity as much as
possible, or for medical concerns specific to him:
• The strip search violated the accused’s right to
privacy. It was not conducted in a private area, but
an area where one could see into the room; it was
inadvertently video recorded. Further, rather than
proceeding incrementally so as to ensure that the
accused was not completely undressed at any one
time, the accused was completely naked for a
period of time.

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Volume 16 Issue 4 - July/August 2016
• The bedpan vigil was carried out in an
unreasonable way. The accused was handcuffed to
the bars of his cell for the first 21 to 22 hours of
his detention. This use of physical constraint was
not proportionate to the objective, nor did it strike
an appropriate balance between the need for
effective law enforcement and the accused’s
interests in privacy and dignity. A lesser restriction
(oven mitts and duct tape) proved equally
effective at preventing the accused from removing
or consuming the drugs, and allowed him greater
freedom of movement.
• The accused was lodged in his cell in long johns
and only given his track pants to wear over top
after a day had gone by. He had no proper bed,
and, initially, no bedding. Only after he
complained of being cold, likely due to his
withdrawal symptoms, was he given a blanket.
• The police knew the accused was an addict.
When he began to show symptoms of withdrawal,
the police made no provision for measures to ease
his discomfort, such as having a doctor assess him
for prescription medication or provide him with
ordinary Tylenol. The police failed to minimize
the accused’s discomfort during his detention.
• Believing that the accused potentially had large
quantities of heroin and crystal methamphetamine
stored in his rectum, they had a duty to take
reasonable steps to ensure that his safety and
security were not compromised as a result of the
nature of the search. He was not advised that if he
felt unwell or wished to see a doctor he could
and, when he did ask to see a doctor, no effort
was made to comply with his request.

s. 24(2)
Having found ss. 7, 8 and 9 Charter breaches, the
Court of Appeal excluded the drugs under s. 24(2)
because its admission into evidence would bring the
administration of justice into disrepute. The
accused’s appeal was allowed, his convictions were
set aside and acquittal’s were entered on all counts.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
“Success is much more a matter of courage than
ability.” - Joe Segal

EVEN IF RIGHTS BREACHED,
DIGITAL PHOTOS ADMISSIBLE
UNDER s. 24(2)
R. v. Balla, 2016 ABCA 212
As part of an investigation into dial-adope drug trafficking, the police
executed a search warrant under s. 11
of the Controlled Drugs and
Substances Act (CDSA) at an
apartment. The search warrant did not refer to a
digital camera or images that might be retrieved
from one but authorized the search for and seizure
of:
“Cocaine, weigh scales, packaging materials,
score sheets, cash, electronic communication
devices, and documents relating to the
ownership / occupancy”.
In the accused’s bedroom, police found a “score
sheet”, five cellular telephones, a bullet-proof vest
plate, ammunition, machetes, various receipts in his
name, plastic baggies , 0.2 grams of powder cocaine
and a digital camera. The
digital camera contained a
memory card with many
pictures, including photos of
weapons (or imitations) and
him posing in the apartment
with various weapons (or
imitations) including an AK-47 looking firearm. He
also posed with a handgun and there was a picture
of a handgun with its serial number scratched off. An
“AK-47 looking weapon” was found in the
apartment and a handgun was found in the trunk of
a car associated to the accused. In the bedroom
belonging to another target of the investigation,
police seized a significant amount of cash, a gun
magazine, magic mushrooms, oxycodone and
marijuana. In the common areas of the apartment
police found a digital scale, marijuana, oxycodone
pills and more packaging. The accused was charged
with drug and weapons offences.

PAGE 19

Volume 16 Issue 4 - July/August 2016

Alberta Court of Queen’s Bench
The judge found that a "pure" digital
camera was not the same as a cellular
telephone, which also has the ability to
take photographs. “It appears that a
person should not have an expectation of the same
level of privacy in a digital camera, given that ... a
digital camera does not have or retain the
biographical core of personal information that they
maintain on a computer or smartphone,” said the
judge. “The digital camera retains images, or
‘documents,’ nothing more. It is an electronic photo
album.” The judge found the language of the warrant
would include the digital camera and the
“documents” contained in it. The judge concluded
there was no s. 8 Charter breach and, even if there
was, he would not have excluded the photographs
under s. 24(2). He noted the uncertainty in the law
at the time as to whether a police officer executing a
search warrant that permits the seizure and search of
“electronic devices, and documents relating to the
ownership/occupancy”. The police believed on
reasonable grounds that the search was authorized
by the warrant. Plus, the officer did not have the
benefit of Supreme Court of Canada jurisprudence
that has since been issued. The accused was
convicted on 13 counts related to drug trafficking
and weapons offenses.

“[A] police officer cannot just shrug her
shoulders and walk away. The officer
must decide one way or the other what
her authority allows. While the police
must comport themselves with integrity
and must manifest the rule of law by
complying with the Charter and the law
generally, they have to exercise streetlevel judgment, often and routinely.”
entitled, by operation of law under the warrant, to
examine the camera and its contents. The police
were entitled to believe that they were acting under
s. 11 of the CDSA. “It should not be forgotten that
‘police officers have a duty to enforce the law and
investigate crimes’,” said the Court of Appeal. It
continued:

Alberta Court of Appeal
The accused argued, in part,
that the examination of the
camera’s contents by police,
which occurred while they were
exercising a valid search warrant, was an
unreasonable search and seizure under to s. 8 of the
Charter. In his view, the examination of the camera
was not authorized by the warrant and was therefore
warrantless. Further, he asserted that the evidence of
the images should have been excluded under s.
24(2).
The Court of Appeal saw no need to address whether
the examination of the camera was an unreasonable
search. Instead, it found that even if there was a s. 8
Charter breach, the evidence was admissible under
s. 24(2). The police were not acting in bad faith and
were not negligent in their opinion that they were

PAGE 20

So a police officer cannot just shrug her
shoulders and walk away. The officer must
decide one way or the other what her authority
allows. While the police must comport
themselves with integrity and must manifest the
rule of law by complying with the Charter and
the law generally, they have to exercise streetlevel judgment, often and routinely. ...
This case is not, of course, a case where the
officer had little time to reflect. But in focusing
on the degree of alleged departure from warrant
authority for the purposes of s 24(2) of the
Charter, it is pertinent to note that the warrant
here also provided the police officers effecting
this search with a reasoned basis to believe that
they had the authority to review the contents of
the camera, howsoever mistaken. The warrant
was, indeed, relied on by the police in their
evidence. The warrant authorized the search for
and seizure of: “Cocaine, weigh scales,
packaging materials, score sheets, cash,
electronic communication devices, and
documents relating to the ownership /
occupancy of [specified address]”.
The Crown submits that the warrant provided
authority to seize the camera itself. No real
dispute arises on that argument based on what
the police could reasonably have believed. The

Volume 16 Issue 4 - July/August 2016

Crown goes on to contend, however, that the
camera content on its memory card was a
“document” for the purposes of this contention.
Assuming, without deciding, that a photograph
in a frame depicting the [accused] inside that
residence with the photo sitting in the open on a
shelf in the residence, would constitute a
document, it would then be arguable that such a
photograph would be a document “relating to
the ownership/occupancy of” the address.

admission of the photographs. Although the officer
agreed at trial that the warrant was not “specifically
for the camera”, he said that it was his
understanding that the search warrant authorized the
police to “look into that camera”. As the Court of
Appeal noted, “there is no reason to think that the
police intentionally opted to step past the legal
authority they could have obtained. This was a
technical mistake at worst even if related to
authority.” As for the impact of the accused’s
Charter-protected interests, it did not warrant
exclusion. Finally, society’s interest in the
adjudication of the case on its merits favoured
inclusion. “Exclusion of the evidence here would
contradict the truth seeking function of the
administration of justice in the context of the
dangerous combination of drugs and weapons, and
would be the consequence of what in the old days
might have been called the blunder of the
policeman,” said the Court of Appeal.

As for whether the officer could infer that there
was probably relevant evidence on the camera
as to their investigation within the meaning of s
11 of the CDSA (quite apart from whether that
evidence would have met the warrant definition
as to occupancy), the reasonableness and
genuineness of police beliefs based upon the
grounds in evidence would be assessed on a
“practical, non-technical, and common sense
basis” and the totality of the circumstances by a
court from the shoes of the police officer.
[references omitted, para. 34-37]

The Court of Appeal went on to agree with the trial
judge’s s. 24(2) conclusion and upheld the

The accused’s appeal was dismissed.
Complete case available at www.canlii.org

Friday, September 23, 2016
12:00 PM Shotgun Start
Beach Grove Golf Club in Tsawwassen
Followed by Dinner & Prizes
Texas Scramble Format (4-Person Teams)
Inter-Agency Competition for
Peace Officers
Mail, email or fax your entry forms to:
Rick Stewart
BC Law Enforcement Memorial
c/o Abbotsford Police Department
2838 Justice Way, Abbotsford, BC V2T 3P5
Fax: 604-859-4812 or email: memorial@abbypd.ca

Entry Fee: $110 – includes green fee & dinner
PAGE 21

www.BCLEM.ca

3RD ANNUAL
BRITISH COLUMBIA LAW ENFORCEMENT
MEMORIAL GOLF TOURNAMENT

BRITISH COLUMBIA LAW ENFORCEMENT MEMORIAL

In memory of those
who gave their lives
in the service of
British Columbia
and its citizens

1:00 PM SUNDAY, SEPTEMBER 25, 2016
HOSTED BY THE VANCOUVER POLICE DEPARTMENT AND DELTA POLICE DEPARTMENT

CEREMONY AT BROCKTON OVAL, STANLEY PARK, VANCOUVER, BC

Law Enforcement participants to form up at HMCS Discovery at 10:30 AM
CONTACTS:
Sergeant Major James Pearson
778-837-1537
james.pearson@vpd.ca
•
Lorne Pike
604-690-1744
lpike@deltapolice.ca

BCLEM.CA

FOLLOW US ON

Volume 16 Issue 1 - January/February 2016

Volume 16 Issue 4 - July/August 2016

2015 POLICE REPORTED CRIME
In July 2016 Statistics Canada
released its “Police-reported
crime statistics in Canada,
2015” report. Highlights of this
recent collection of crime data
include:

Police-Reported Impaired Driving Offences
Province

Rate

Impaired Driving
Offences

Rate change
2014 to 2015

SK

575

6,519

-5%

PEI

386

264

-6%

AB

314

13,189

-9%

NS

281

2,653

-7%

NF

261

1,376

-12%

• The total crime rate increased +3%. This includes
a violent crime rate rise of +2% and a property
crime rate rise of +4%.

BC

249

11,652

-9%

NB

238

1,795

+5%

Source: Statistics Canada, 2016, “Police-reported crime statistics in
Canada, 2015, Catalogue no. 85-002-X,released on July 20, 2016.

MB

217

2,811

0%

QC

184

15,199

0%

ON

111

15,280

0%

• There were 1,863,675 crimes (excluding traffic)
reported to Canadian police in 2015; this
represents 70,063 more crimes reported when
compared to 2014.

Police-Reported Crime Severity Indexes

T=Total Crime Severity Index
V=Violent Crime Severity Index
NV=Non-Violent Crime Severity Index

YK
T-183.6
V-207.7
NV-174.4

NWT
NU

T-319.0
V-357.7
NV-304.3

T-270.2
V-380.5
NV-229.5

BC

AB

SK

MB

T-94.7
V-83.0
NV-98.8

T-102.3
V-96.5
NV-104.2

T-135.8
V-134.8
NV-135.9

T-104.3
V-135.9
NV-92.6

NF
T-65.6
V-65.2
NV-65.2

QC
ON

PEI

T-55.7
V-65.8
NV-51.9

T-49.7
V-40.8
NV-52.8

T-50.6
V-59.2
NV-47.4

NS
NB

The Crime Severity Index (CSI) is another measure of police-reported crime.
Each offence is assigned a weight, derived from sentences handed down by
criminal courts. The more serious the average sentence, the higher the offence is
weighted. The weighted offences are then summed and divided by the population.
An overall CSI has been created as well as a violent CSI and non-violent CSI.

PAGE 24

T-63.0
V-60.4
NV-63.8

T-61.9
V-67.5
NV-59.8

Volume 16 Issue 4 - July/August 2016

Police-Reported Crime Rates per 100,000 population

YK
23,6053
0%

NWT
44,316
+1%

NU
32,495
+4%

NF
5,793
+4%

Canada
5,198
+3%

BC
7,844
+3%

AB
7,957
+12%

SK
11,178
+6%

MB
8,161
+5%

ON
3,547
0%

QC
3,387
-3%

NB
4,933
+10%

Homicide
There were 604 homicides reported, 84 more than
the previous year. Ontario had the most homicides
at 174, followed by Alberta (133), British Columbia
(95) and Quebec (77). The Yukon and PEI reported
one (1) homicide each while Nunavut reported two
homicides followed by Newfoundland with three
(3). As for provincial or territorial homicide rates, the
Northwest Territories had the highest rate (11.34 per
100,000 population) followed by Nunavut (5.42),
Saskatchewan (3.79), Manitoba (3.63) and Alberta
(3.17). As for Census Metropolitan Areas (CMA’s),
Regina, SK had the highest homicide rate at 3.30.
The Canadian homicide rate was 1.68.
Top CMA Homicide Rates per 100,000

PEI
4,141
-12%
NS
4,970
-9%

Canada’s Top Ten Reported Crimes
Offence

Number

Theft Under $5,000 (non-motor vehicle)

488,540

Mischief

274,829

Administration of Justice Violations

175,341

Break and Enter

159,338

Assault-level 1

156,688

CMA

Rate

CMA

Rate

Regina, SK

3.30

Windsor, ON

1.81

Disturb the Peace

104,129

Saskatoon, SK

3.22

Kingston, ON

1.80

Fraud (excluding identity fraud)

94,396

Winnipeg, MB

2.72

London, ON

1.57

Theft of Motor Vehicle

78,849

Thunder Bay, ON

2.48

St. Catherines-Niagara, ON

1.56

Impaired Driving

72,039

Saint John, NF

2.36

Guelph, ON

1.53

Halifax, NS

1.91

Barrie, ON

1.41

Uttering Threats

62,845

PAGE 25

Volume 16 Issue 4 - July/August 2016

Robbery

Top Ten CMA Robbery Rates per 100,000

In 2015 there were 22,080 robberies reported,
resulting in a national rate of 62 robberies per
100,000 population. Manitoba had the highest
robbery rate followed by Saskatchewan, Alberta and
British Columbia.

Police-Reported Robberies
Province/
Territory

Rate

Robberies

Rate change
2014 to 2015

MB

127

1,642

+6%

SK

86

978

+5%

AB

81

3,404

+23%

BC

78

3,651

+7%

NWT

59

26

+30%

ON

55

7,636

-1%

YK

53

20

-24%

NU

51

19

-2%

QC

49

4,030

NF

35

NS

CMA

Rate

CMA

Rate

Winnipeg, MB

178

Toronto, ON

76

Thunder Bay, ON

149

St. John’s, NL

73

Saskatoon, SK

131

Brantford, ON

60

Regina, SK

101

Halifax, NS

59

Montreal, QC

82

Ottawa, ON

58

Break and Enter
In 2015 there were 159,338 breakins reported to police. The national
break-in rate was 444 break-ins per
100,000 people. Nunavut had the
highest break-in rate (1,633) followed
by the Northwest Territories (1,195).

Police-Reported Break-ins
Province/
Territory

Rate

Break-ins

Rate change
2012 to 2013

-1%

NU

1,633

603

-2%

186

+17%

NWT

1,195

527

+14%

34

318

+13%

SK

830

9,407

+9%

NB

20

154

+4%

YK

802

300

+40%

PEI

11

16

-43%

MB

684

8,842

+17%

CANADA

62

22,080

+5%

AB

656

27,517

+34%

BC

643

30,133

0%

NF

485

2,558

+1%

NB

444

3,346

+19%

QC

395

32,665

-8%

PEI

343

502

+2%

NS

340

3,202

-13%

ON

288

39,736

-1%

CANADA

444

159,338

+4%

• Winnipeg, MB had the highest CMA
rate for robbery in Canada (178),
+7% higher than its 2014 rate. Quebec
City, QC had the lowest rate (15). Thunder
Bay, ON reported a jump of 42% in its robbery
rate. Saint John, NB (+34%), Kingston, ON
(+31%) and Trois Rivieres, QC (+30%) also saw
high double digit rate increases.
• Six CMAs reported declines in robberies of -10%
or more: Saguenay, QC, (-30%), Quebec City,
QC (-28%), Greater Sudbury, ON (-19%),
Sherbrooke, QC (-17%), St. Catherines-Niagara,
ON (-16%) and Saskatoon, SK (-10%).

PAGE 26

Volume 16 Issue 4 - July/August 2016

PART VI AUTHORIZATION NOT
REQUIRED FOR HISTORICAL
TEXT MESSAGES
R. v. Jones, 2016 ONCA 543
As part of their investigation into the
possession and trafficking of firearms,
the police obtained a production order
under s. 487.012 of the Criminal Code
directed at Telus seeking, among other
things, any incoming or outgoing text messages on a
particular account associated with a target. Telus
provided the historical text messaging information,
which included an exchange about the potential sale
of a handgun between two phones. One phone was
associated with the target and the other was
allegedly used by the accused. Both phones,
however, were listed under other names.
Relying in part on this text message exchange,
police obtained a Criminal Code Part VI wiretap
authorization for a number of phones associated
with the suspects. Intercepted communications were
then used to support an additional Part VI wiretap
authorization. Search warrants were also granted
and executed by the police. The searches resulted in
marijuana trafficking and proceeds of crime charges
against the accused. Firearm charges were also laid
on the basis of the text messages obtained under the
production order.

Ontario Court of Justice
The accused, along with the target,
challenged the production order. He
contended that if the police wanted to
obtain information about their text
messages from service providers, they needed a Part
VI wiretap authorization, not a production order. The
accused submitted that his privacy interest in the text
messages was self-evident while the Crown
suggested he had no privacy interest in them.

circumstances. The judge also
rejected the contention that the
police required a Part VI
authorization for the production
of the text messages. She was of
the opinion that a production
order was the proper
mechanism to access the cell
phone records and text
messages. The accused was
convicted of several firearm and
drug trafficking offences and he
was sentenced to five years and
seven months in prison, less time served.

Ontario Court of Appeal
The accused argued, among
other things, that the trial judge
erred in concluding that he did
not have standing to challenge
the production order. He also submitted that the
judge erred in upholding the use of a production
order to obtain the Telus phone records.

Standing
In this case, the Court of Appeal found the trial judge
did not err in concluding that the accused had not
established a reasonable expectation of privacy in
the Telus records. He did not testify or lead evidence
about his subjective expectation of privacy. Nor was
the Telus account or phone in his name. He did not
use this phone, nor was he alleged to have used it.
Further, there was nothing to suggest that Telus was
contractually bound to the accused to keep any of
the text messages confidential.

Production Order v. Wiretap Authorization
Although the standing issue was dispositive of the
appeal, Justice MacPherson also agreed with the
judge that a Part VI authorization was not needed to
obtain historical text messages:

The judge found the accused had no standing to
argue his s. 8 Charter rights were breached. In her
view, there was no evidence presented that the
accused had either a subjective or objective
reasonable expectation of privacy in the

PAGE 27

To fall under Part VI, there needs to be a
p r o s p e c t ive c o m p o n e n t t o t h e p r iva t e
communications, otherwise the communications
are not being intercepted. This is because the

Volume 16 Issue 4 - July/August 2016

Ontario Court of Justice

“A Part VI authorization is not required
for the search and seizure of historical
text messages.”
word “intercept” suggests an interference
between the place of origin and the destination
of the private communication. There is no such
interference when obtaining historical text
messages stored on a phone or a service
provider’s server.
... I would not describe the production of
historical text messages as surveillance or an
interception. It is, quite simply, a search and
seizure of a historical record of text messages
sent and received in the past. [references
omitted, paras. 30-31]

The Court of Appeal concluded that “a Part VI
authorization is not required for the search and
seizure of historical text messages.”
Complete case available at www.ontariocourts.on.ca

NO PRIVACY INTEREST IN SENT
TEXT MESSAGES ON RECIPIENT’s
PHONE
R. v. Marakah, 2016 ONCA 542
Police launched an investigation into
persons who had legally purchased a
number of firearms over a short period
of time. One of these persons,
Winchester, had legally purchased 45
firearms over a six-month period. As part of the
investigation, police received information from a
confidential informer implicating the accused. The
police obtained search warrants for four locations –
three associated with Winchester and one associated
with the accused. When police executed the
warrants, they arrested Winchester and seized his
iPhone. When police entered the accused’s
residence, he grabbed his Blackberry phone but a
police officer knocked it out of his hand and arrested
him. Both phones were forensically searched and
were found to contain text messages between the
accused and Winchester that clearly implicated
them in gun trafficking.

The accused challenged the search
warrant at his residence and the search
of both his and Winchester’s cell phones.
The judge found s. 8 breaches in relation
to the search of the accused’s residence and his
cellphone and excluded the evidence obtained from
those searches under s. 24(2) of the Charter. As for
the search of Winchester’s cellphone, the judge
dismissed the application. He found that the
accused did not have standing to argue his s. 8 rights
were breached in relation to Winchester’s phone.
Although he accepted that the accused had a
subjective expectation of privacy in the text
messages he authored and sent to Winchester, this
privacy expectation was not objectively reasonable.
When he sent the test messages he had no control
over what would happen to them.
“I accept that the sender of a text message has a
reasonable expectation of privacy in its contents
after it has been sent but before it reaches its
intended destination,” said the judge. “This would
include text messages stored in a service provider’s
data base. Once the message reaches its intended
recipient, however, it is no longer under the control
of the sender. It is under the complete control of the
recipient to do with what he or she wants. In my
view, there is no longer any reasonable expectation
of privacy in the sender.” The accused was
subsequently convicted on two counts of trafficking
in firearms, conspiracy to traffic in firearms,
possession of a loaded restricted firearm, and
possession of a firearm without a valid license. He
was sentenced to nine years’ imprisonment, less
credit for pre-trial custody.

Ontario Court of Appeal
The accused appealed his
convictions alleging that the
trial judge erred in concluding
that he had no s. 8 Charter
standing to challenge the search of Winchester’s cell
phone. In his view, his subjective expectation of
privacy in the text messages was objectively
reasonable even after the messages were received by
Winchester. He sought their exclusion under s.
24(2).

PAGE 28

Volume 16 Issue 4 - July/August 2016

“Like all other Charter rights, s. 8 protects
people, not places. The right to challenge
the legality of a search depends upon the
accused establishing that his personal
privacy interests are engaged.”
Standing
Justice MacPherson, delivering the majority’s
decision, summarized the issue of s. 8 Charter
standing as follows:

substance, not of form. references omitted,
paras. 26-32]

In this case, the majority concluded that the accused
had no standing to bring a s. 8 challenge concerning
the search of Winchester’s cell phone. The accused
had no ownership in or control over Winchester’s
phone and there was no obligation of confidentiality
between the two. Nor did the subject matter of the
c o m m u n i c a t i o n s t o u ch o n t h e a c c u s e d ’s
biographical core nor was it of an intimate nature:
The facts of this case demonstrate that ... the
ability to control access to the information is of
central importance to the assessment of the
privacy claim. We are not talking about the
[accused’s] privacy interest in the contents of his
own phone, or even the contents of a phone
belonging to someone else, but which he
occasionally used. We are also not dealing with
deeply personal, intimate details going to the
[accused’s] biographical core. Here, we are
talking about text messages on someone else’s
phone that reveal no more than what the
messages contained – discussions regarding the
trafficking of firearms.

Section 8 of the Charter protects the right to be
secure from unreasonable search and seizure. It
is framed in a way that attempts to strike a
balance between important societal interests and
an individual’s privacy interests.
Like all other Charter rights, s. 8 protects people,
not places. The right to challenge the legality of
a search depends upon the accused establishing
that his personal privacy interests are engaged.
Section 8 does not protect all privacy interests,
though. It protects only a reasonable expectation
of privacy ...

This is far from being a question of whether the
[accused] had “exclusive control” over the
content. He had no ability to regulate access and
no control over what Winchester (or anyone) did
with the contents of Winchester’s phone. The
[accused’s] request to Winchester that he delete
the messages is some indication of his awareness
of this fact. Further, his choice over his method
of communication created a permanent record
over which Winchester exercised control.

Accordingly, an accused will only have standing
to challenge a search or seizure when he or she
has a reasonable expectation of privacy.
Standing is not automatic. ...
Further, the decision as to whether an accused
has a reasonable expectation of privacy must be
made without reference to the conduct of the
police during the impugned search. The legality
or illegality of the police search is irrelevant to
the determination of standing. The court must
first determine the threshold question of whether
the accused has a reasonable expectation of
privacy. If one is found, the accused then has
standing to challenge the reasonableness of the
search and seizure.
It is well-established that to determine whether
an accused has a reasonable expectation of
privacy, courts must take a contextual approach
and consider the totality of the circumstances.
This is true whether it is a personal, territorial or
informational privacy interest at stake. The
“totality of the circumstances” test is one of

It has never been the case that privacy rights are
absolute. Not everything we wish to keep
confidential is protected under s. 8 of the
Charter. In my view, the manner in which one
elects to communicate must affect the degree of
privacy protection one can reasonably expect.

“[A]n accused will only have standing to
challenge a search or seizure when he or
she has a reasonable expectation of
privacy. Standing is not automatic.”
PAGE 29

Volume 16 Issue 4 - July/August 2016
In this case, the application judge properly
focused on the factors of control, access and
lack of confidentiality. [paras. 63-66]

Editor’s note: The majority of the Ontario Court of
Appeal in R. v. Marakah, 2016 ONCA 542 disagreed
with the recent British Columbia Court of Appeal
majority decision in R. v. Pelucco, 2015 BCCA 370.
The majority in Pelucco found that an accused had
standing to challenge the search and seizure of
electronic messages on someone else’s electronic
device because a sender will ordinarily have a
reasonable expectation that a text message will
remain private in the hands of its recipient. As Justice
MacPherson in Pelucco stated:

And further:
In most cases – but not all – ... a sender controls
the content and recipient of a message.
However, once the message is received, the
recipient becomes the controller and the
sender’s privacy interest will generally disappear.
[para. 78]

Since the accused lacked standing to argue a s. 8
breach, there was no need to address s. 24(2). The
accused’s appeal was dismissed and his convictions
upheld.

There is, in my view, a lack of empirical
evidence to support a conclusion that senders of
text messages have a presumptively reasonable
expectation, from an objective standpoint, that
their text messages will remain private in the
hands of the recipient. In fact, there are many
examples of behaviour in text messaging (and in
other forms of communication) that suggest that
senders are alive to the fact that their
communications may no longer be private once
sent or made. [para. 71]

A Second View
Justice LaForme, in dissent, concluded
that the accused did have a reasonable
expectation of privacy to challenge the
search of Winchester’s phone:
We are required to consider whether people in
the [accused’s] situation can generally maintain
a reasonable expectation of privacy in text
messages sent to another person. The nature of
the information that such communications might
reveal and the nature of interests implicated
support the [accused’s] position. The absence of
control does not negate a reasonable
expectation of privacy and any reliance on the
absence of control reintroduces the discredited
risk analysis. Relevant normative considerations
suggest that people should be able to maintain a
reasonable expectation of privacy in text
messages generally. The [accused’s] position is
the practically preferable option. As such, in my
view, the application judge erred in concluding
that the [accused] had no standing to bring a s. 8
Charter challenge in connection with the search
of Winchester’s cell phone. [para. 184]

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In Justice LaForme’s view, the search was
unreasonable, it breached s. 8 and the evidence
should have been excluded under s. 24(2). He
would have allowed the appeal, excluded the text
messages and entered acquittals on all charges.
Complete case available at www.ontariocourts.on.ca

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UFNBDB

PAGE 30

Volume 14 Issue 6 - November/December 2014

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