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officers in Canada.
#
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IN MEMORIAM
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January 21, 2015, 42-year-old RCMP Constable* David* Wynn!"#$%&'()*<3"#30)*5"6#$%"#
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BC Commercial Vehicle Safety and
#
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Enforcement (CSVE) Officer Toni Kristinsson was killed in a vehicle crash north of

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Valemount, BC.
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causing him fatal injuries. The driver of the other vehicle
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Officer Kristinsson had served with CVSE for three years. He is
survived by his wife, son, and sister.

04'J=E1<'E>3'J<EK'JEF4

Source: Officer Down Memorial Page available at www.odmp.org/

“They	
 Are	
 Our	
 Heroes.	
 We	
 Shall	
 Not	
 Forget	
 Them.”
inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

Be Smart & Stay Safe

Volume 15 Issue 1

Volume 15 Issue 1 - January/February 2015

Highlights In This Issue

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

CAPE 2015

4

Mr. Big: Probative Value v. Prejudicial Effect?

6

Supreme Court Carves New Rules For Mr. Big
Confessions

9

Instruction To Jury On False Confessions May Be
Necessary

15

Jeopardy Did Not Change: No Right To Re-Consult
Counsel

17

Safety Search Exercised In Reasonable Manner

18

Preventative Arrest In Domestic Incident Justified

21

Dynamics Of Situation Considered In Assessing
Grounds For Arrest

23

Grounds For Arrest To Be Viewed Cumulatively, Not
In Piecemeal Fashion

27

JIBC	
 Police	
 Academy

Grounds For Breath Demand Must Be Assessed In
‘Totality’

29

See Course List here.

Arrestee’s Behaviour Prevented s. 10 Advisement: No
Breach At That Time

36

BCACP/CACP

New K9 Rules For BC

38

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

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

2015	
 Police	
 Leadership	
 Conference

April	
 12-14,	
 2015
“Leading	
 with	
 Vision	
 and	
 Values”
This is Canada's largest police leadership
conference providing an opportunity for delegates
to hear leadership topics discussed by worldrenowned speakers. Click here

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

CAPE	
 2015
coming	
 soon

More info on p. 4

Graduate Certificates
Intelligence Analysis
or
Tactical Criminal Analysis
www.jibc.ca

see
page
40

Volume 15 Issue 1 - January/February 2015
The presentation lab: learn the formula behind
powerful presentations.
Simon Morton.
Hoboken, NJ: Wiley, (2014).
HF 5718.22 M384 2014

WHATʼS	
 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
most recent acquisitions which may be of interest to
police.

The 15 invaluable laws of growth: live them and
reach your potential.
John C. Maxwell.
New York,NY: Center Street, (2012).
BF 637 S4 M386 2012
Do the next right thing: surviving life's crises.
Frank O'Dea with John Lawrence Reynolds.
Toronto, ON: Viking, (2013).
BF 637 S4 O34 2013
Everybody writes: your go-to guide to creating
ridiculously good content.
Ann Handley.
Hoboken, NJ: Wiley, (2014).
HF 5415.1265 H358 2014
Keeping the record straight: introductory
accounting for not-for-profit organizations.
Toronto, ON: Certified General Accountants
Association of Ontario, (2012).
HF 5686 N56 K447 2012
Lean for dummies.
Natalie Sayer and Bruce Williams.
Hoboken, NJ: Wiley, (2012).
HD 58.9 S29 2012
Now you see it: how the brain science of
attention will transform the way we live, work,
and learn.
Cathy N. Davidson.
New York, NY: Viking, (2011).
BF 321 D38 2011

Recruitment and selection in Canada.
Victor M. Catano, Willi H. Wiesner, Rick D. Hackett.
Toronto, ON: Nelson Education, (2013).
HF 5549.5 R44 R427 2013
Symptoms and signs of substance misuse.
Margaret Stark, Jason Payne-James, Michael ScottHam.
Boca Raton, FL: Taylor & Francis, (2014).
RC 564 S74 2015
Think smarter: critical thinking to improve
problem-solving and decision-making skills.
Mike Kallet.
Hoboken, NJ: Wiley, (2014).
HD 30.29 K35 2014
Turning learning into action: a proven
methodology for effective transfer of learning.
Emma Weber.
London; Philadelphia: KoganPage, (2014).
HD 58.82 W43 2014
Wait: the art and science of delay.
Frank Partnoy.
New York, NY: PublicAffairs, (2012).
BF 637 P76 P37 2012
What your boss really wants from you: 15
insights to improve your relationship.
Steve Arneson.
San Francisco, CA: Berrett-Koehler Publishers, (2014)
HF 5548.83 A76 2014
Why motivating people doesn't work ... and what
does: the new science of leading, energizing, and
engaging.
Susan Fowler.
San Francisco, CA: Berrett-Koehler Publishers, (2014)
HF 5549.5 M63 F69 2014

PAGE 3

Volume 15 Issue 1 - January/February 2015

CAPE 2015

Canadian Association of Police Educators
715 McBride Boulevard
New Westminster, BC

Effective & Defensible Training Through Collaboration
Conference: May 20-22, 2015
Pre-conference Workshop: May 19, 2015
The Canadian Association of Police Educators (CAPE) promotes excellence in law
enforcement training and education through the guidance of innovative research, program
development, knowledge transfer, network facilitation, and collaborative training
initiatives. In the changing landscape of police training many agencies are stretching their
resources to do more with less. The goal of the 2015 CAPE conference is to promote
discussion on hot topics in police training, highlighting collaboration as a mechanism to
achieve effective and defensible training within the current economic climate.
Sessions at the conference are designed to be short, fast-paced presentations followed by
facilitated group discussions, panel discussions, or question and answer sessions with
panelists to promote interaction and critical thinking. Innovations in police training in BC
will be showcased throughout the conference and scheduled updates from various
organizations and committees will promote collaboration.

PAGE 4

Volume 15 Issue 1 - January/February 2015

Canadian Association of Police Educators
Effective & Defensible Training Through Collaboration
Conference: May 20-22, 2015
Pre-conference Workshop: May 19, 2015
Presentation topics at the 2015 CAPE Conference include:
• Hot topics in police training:
✓ Mental readiness
✓ Two-tiered policing
✓ The Economics of policing

• Training for Vancouver’s Downtown East Side
• The JIBC continuum of training
• Assessing in the real world:
✓ Outcomes based assessment
✓ Reality-based training and assessment
✓ Blended learning: e-learning for outcomes based assessment

• Developing provincial standards:
✓ BC’s Certified Use of Force Instructor Course (CUFIC)
✓ BC’s Firearms working group
✓ Police Services Division – working towards provincial standards in BC

• Assessment Centre
• National Training Inventory
• Collaboration in Police Training
• BC’s Crisis Intervention and De-Escalation training
A limited-capacity pre-CAPE workshop on curriculum mapping will be offered where
participants will work directly with the BC Police Academy Curriculum Developer to
map their curriculum to the Police Sector Council National Framework of Competencies.
There will also be opportunities to network and exchange ideas in an informal setting.

cape-educators.ca
PAGE 5

Volume 15 Issue 1 - January/February 2015

MR.	
 BIG:	
 
PROBATIVE	
 VALUE	
 v.	
 
PREJUDICIAL	
 EFFECT?
R. v. Mack, 2014 SCC 58
About a month after the accused’s
roommate disappeared, the police
received a call from a friend claiming
that the accused had confessed to
killing his roommate and burning the
body. The police launched a Mr. Big operation and
obtained a wiretap authorization to intercept the
accused’s phone calls. The undercover Mr. Big
operation lasted four months, involved 30 scenarios,
and saw the accused paid about $5,000 for his work
with the organization, plus expenses. The Mr. Big
operation started with Ben, an undercover officer,
meeting the accused at a nightclub. A week later he
was asked to help repossess a vehicle for which he
was paid $200. Later, the accused was introduced to
“Mr. Big” but declined to speak about his missing
roommate. He was told that it was his choice to talk,
but refusing to speak meant he would remain on the
organization’s “third line”. The only way to advance
to the “first line” was by talking about his missing
roommate. The accused again refused, explaining
that “loose lips sink ships”.
Eventually, the accused told Ben he was willing to
do what it took to work with the organization. When
asked why he killed his roommate, he said his
roommate was “a liar, a thief, and a piece of shit
drug dealer.” He told Ben that he shot his roommate
five times with a .223 rifle— four times in the chest
and once in the back. He said there was “nothing
left” of the body and he took Ben to a fire pit on his
father’s property where he said he had burned it. A
few days later the accused was flown to meet with
Mr. Big. He described his roommate to Mr. Big as a
“crack head” and said he stole from his son’s piggy
bank. He again said he killed his roommate by

shooting him five times with a .223 rifle — four
times in the chest and once in the back. He added
that there had been a “big fire” at his dad’s place,
and that there was “nothing left” of the body. A week
later he was arrested and charged with first degree
murder. The police searched his father’s property
and found the victim’s remains in the fire pit that the
accused had shown Ben. Shell casings were also
discovered in the fire pit. These had been fired from
a rifle found in the accused’s apartment.

Alberta Court of Queen’s Bench
The Crown conceded that the wiretap
authorization it had obtained to intercept
the accused’s phone calls did not meet
the requirements of the Criminal Code
and therefore breached s. 8 of the Charter. The
Crown, however, did not adduce any of the
intercepted calls as evidence. The accused denied
killing his roommate and blamed another man for
the murder. This other man also claimed that the
accused had confessed to him about the killing. The
accused argued that the statements he made to the
two Crown witnesses were misinterpreted or untrue.
He said that his confessions made during the Mr. Big
operation should be excluded because the illegal
wiretap was used to design the undercover

“[A] Mr. Big confession will be excluded where its prejudicial effect outweighs its
probative value, or where it is the product of an abuse of process. In this context, the
confession’s probative value is a function of its reliability. Its prejudicial effect stems from
the harmful character evidence that necessarily accompanies its admission.”
PAGE 6

Volume 15 Issue 1 - January/February 2015
operation. Since the wiretap was so intertwined with
the Mr. Big operation, he suggested that that the
illegality of the authorization required excluding his
statements made to the undercover officers under s.
24(2) of the Charter.
The judge disagreed. He found the incriminating
statements the accused made to the undercover
officers had not been “obtained in a manner” that
violated any of his Charter rights. A jury went on to
convict the accused of first degree murder.

Justice Moldaver, writing the Supreme Court’s
opinion, concluded that the confessions in this case
would have been admissible under the Hart
framework because any prejudicial effect arising
from the Mr. Big confessions was easily outweighed
by their probative value.
As well, the confessions were not the product of an
abuse of process. The undercover officers did not
engage in any improper conduct. The accused had
not been presented with any overwhelming
inducements:

Alberta Court of Appeal

He had prospects for legitimate work that would
have paid even more than the undercover
officers were offering. Nor did the officers
threaten the [accused] with violence if he would
not confess. The most that can be said is that the
officers created an air of intimidation by
referring to violent acts committed by members
of the organization. But the [accused] was not
coerced into confessing. This much is evidenced
by the [accused’s] initial refusal to speak with
Ben and [Mr. Big] about [his roommate’s]
disappearance. Indeed, the undercover officers
explicitly made clear to the [accused] that he did
not have to speak with them about [his
roommate], and that he could remain in his
current role within the organization. None of the
undercover officers’ conduct approaches
abuse. [para. 36]

The accused contended that the
trial judge erred, among other
things, in concluding that s. 24(2)
was not engaged. This argument,
however, was rejected. The Court of Appeal found
the trial judge’s decision under s. 24(2) was entitled
to deference and there was no basis for interfering
with it. The accused’s appeal from his murder
conviction was dismissed.

Supreme Court of Canada
The accused again attacked,
in part, the trial judge’s s.
24(2) ruling. He wanted his
conviction overturned and a
new trial ordered.

Mr. Big Confessions
A seven member panel of the Supreme
Court noted that the accused did not
have the benefit of R. v. Hart, 2014 SCC
52, a decision in which a two-pronged
framework for assessing the admissibility of Mr. Big
confessions was developed:

7:0

s. 24(2) Charter
The Supreme Court upheld the trial judge’s ruling in
concluding that any connection between the
confessions and a Charter breach was insufficient to
engage s. 24(2). The confessions had not been
obtained in a manner that violated the accused’s
Charter rights. In describing the necessary
connection, Justice Moldaver stated:
Whether evidence was “obtained in a manner”
that infringed an accused’s rights under the
Charter depends on the nature of the connection
between the Charter violation and the evidence
that was ultimately obtained. The courts have
adopted a purposive approach to this inquiry.
Establishing a strict causal relationship between
the breach and the subsequent discovery of
evidence is unnecessary. Evidence will be

Under the Hart framework, a Mr. Big confession
will be excluded where its prejudicial effect
outweighs its probative value, or where it is the
product of an abuse of process. In this context,
the confession’s probative value is a function of
its reliability. Its prejudicial effect stems from the
harmful character evidence that necessarily
accompanies its admission. [para. 31]

PAGE 7

Volume 15 Issue 1 - January/February 2015

tainted if the breach and the discovery of the
impugned evidence are part of the same
transaction or course of conduct. The required
connection between the breach and the
subsequent statement may be temporal,
contextual, causal, or a combination of the
three. A “remote” or “tenuous” connection
between the breach and the impugned evidence
will not suffice. [reference omited, para. 38]

Whether or not there is a sufficient connection
between an alleged Charter breach and the evidence

to trigger s. 24(2) is a question of fact entitled to
considerable deference and will only be interfered
with on appeal where the trial judge has failed to
consider the proper factors or has made an
unreasonable finding. Here, the trial judge found the
tenuous causal connection between the s. 8 breach
and the confessions undermined the significance of
the temporal relationship. The Supreme Court
declined to interfere with this fact driven exercise.
The accused’s appeal was dismissed.
Complete case available at www.scc-csc.gc.ca

Mr. Big Confession

Probative
Value

Prejudicial
Effect

R. v. Mack, 2014 SCC 58: Prejudicial Effect v. Probative Value Grid
• the bad character evidence that accompanied the confessions was limited.
• none of the scenarios involved violence.
• the operation did not reveal prejudicial facts about the accused’s past
history.
• the accused’s involvement with the organization was primarily limited to
assisting with repossessing vehicles and delivering packages.
• probative value high.
• inducements provided by the undercover officers were modest.
• he was paid approximately $5,000 over a four-month period, at a time
when well-paying, legitimate work was readily available to him.
• he was not threatened by the officers.
• he was told, in his first meeting with “Mr. Big”, that he could decline to say
anything and remain on the organization’s “third line” — an option he
initially accepted.
• there was an abundance of evidence that was potentially confirmatory.
• his purported confessions to the other two men described the same motive
for the killing as his confessions to the undercover officers.
• They all made reference to burning the victim’s body.
• immediately after confessing to Ben, the accused led him to the firepit in
which the victim’s remains lay undiscovered
• shell casings fired from a gun found in the accused’s apartment were
found in the same firepit.
PAGE 8

Volume 15 Issue 1 - January/February 2015

SUPREME	
 COURT	
 CARVES	
 NEW	
 
RULES	
 FOR	
 MR.	
 BIG	
 
CONFESSIONS
R. v. Hart, 2014 SCC 52
The accused’s three-year-old twin
daughters drowned in a lake adjacent
to a park. He was the last person to
see them alive. He said he took them
to play on some swings when they
ran onto a dock. When one daughter fell into the
water, he panicked because he could not swim. He
ran back to his car and drove home to get his wife.
But he forgot about his other daughter, leaving her
on the dock. Upon returning to the park, both
daughters were found dead, floating in the lake
several hundred meters apart. The accused told
police he did not call for help using either of two
cell phones in his car because one did not have any
minutes on it and the other did not belong to
him. He also said he never thought of stopping at a
nearby restaurant or hospital for help instead of
driving all the way home to get his wife. He denied
drowning his daughters.
Convinced the accused had killed his daughters and
lied about it, the police questioned him again for
about eight hours some five weeks later. He again
denied killing the girls. Two weeks later though, he
contacted police and volunteered that he had been
untruthful. This time he said he had a seizure at the
park after he removed his daughters from the car.
When the seizure passed, he could see one of his
daughters “in the water.” His only thought was to
drive home to his wife. He said he had lied earlier
because he did not want to lose his driver’s licence
as a result of his epileptic seizures. With insufficient
evidence to charge him, the investigation went cold.
Two years later, the police targeted the accused in a
Mr. Big operation. They conducted several weeks of
“lifestyle” surveillance, revealing he was on
government assistance and socially isolated. He
rarely left home and, if he did, he was with his wife.
Undercover officers developed a relationship with
the accused, eventually employing him as a driver in
a trucking company. Undercover officers told him
they were part of a criminal organization, headed by
a “boss”. The accused participated in simulated

criminal activity with the officers, delivering trucks
that purportedly contained smuggled alcohol and
packages with stolen credit cards. He spent several
nights in hotels paid for by the undercover officers,
enjoyed frequent dinners, and was paid about
$4,470 over two months of work. He became fully
immersed in his new fictitious life, telling one officer
he loved him and that they were like brothers. One
night the accused confessed that he planned the
murder of his daughters and carried them out. The
operation continued over the next two months with
the importance of trust, honesty and loyalty within
the organization constantly being preached. It was
stated that those who were not trustworthy were met
with violence. On one occasion, an undercover
officer slapped another across the face in front of the
accused. As the operation built towards its climatic
meeting with Mr. Big, the accused was told of a
forthcoming “big deal” that would net him between
$20,000 and $25,000 if he participated. Later on, he
was shown $175,000 in cash, said to be a down
payment toward the impending deal.
The accused was told
that he would only be
allowed to participate if
M r. B i g g av e h i s
approval. They said the
organization performed
a background check and found a problem. He was
urged to be honest during the meeting with Mr. Big.
Mr. Big told the accused that there might be some
“heat” coming from the deaths of his daughters and
asked why he killed them. He replied that he had
suffered a seizure, but was told by Mr. Big not to
“lie.” After some further prodding by Mr. Big, the
accused confessed to killing his daughters because
he feared Child Welfare was going to take them
away and place them with his brother. When asked
how he did it, he said that they “fell” over the wharf
at the park. When pressed for more details, he
explained that he “struck” his daughters with his
shoulder and that they fell into the water. Two days
later the accused took an undercover officer to the
park and re-enacted how the drowning occurred. He
was later arrested and charged with two counts of
first degree murder. When allowed to make a phone
call, his first call for help went to one of the
undercover officers.

PAGE 9

Volume 15 Issue 1 - January/February 2015
In total, the accused participated in 63 scenarios
with undercover officers, travelled to Halifax,
Montreal, Ottawa, Toronto and Vancouver, stayed in
hotels, frequently dined in some of the finest
restaurants, and was paid $15,720 for his work. The
full cost of the Mr. Big operation was $413,268.

Newfoundland Supreme Court
The accused testified on a voir dire that
he worked for the fictitious criminal
organization because he was making
good money and was afraid of the
undercover officers. He denied making his first
confession and said that he had lied about the other
confessions because he was afraid of Mr. Big. The
accused argued his confessions ought to have been
excluded as evidence under s. 24(2) of the Charter.
He suggested that the intimidating and threatening
conduct of the officers was oppressive and breached
his rights under s. 7 (life, liberty and security of the
person). He also contended that this same conduct
rendered his confessions inadmissible under the
principled approach to the rule against hearsay
because the threatening police conduct made his
confessions unreliable.
The judge admitted the confessions as evidence. He
found that the accused had bonded with the
undercover officers, continually sought more work
from them, and was given a number of chances to
leave the operation but made no effort to do so. He
rejected the accused’s evidence that he felt
threatened and intimidated by the undercover
operatives. He was convicted on two counts of first
degree murder.

Mr. Big and the subsequent re-enactment of the
events on the wharf resulting from the Mr. Big
interview should have been excluded from evidence
at the trial. However, the first confession was
admissible and a new trial was ordered. Justice
Barry, in dissent, was of the view that the accused’s
right to silence was not triggered prior to
detention. Further, even if a “state control” test was
applicable, there was no s. 7 breach. The trial judge
found that the accused had numerous chances to
leave the operation but made no effort to do so.
Justice Barry would have also ordered a new trial but
for a different reason.

Supreme Court of Canada
The Crown appealed the
ordering of a new trial, arguing,
in part, that the trial judge did
not err in admitting the
accused’s confessions made
during the Mr. Big operation.

Mr. Big Confessions
Justice Moldaver, speaking for a five member
majority, first described the Mr. Big technique as
follows:

Newfoundland Court of Appeal
The accused again argued
that the confessions he made
during the Mr. Big operation
were inadmissible under s.
24(2) of the Charter because they were obtained in
breach of his right to silence under s. 7. A two
member majority found the accused was under
“state control” at the time of the confessions and
therefore his right to silence, which can extend
beyond situations where an individual has been
detained, was breached. The accused’s statement to

PAGE 10

The technique tends to follow a similar script in
each case. Undercover officers conduct
surveillance on a suspect in order to gather
information about his or her habits and
circumstances. Next, they approach the suspect
and attempt to cultivate a relationship. The
suspect and the undercover officers socialize
and begin to work together, and the suspect is
introduced to the idea that the officers work for a
criminal organization that is run by their boss —
“Mr. Big”. The suspect works for the criminal
organization and is assigned simple and
apparently illegal tasks — serving as a lookout,
delivering packages, or counting large sums of
money are common examples. As occurred in
this case, this stage of the operation can last for
several months.
As the operation wears on, the suspect is offered
increasing responsibility and financial
rewards. By flying the suspect across the country,
putting him up in hotels, and taking him to
expensive restaurants, undercover officers show

Volume 15 Issue 1 - January/February 2015
the suspect that working with the group provides
a life of luxury and close friendships. All the
while, the suspect is constantly reminded that
his or her ultimate acceptance into the group
depends on Mr. Big’s approval.

Justice Moldaver put the reliability concern this way:
The purpose of these operations is to induce
confessions, and they are carefully calibrated to
achieve that end. Over a period of weeks or
months, suspects are made to believe that the
fictitious criminal organization for which they
work can provide them with financial security,
social acceptance, and friendship. Suspects also
come to learn that violence is a necessary part of
the organization’s business model, and that a
past history of violence is a boast-worthy
accomplishment. And during the final meeting
with Mr. Big — which involves a skillful
interrogation conducted by an experienced
police officer — suspects learn that confessing to
the crime under investigation provides a
consequence-free ticket into the organization
and all of the rewards it provides.

Throughout the operation, the suspect is also
told that the organization demands honesty, trust
and loyalty from its members. An aura of
violence is cultivated to reinforce these values.
Officers teach the suspect that those who betray
the trust of the organization are met with
violence. They do this by telling the suspect that
the organization kills “rats,” or by exposing him
to simulated acts of violence perpetrated by
members of the organization against other
undercover officers as punishment for imagined
betrayals. ...
Once the stage is set, the operation culminates
in a meeting, akin to a job interview, between
the suspect and Mr. Big. Invariably during these
meetings, Mr. Big expresses concern about the
suspect’s criminal past and the particular crime
under investigation by the police. As the meeting
unfolds, it becomes clear that confessing to the
crime provides a ticket into the criminal
organization and safety from the police.
Suspects may be told that Mr. Big has conclusive
evidence of their guilt and that denying the
offence will be seen as proof of a lack of
trustworthiness. In another variation, suspects
are told that Mr. Big has learned from contacts
within the police that a prosecution for the
offence is imminent based on new evidence.
The organization offers to protect the target
through a variety of means — by offering to
eliminate a witness or by having someone else
confess to the crime — if the suspect confesses
to Mr. Big. Throughout the interrogation, any
denials of guilt are dismissed as lies, and Mr. Big
presses for a confession. [references omitted,
paras. 57-60]

It seems a matter of common sense that the
potential for a false confession increases in
proportion to the nature and extent of the
inducements held out to the accused. [para.
68-69]

As for the prejudicial effect, the evidence may show
a jury that the accused wanted to join a criminal
organization and that he participated in “simulated”
crimes that he believed were real. The prejudice
regarding bad character evidence was explained as
follows:
Bad character evidence causes two kinds of
prejudice. It causes “moral prejudice” by
marring the character of the accused in the eyes
of the jury, thereby creating a risk that the jury
will reason from the accused’s general
disposition to the conclusion that he is guilty of
the crime charged, or that he is deserving of
punishment in any event. And it causes
“reasoning prejudice” by distracting the jury’s
focus away from the offence charged, toward the
accused’s extraneous acts of misconduct (ibid.).

Dangers of Mr. Big
The majority noted that there are three inherent
dangers (or risks) associated with Mr. Big operations:
•
•
•

unreliable confessions,
prejudicial facts about the accused’s character,
and
the potential for police misconduct.

PAGE 11

When a Mr. Big confession is admitted, the
character evidence that accompanies it places
the accused in a difficult situation. In these
cases, the accused is often obliged, as a tactical
necessity, to testify in order to explain why he
falsely confessed to Mr Big. The character
evidence that has already been admitted is
damaging in this context because it shrouds the
accused with an aura of distrust before he or she

Volume 15 Issue 1 - January/February 2015
steps into the witness box. This distrust is
compounded when the accused asks the jury to
disregard his confession because he was lying
when he gave it. And all of this furnishes the
Crown with ample fodder for a forceful attack on
the accused’s credibility in cross-examination.
[references omitted, paras. 74-75]

prejudicial, and which do not result from abuse, are
admitted into evidence.”

New Common Law Rule

The majority also noted that Mr. Big operations can
become abusive, creating the risk of police
misconduct. The police may resort to unacceptable
tactics in their pursuit of a confession. “In
conducting these operations, undercover officers
often cultivate an aura of violence in order to stress
the importance of trust and loyalty within the
organization,” said Justice Moldaver. “This can
involve — as it did in this case — threats or acts of
violence perpetrated in the presence of the accused.
In these circumstances, it is easy to see a risk that
the police will go too far, resorting to tactics which
may impact on the reliability of a confession, or in
some instances amount to an abuse of process.”
To address these three concerns, the majority
developed a framework for determining the
admissibility of Mr. Big Confessions while attempting
to strike an appropriate balance between the
dangers posed by a Mr. Big operation and law
enforcements’ ability to investigate serious crime.
The two prong approach recognized a new common
law rule for admissibility, which included reliance
on the doctrine of abuse of process to address police
misconduct. “The purposes of this two-pronged
approach are to protect an accused’s right to a fair
trial under the Charter, and to preserve the integrity
of the justice system,” said Justice Moldover. “Those
are the ends that must ultimately be achieved. This
approach strives to reach them by ensuring that only
those confessions that are more probative than

“Where the state recruits an accused into
a fictitious criminal organization of its own
making and seeks to elicit a confession
from him, any confession made by the
accused to the state during the operation
should be treated as presumptively
inadmissible.”

Under the new rule for assessing admissibility, Mr.
Big confessions are presumptively inadmissible.
However, this presumption can be rebutted if the
Crown can establish, on a balance of probabilities,
that the probative value of the confession outweighs
its prejudicial effect.

Presumptive Inadmissibility. “Where the state
recruits an accused into a fictitious criminal
organization of its own making and seeks to elicit a
confession from him, any confession made by the
accused to the state during the operation should be
treated as presumptively inadmissible.” The majority
saw many benefits with the Crown having to
demonstrate the confession should be admitted:
•

The police design and implement Mr. Big
operations thereby creating the dangers of a
potentially unreliable confession and its
prejudicial character.

•

Having the burden of establishing admissibility,
the state “will be strongly encouraged to tread
carefully in how it conducts these operations.”

•

The onus will encourage better record keeping
of the operation such as recording key
interactions.

Probative Value v. Prejudicial Effect. If the Crown
can establish, on a balance of probabilities, that the
probative value of the confession (tending to prove
an issue) outweighs its prejudicial effect, then the
presumption of inadmissibility may be overcome.
The probative value of a confession will turn on an
assessment of its reliability while its prejudicial
effect flows from the bad character evidence that
must be admitted in order to put the operation and
the confession in context. If the Crown cannot
demonstrate that an accused’s confession is
admissible, the rest of the evidence surrounding the
Mr. Big operation becomes irrelevant and thus
inadmissible.

PAGE 12

Volume 15 Issue 1 - January/February 2015
In determining whether the probative value of
evidence outweighs its prejudicial effect, a “cost
benefit analysis” is required. Is the value of the
evidence worth its costs? The goal at this stage is for
a judge to decide whether the evidence should be
heard by the jury, and not whether it should be
accepted or acted upon. The probative value of a Mr.
Big confessions lies in its reliability. “A confession
provides powerful evidence of guilt, but only if it is
true,” said Justice Moldaver. “A confession of
questionable reliability carries less probative force,
and in deciding whether the probative value of a Mr.
Big confession outweighs the prejudicial effect of the
character evidence that accompanies it, trial judges
must examine its reliability.” The prejudicial effect is
measured through the spectre of moral and
reasoning prejudice. Moral prejudice arises because
the jury learns that the accused wanted to join a
criminal organization and committed a host of
“simulated crimes” believed to be real. Reasoning
prejudice creates the risk that the jury will be
distracted away from the actual charges before the
court.
Factors relevant to assessing the reliability of a Mr.
Big confession include the circumstances under
which it was elicited and confirmatory evidence.

Circumstances
A judge must first look at all the circumstances
leading to and surrounding the making of the
confession. This will include, but is not limited to:
•
•
•
•
•
•
•

The length of the operation;
The number of interactions between the police
and the accused;
The nature of the relationship between the
undercover officers and the accused;
The nature and extent of the inducements
offered;
The presence of any threats;
The conduct of the interrogation itself;
The personality of the accused, including their
age, sophistication, and mental health.
According to research, people with mental
illnesses or disabilities, and youth, present a
much greater risk of falsely confessing and will
raise greater reliability concerns.

Confirmatory Evidence
Next, the court should look to the confession itself
for confirmatory evidence, or markers of
reliability. This includes:
•
•
•

•

The level of detail contained in the confession;
Whether the confession leads to the discovery
of additional evidence;
Whether the confession identifies any elements
of the crime that had not been made public
(e.g., the murder weapon); or
Whether the confession accurately describes
mundane details of the crime the accused
would not likely have known had they not
committed it (eg. the presence or absence of
particular objects at the crime scene).

This test looks directly at the evidence. The greater
the concerns raised by the circumstances in which
the confession was made, the more important it will
be to find markers of reliability in the confession
itself or the surrounding evidence. The risk of
prejudice may be mitigated by excluding certain
pieces of particularly prejudicial evidence that are
unessential to the narrative. As well, trial judges can
give limiting instructions to the jury which may
reduce the prejudicial effect of the evidence.

Abuse of Process
The doctrine of abuse of process serves as a check
on police conduct. This inquiry focusses on police
behaviour in eliciting the evidence. A Mr. Big
operation that is abusive may, by itself, render a
confession inadmissible or allow for a stay of
proceedings. Thus, weighing the probative value and
prejudicial effect of the conviction may be
unnecessary. The onus will be on the accused to
establish an abuse of process.
There is no precise formula for determining when a
Mr. Big operation will become abusive, but a
confession becomes problematic when the will of an
accused is overcome and a confession is coerced.
Examples of coercive police tactics include physical
violence or threats of violence, or when an
accused’s vulnerabilities are preyed upon such as
mental health problems, substance addictions, or

PAGE 13

Volume 15 Issue 1 - January/February 2015
youthfulness. Other misconduct offending the
community’s sense of fair play and decency may
amount to an abuse of process and warrant the
exclusion of the statement.

Residual Discretion for Exclusion
The majority noted that it was no foreclosing the
possibility that a Mr. Big confession could be
excluded even where the new common law rule
would allow for the admission of it. Judges retain a
discretion to exclude evidence where its admission
would compromise trial fairness.

Exclusion In This Case
In this case, the majority excluded all
three confessions (including the reenactment) because their probative
value was outweighed by their
prejudicial effect. Their was serious doubt about
their reliability and no confirmatory evidence:
Each of them came about in the face of
overwhelming inducements. This calls into
question their reliability — and there is no
confirmatory evidence capable of restoring our
faith in them. As such, they carry little if any
probative value. On the other hand, the bad
ch a ra c t e r e v i d e n c e a c c o m p a ny i n g t h e
confessions carries with it an obvious and
serious potential for prejudice. In these
circumstances, the prejudicial effect of the
[accused’s] confessions outweighs their
probative value. [para. 13]

Same Result, Different Reasons
Justice Karakatsanis also agreed that the
confessions ought to have been excluded.
In her view, Mr. Big operations create
circumstances that compromise a
suspect’s autonomy, undermine a confession’s
reliability, and raise concerns about abusive state
conduct. She found the confessions breached the
principle against self-incrimination protected under
s. 7 of the Charter, which required an examination
of four factors: (1) coercion; (2) an adversarial
relationship between the accused and the state; (3)
the prospect that an unreliable confession would be
given; and (4) a concern that admitting the statement
would increase the likelihood of abusive conduct by
the state. She would then have excluded the
confessions under s. 24(2).
Complete case available at www.scc-csc.gc.ca

SIDEBAR
More on what the SCC said about Mr. Big
“When conventional investigations fail to solve

Having found the confessions inadmissible, there
was no need to determine whether there was an
abuse of process. The Crown’s appeal was dismissed.

A Similar View
Justice Cromwell agreed with the majority
on its legal framework for assessing the
admissibility of a Mr. Big confession, but
would not rule on the admissibility of the
confessions in this case. Instead, he would leave that
question for a judge to decide at the accused’s new
trial.

serious crimes, police forces in Canada have
sometimes used the ‘Mr. Big’ technique. A Mr.
Big operation begins with undercover officers
luring their suspect into a fictitious criminal
organization of their own making. Over the next
several weeks or months, the suspect is
befriended by the undercover officers. He is
shown that working with the organization
provides a pathway to financial rewards and
close friendships. There is only one catch. The
crime boss — known colloquially as ‘Mr. Big’ —
must approve the suspect’s membership in the
criminal organization.
The operation culminates with an interview-like
meeting between the suspect and Mr. Big. During
the interview, Mr. Big brings up the crime the
police are investigating and questions the suspect
about it. Denials of guilt are dismissed, and Mr.
Big presses the suspect for a confession. As Mr.
Big’s questioning continues, it becomes clear to
the suspect that by confessing to the crime, the
big prize — acceptance into the organization —
awaits. If the suspect does confess, the fiction
soon unravels and the suspect is arrested and
charged.” [para. 1-2]

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Volume 15 Issue 1 - January/February 2015

INSTRUCTION	
 TO	
 JURY	
 ON	
 
FALSE	
 CONFESSIONS	
 MAY	
 BE	
 
NECESSARY

repeatedly said he did not remember what
happened during the argument except for being very
angry. Eventually he said he was so angry he swung
a golf iron at the deceased and hit him on the head
with it. He was charged with manslaughter.

R. v. Pearce, 2014 MBCA 70
The victim of a homicide was found
face down on a sofa in his home. An
autopsy established that he had been
brutally beaten to death, likely with a
golf club. He had suffered at least 57
blows and was also stabbed, likely with the broken
shaft of a golf club. In the kitchen sink police
located a #4 iron and a #2 iron. Near the deceased’s
body police found the heads of a #3 iron and a
driver. The broken shafts of the golf clubs (one of
which was bloodied) were found elsewhere in the
residence. There was no obvious suspect(s) or
motive but the accused contacted police some five
months after the homicide. He was interviewed by
detectives. He said he was a friend of the victim and
casual sex partner, and he agreed to take a
polygraph. The polygraph examiner told detective’s
he believed the accused had nothing to do with the
victim’s death. Five days later the accused contacted
police and insisted he speak with them. He told
detectives that after the polygraph examination he
became upset because it had been mentioned the
deceased had AIDS. This, he claimed, caused him to
remember an argument with the deceased that he
thought he should share with the police. During the
interview he said he had fought with the accused.
He drew a map of where the argument ended (near
a sofa) and said, “I might’ve hit him here … I did
something really bad.”
The accused was immediately arrested for murder
because he had identified the exact location where
the deceased’s body was found, information that
was unknown to any member of the public except
for the killer. The accused was left alone for two
hours while detectives discussed what to do and to
arrange for a video-recording of an interrogation.
The detectives then began an interrogation that
lasted for just over two and one-half hours. The
accused repeated that he and the deceased had sex
followed by an argument when the deceased
revealed he had AIDS. He told police he felt
horrible, was angry, and “temporarily lost it.” He

Manitoba Court of Queen’s Bench
The accused testified he did not kill the
deceased and said his confession was
false. He told the jury he confessed for
three reasons: (1) he was emotionally
unstable; (2) he was confused because he
was under the influence of Tylenol 3; and (3) the
two police officers manipulated him into admitting
to something he did not do. Although the judge
charged the jury about the reliability of the
accused’s confession, he did not caution the jury
about the phenomenon of false confessions. The jury
returned a verdict of manslaughter and a seven-year
sentence was imposed.

Manitoba Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
conviction arguing that the trial
judge did not adequately instruct
the jury. In his view, the judge
failed to explain the phenomenon of false
confessions. He posited that false confessions do
occur despite being counterintuitive. The Crown, on
the other hand, contended that both counsel
addressed the jury on the question of whether the
accused falsely confessed which was sufficient. It
was the Crown’s position that the jury would have
understood that, although false confessions
sometimes occur, the issue for them to decide was
whether the accused’s confession might be false.
Justice Mainella, delivering the Court of Appeal’s
opinion, described the evidentiary strength of a
confession this way:

PAGE 15

A confession is a statement by an accused,
whether by words or assertive conduct, to a
person in authority, which the prosecutor seeks
to introduce as part of their case. The statement
can be either inculpatory, exculpatory, or
both. The statement can address all or some of

Volume 15 Issue 1 - January/February 2015

“A confession is like no other evidence. Our system of justice accepts that an accused
can be convicted solely on the basis of their own confession without any confirmatory
evidence of its truth. A confession is seen as such a powerful piece of evidence because
of the logic that an innocent person is unlikely to incriminate themselves.”
the material facts of the offence(s) the accused is
being tried on; it need not be a full admission of
guilt.

•

Historically an accused’s out-of-court statement
to a person in authority is called a confession
while a similar statement to someone who is not
a person in authority is called an
admission. That distinction is driven by the
application of the confessions rule, where an
accused’s statement to a person in authority is
presumptively inadmissible unless demonstrated
to be voluntary. The different terminology has
nothing to do with the potential probative value
of the statement. An admission may be more
incriminating in a given context than a
confession. For the purposes of my reasons I use
these two terms inter-changeably by reference to
the expression confession.

Jury Instructions

A confession is like no other evidence. Our
system of justice accepts that an accused can be
convicted solely on the basis of their own
confession without any confirmatory evidence of
its truth. A confession is seen as such a powerful
piece of evidence because of the logic that an
innocent person is unlikely to incriminate
themselves. [references omitted, paras. 48-50]

Justice Mainella, however, also acknowledged that
the phenomenon of false confessions is real. Even
confessions that may be found to be admissible
under the confessions rule may nonetheless be false.
Examples of false confessions that may survive the
voluntariness test under the confessions rule include:
•

•
•

A confession made, without external pressure,
for an ulterior purpose (notoriety, to relieve
guilt, illness or a disorder, or to protect another
person);
A confession made to escape the pressure of
police interrogation;
A confession resulting from persuasion of guilt
by a skillful interrogator; and

A confession resulting from inhuman or
degrading treatment by a person not in
authority.

An accused is entitled to a fair trial which includes a
properly instructed jury. With regards to an
admissible confession, a trial judge must “properly
instruct the jury that it is for them to decide, based
on all of the evidence, whether the confession was
actually made and whether it was true (i.e., the
weight, if any, to be given to it).” “Cautions are given
not because a jury is considered to be unintelligent,
but because they are uninformed about the problem
with the particular type of evidence,” said Justice
Mainella. “The education of a jury provided by a
judge’s caution serves two essential purposes: to
alert the jury to the potential danger of the evidence
in question, and also to provide assistance to the
jury with the necessary tools to evaluate the
evidence in their fact-finding function.” There is not,
however, an obligation to instruct a jury about false
confessions unless there is an air of reality to such a
claim. In this case, the accused recanted his
confession at trial. This recantation provided an air
of reality to his claim that he gave a false confession.
Justice Mainella then described the process as
follows:
When a claim of a false confession does have an
air of reality, in addition to outlining the theory
of the defence to the jury, the trial judge is
required to relate the essential evidence to the
claim of false confession so that the jurors may
appreciate the value and effect of that evidence
in arriving at a just conclusion. [reference
omitted, para. 118]

And further:

PAGE 16

Whether an accused’s narrative in their
confession is consistent with or conflicts with

Volume 15 Issue 1 - January/February 2015

JEOPARDY	
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NO	
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COUNSEL

the independently verifiable circumstances of
the crime is important for a trial judge to review
with the jury. The trial judge should also direct
the jury to any evidence from the trial as to the
accused’s knowledge of the crime and the
source(s) of that knowledge. Relevant is whether
the accused’s knowledge of the crime, as set out
in his or her confession, is information only the
real perpetrator would know, or alternatively, is
information the accused may have learned from
the police, the media or some other source
before the confession, thereby decreasing the
potential probative value of the confession.
[references omitted, para. 120]

U.S. v. ‘Isa, 2014 ABCA 256

In this case, the trial judge properly instructed the
jury in all the above aspects. As for a caution
concerning the phenomenon of false confessions,
the decision to provide one and its content is within
the discretion of the trial judge, depending on the
facts of the case. While prudent, a caution may not
be necessary as a matter of law “where the
explanation for the potential false confession is not
complicated and readily understandable by the
jury.”
But here, the trial judge failed to caution the jury
about the phenomenon of false confessions, which
Justice Mainella found was necessary given the
circumstances. The jury needed to understand that a
person may confess to something they did not do
even though such a claim seemingly defies common
sense. In omitting this caution, the judge committed
a legal error which deprived the accused of a fair
trial. The accused’s appeal was allowed, his
conviction was quashed, and a new trial was
ordered.
Complete case available at www.canlii.org

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Th e a p p l i c a n t , a n a t u r a l i z e d
Canadian citizen, was arrested in
Canada after a lengthy investigation
by U.S. and Canadian law
enforcement authorities. The U.S. had
sought his extradition on charges of conspiracy to
commit murder, providing material support to
terrorist conduct, and aiding and abetting the
murder of U.S. nationals abroad. It was alleged that
he was a member of a terrorist facilitation network
that was responsible for suicide bombings. On the
day of his arrest the accused spoke to a lawyer for
45 minutes. The Canadian officer specifically told
the lawyer that American authorities may want to
talk to the accused later. He was then interviewed by
a Canadian police officer, followed by a U.S.
Department of Justice investigator. The U.S.
interview was used in the committal hearing to
support extradition.

Alberta Court of Queen’s Bench
The applicant argued, among other
things, that his rights under s. 10(b) of the
Charter had been breached during his
post-arrest interviews and the statement
he made to the U.S. investigator should not have
been used at the committal hearing. The extradition
judge, however, rejected the s. 10(b) submission. He
found the applicant had spoken to experienced
counsel, controlled the length of the call, and was
informed of the jeopardy confronting him both in
Canada and the U.S. The judge ordered the
applicant’s committal into custody to await
extradition, which was followed later by the Minister
of Justice ordering his surrender to the U.S.

Alberta Court of Appeal
The applicant appealed the
extradition judge’s decision in
finding that his rights under s. 10
(b) were not violated. He
suggested, in part, that his interview by the U.S.

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Volume 15 Issue 1 - January/February 2015
investigator triggered a right to a second
consultation with counsel. In his view, the U.S.
interview constituted a “change in circumstance”
such that a further consultation with counsel was
triggered.

not. The applicant was not constitutionally entitled
to a second consultation.

The Court of Appeal disagreed. The questioning by
the U.S. investigator was neither “a non-routine
procedure” nor was there a substantial change in
jeopardy.

Complete case available at www.canlii.org

In R. v. Sinclair, 2010 SCC 35 the Supreme Court of
Canada found that some detainees will be entitled to
an additional opportunity to speak to a lawyer if
there are new non-routine police procedures. The
Sinclair court put it this way:
The initial advice of legal counsel will be geared
to the expectation that the police will seek to
question the detainee. Non-routine procedures,
like participation in a line-up or submitting to a
polygraph, will not generally fall within the
expectation of the advising lawyer at the time of
the initial consultation. It follows that to fulfill
the purpose of s. 10(b) of providing the detainee
with the information necessary to making a
meaningful choice about whether to cooperate
in these new procedures, further advice from
counsel is necessary.

In this case, the questioning by U.S. authorities
would have fallen within the advising lawyer’s
expectations because the Canadian police officer,
while speaking to the lawyer, specifically said that
the applicant might be interviewed by U.S.
authorities.
As for a change in jeopardy, there was no
fundamental and discrete change in the purpose of
the investigation nor was there an investigation for
another or significantly more serious offence not
contemplated at the time of the earlier consultation.
Both the applicant and his lawyer understood from
the beginning about the possibility of an interview
with U.S. authorities to answer U.S. charges. The
circumstances did not change such that the initial
advice received by the applicant may have been
inadequate. The communication to counsel that an
interview with U.S. authorities was possible
provided relevant information necessary for
choosing whether to cooperate with the police or

The appeal from the decision of the extradition
judge to commit the applicant was dismissed.

SAFETY	
 SEARCH	
 EXERCISED	
 IN	
 
REASONABLE	
 MANNER
R. v. Peterkin, 2015 ONCA 8
Two police officers were dispatched
to investigate a 911 call connected to
a townhouse unit at about 2:30
am. No one spoke during the call
and the line was busy on call back.
When police arrived, the front and back doors of the
townhouse were found to be locked, the unit was in
darkness, no one answered the door, no sounds from
within could be heard, and there were no signs
typical of an actual or attempted forced entry. As
they waited nearby for the arrival of a security guard
to let them into the premises so they could continue
their investigation, the accused arrived on foot. They
saw him walk into the fenced back yard of the
townhouse unit through an open gate. He was
talking on a cell phone. When approached by the
officers, the accused denied any connection to the
townhouse and explained that he was just waiting
for a ride. He appeared nervous and avoided eye
contact.
Unsatisfied with the accused’s explanation, the
officers advised him he was being detained under
Ontario’s Trespass to Property Act. He was asked
whether he wanted to speak to a lawyer, but there
was no mention of the toll-free number for duty
counsel or the availability of immediate free legal
advice. The accused produced a driver’s licence to
confirm his identity, but declined to speak to a
lawyer. While his driver’s license information was
checked through the police computer, he began to
act suspiciously. He was seen tapping his right hip
with his right wrist, and “blading” himself to the
officers so that his right side was furthest away from
them. When his driver’s licence was returned, the
accused received it awkwardly by holding his right
elbow tightly to his right hip.

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Volume 15 Issue 1 - January/February 2015
Suspecting he was carrying a weapon, the police
decided, in the interests of their own safety, to
conduct a “pat-down” search of the accused for
weapons before releasing him. When the officers
told him they were going to pat him down, he
backed away, refused to permit the search, and tried
to flee. Officers struggled with him but he was
quickly taken to the ground and subdued. The police
officers discovered, almost immediately, that he had
a handgun. An officer had felt the butt of a gun on
the right side of the accused’s waist and removed it.
The struggle stopped and the accused was arrested
for unlawfully possessing
a firearm. The firearm
was loaded with a bullet
in the chamber. When
searching incident to his
arrest, police recovered 40 bullets, cocaine,
marijuana, two cellphones, and $275 in cash.

Ontario Superior Court of Justice
The judge found the officers had a
sufficient legal basis to detain the
accused in the backyard for investigation
and to conduct a safety search (pat-down)
incidental to this detention. “While completing their
investigation, the accused conducted himself in a
way that caused the police to reasonably suspect
that he was armed with a weapon,” said the
judge. “The proposed ‘pat down’ search of the
accused for weapons was fully justified as incidental
to the investigative detention of the accused given
that the reason for the search was officer safety, and
the officers reasonably believed that their safety was
at risk. Of course, when the accused refused to
permit this incidental ‘pat down’ search for weapons
and instead tried to flee, the police were entitled to
use reasonable and proportional force to prevent the
accused’s escape, and to conduct the necessary
weapons search to protect themselves and the
general public in the vicinity.” There was no s. 8
Charter breach.
The judge did, however, find two other Charter
violations under s. 10. First, s. 10(a) was breached
when the police failed to advise the accused of both
reasons for his detention; they did not tell him he
was also being detained in connection with the 911

call. Second, s. 10(b) was breached when they failed
to tell him about the availability of duty counsel and
provide him with the toll-free number. Nevertheless,
the evidence was admitted under s. 24(2) and the
accused was convicted of unlawfully possessing a
loaded restricted firearm and possessing cocaine for
the purpose of trafficking.

Ontario Court of Appeal
The accused argued that the
warrantless safety search which
followed his investigative detention
was unlawful. He submitted that a
warrantless search is presumptively unreasonable
and the Crown failed to rebut this presumption by
establishing, on a balance of probabilities, that the
police had reasonable and probable grounds to
believe, at the time the search was conducted, their
own safety or that of the public was at risk. In his
view, a reasonable suspicion for the presence of a
weapon reflects only a standard of possibility which
is not sufficient to discharge this obligation. Rather,
the evidence must give rise to a reasonable belief,
which reflects a standard of probability.
The Crown, on the other hand, contended that a
lawful safety search incidental to an investigative
detention requires only a reasonable suspicion or, in
other words, a demonstration of reasonable grounds
to believe that police or public safety is at risk. This
standard relates to reasonable possibility of harm,
not a reasonable probability. In the Crown’s opinion,
it doesn’t make sense that the power to conduct a
limited safety search incidental to a lawful
investigative detention should require a higher
standard than for the detention itself. Furthermore,
even if a higher reasonable belief standard applied,
the Crown’s position was that the evidence in this
case satisfied that standard.

Police Safety Searches
Under the common law, police officers have a
limited power to detain a person for investigative
purposes. The police must have both a reasonable
suspicion that there is a clear nexus between the
prospective detainee and a recent or ongoing
criminal offence. As well, the detention must be

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Volume 15 Issue 1 - January/February 2015

“[S]afety searches incidental to investigative detentions are justified where the officer
believes on reasonable grounds that his or her own safety, or the safety of others, is at
risk. The search must be grounded in objectively discernible facts to prevent fishing
expeditions on the basis of irrelevant or discriminatory factors.”
accused’s] entry into the fenced rear yard also
entitled the officers to detain him to investigate a
potential breach of the Trespass to Property Act,
an arrestable offence under s. 9(1) of that Act.

executed in a reasonable manner. “The investigative
detention should be brief and does not impose an
obligation on the detained individual to answer
questions posed by the police,” said Justice Watt,
speaking for the unanimous Court of Appeal.

As the interaction with [the accused] continued,
the officers noticed several movements they
considered to signal possession of a gun. Taps to
the waistband of the [accused’s] pants. “Blading”
to obstruct their view of the [accused’s] right
side. Awkward receipt of the driver’s licence
when the officers returned it to the [accused]. An
indication by the officers of a pat-down search
for the officers’ safety. Resistance. An attempt to
flee. Apprehension and only then a search. This
accumulation of factors fully supported a
reasonable belief on the part of the officers that
their safety was at stake and justified the search.
[paras. 61-62]

As for searches incidental to investigative detention,
they too are permissible under the common law.
However, such searches do not exist as a matter of
course and are not to be equated with the power to
conduct a search incident to lawful arrest. Instead,
“safety searches incidental to investigative detentions
are justified where the officer believes on reasonable
grounds that his or her own safety, or the safety of
others, is at risk,” said Justice Watt. “The search must
be grounded in objectively discernible facts to
prevent fishing expeditions on the basis of irrelevant
or discriminatory factors.” He added:

Reasonable Suspicion v. Reasonable Grounds

First, the officer’s decision to search must be
reasonably necessary in light of the totality of the
circumstances. It cannot be justified on the basis
of a vague or non-existent concern for safety, nor
can the search be premised upon hunches or
mere intuition. Second, the safety search must
be exercised in a reasonable manner.
[references omitted, para. 45]

In this case, the Court of Appeal upheld the safety
search:
When [the accused] entered the backyard of unit
132 at 296 Grandravine Drive, the officers were
investigating a static line 911 call from the unit.
In doing so, they were discharging their
common law duty to preserve the peace, prevent
crime, and protect life and property. [The

In a recent decision of the Supreme Court of Canada
(R. v. MacDonald, 2014 SCC 3), a majority
concluded that safety searches require the officer
believe on reasonable grounds that their safety is at
stake (or reasonable grounds to believe a person is
armed or dangerous or a reasonable belief in an
imminent threat to safety). The minority in that
decision took this to mean that a new, higher
standard was created to replace the lower
reasonable grounds to suspect standard articluated
in R. v. Mann, 2004 SCC . Justice Watt observed that
MacDonald did not involve a safety search incident
to an investigative detention, but was a free-standing
search power. In the end, Justice Watt found it
unnecessary to determine whether the standard for

“First, the officer’s decision to search must be reasonably necessary in light of the totality
of the circumstances. It cannot be justified on the basis of a vague or non-existent
concern for safety, nor can the search be premised upon hunches or mere intuition.
Second, the safety search must be exercised in a reasonable manner.”
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Volume 15 Issue 1 - January/February 2015
determining the lawfulness of a safety search has
been re-calibrated because, in this case, the test for
a reasonable belief that the officer’s safety was at
stake was satisfied.
The safety search was lawful, the evidence
admissible under s. 24(2), the accused’s appeal
dismissed, and his convictions upheld.
Complete case available at www.ontariocourts.on.ca

PREVENTATIVE	
 ARREST	
 IN	
 
DOMESTIC	
 INCIDENT	
 JUSTIFIED
R. v. Alexson, 2015 MBCA 5
When police responded to a 911
hang-up call at about 4:00 am they
saw and heard, through the living
room window, the accused screaming
at a woman (his wife) and a child that
he was “pissed off.” The wife and child appeared to
be terrified as they were clinging to each
other. When officers banged on the window and
door, the wife ran to let them in and implored the
officers to “take him away.” The officers entered the
home and noted the accused smelled strongly of
alcohol and was likely intoxicated. He became
verbally abusive to both the officers and his wife.
When the officers asked the wife to take the child to
another room, the accused got up as if to go after
her and the child. He was told to calm down. While
he put on some clothes, the accused continued to
yell profanities at the officers, despite repeated
attempts to calm him down. He clenched his fists
and took up a fighting stance. Police concluded they
would need to intervene for the wife and child’s
safety as well as their own. They told the accused he
would be taken into custody because he was
intoxicated. He was pushed to the ground,
handcuffed and removed from the home. The
officers wanted to get him out of the house and
bring him to a detoxification centre where he could
sober up and then be released. When they tried to

place him in the police car, he braced himself
against the back door and kicked one of the officers
in the jaw with his steel-toed boot. He said, “I
gotcha.” He was arrested for assaulting a peace
officer in the execution of their duty.

Manitoba Provincial Court
Although the judge recognized this to be
a difficult situation that escalated very
quickly, he believed the officers should
have done more to resolve the matter
without taking the accused into custody, which
“clearly just inflamed the situation.” In the judge’s
view, there was insufficient evidence to believe the
accused was about to commit an assault or a breach
of the peace in the home. Thus, the police officers
were not acting in the execution of their duty when
they forcibly took him out of the house. The accused
was acquitted of assaulting an officer “engaged in
the execution of his duty.”

Manitoba Court of Queen’s Bench
The appeal judge agreed with the trial
judge that the officers were not lawfully
acting in the execution of their duty when
they forcibly removed the accused from
the home. The police lacked reasonable grounds to
believe an offence or a breach of the peace was
likely to occur. The forcible removal from the
residence amounted to police assault and the
accused was justified in using reasonable force to
defend himself.

Manitoba Court of Appeal
The Crown appealed the accused’s
acquittal arguing that the officers
were lawfully acting in the exercise
of their duty when they removed
the accused from the home and had the necessary
reasonable grounds to believe an offence or breach
of the peace was likely if they did not intervene.
Chief Justice Chartier first observed the difficulty
police face in investigating domestic violence:

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Volume 15 Issue 1 - January/February 2015

“Unfortunately, domestic violence incidents like this one are often before the
courts. What are officers to do when they believe a belligerent and intoxicated person
poses a danger to others in the home? Do they arrest that person and risk being
assaulted with impunity and sued in civil court for unlawful arrest; or, do they leave and
risk being blamed if another member of the household is hurt because they did not
remove that person?”
Unfortunately, domestic violence incidents like
this one are often before the courts. What are
officers to do when they believe a belligerent
and intoxicated person poses a danger to others
in the home? Do they arrest that person and risk
being assaulted with impunity and sued in civil
court for unlawful arrest; or, do they leave and
risk being blamed if another member of the
household is hurt because they did not remove
that person?

child. The officer testified that he was taking the
[accused] to a detoxification centre to prevent
him from assaulting them and to sober up. He
was not going to charge him with an offence. A
cumulative assessment of the relevant factors
satisfies me that the arrest and detention were
reasonably necessary for the carrying out of the
duty to preserve the peace and prevent crime. It
was a preventative and restrained measure taken
to protect other members of the household. The
nature and extent of the interference with the
[accused’s] liberty was limited to the time it took
for him to sober up. It was also a reasonable
interference that served an important public
purpose. [para. 22]

Police Authority to Enter the Home
Although an individual’s home deserves special
protection from police intrusion, the common law
can in some cases provide authority for the police to
enter. In this case, the police had the general duty to
preserve the peace, prevent rime and protect life and
property. The officers were investigating a 911 hangup call. “There can be no question that the officers
in this case had the authority to enter the home to
investigate the reason for the 911 call, irrespective of
whether the person that let them in had the authority
to do so,” said Chief Justice Chartier. “In fact, they
could have used reasonable force to enter to
ascertain the health and safety of the 911 caller, had
it been required. Their investigation, as brief as it
was, led them to believe, based on their judgment
and experience, that an assault on the wife or child
was about to occur.”

Was the accused’s forced removal justified?
Considering the totality of the circumstances, the
Court of Appeal concluded that the officers were
acting in the lawful execution of their duties when
they removed the accused from the home without a
warrant:
[I]n this case, the duty being performed was
preserving the peace and preventing crime by
addressing the safety concerns of the wife and

Reasonable grounds offence likely?
Section 495(1)(a) of the Criminal Code permits a
police officer to arrest when they believe, on
reasonable grounds, that a person “is about to
commit an indictable offence.” Reasonable grounds
carries both a subjective and objective component:
was the officer’s subjective belief objectively
reasonable in the circumstances?
“Under s. 495(1)(a) of the Code, officers do not have
to wait until a person overtly threatens or becomes
very violent before intervening,” said Chief Justice
Chartier. “The threshold is much lower.” There is no
need to demonstrate a prima facie case nor does it
require an imminent and substantial risk. Instead,
all that is required is “the officer’s belief that an
assault was about to occur be more likely than
not.” Furthermore, “the evidence that can form the
basis for the officer’s reasonable grounds can be
hearsay evidence.”
Here, the officer’s subjective belief was not in
dispute. He believed that it was necessary to remove

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Volume 15 Issue 1 - January/February 2015

DYNAMICS	
 OF	
 SITUATION	
 
CONSIDERED	
 IN	
 ASSESSING	
 
GROUNDS	
 FOR	
 ARREST	
 

“Under s. 495(1)(a) of the Code, officers
do not have to wait until a person overtly

threatens or becomes very violent before

R. v. Bakajika, 2015 ONCA 2

intervening. The threshold is much lower.”
the accused from the home to protect the safety of
the wife and child from assault. Moreover, his
subjective belief was objectively supported by the
facts. The Court of Appeal concluded that the officer
had reasonable grounds to arrest for an assault
about to be committed:
Someone had called 911 and it can reasonably
be inferred that it was the wife; the [accused]
was seen screaming at them; he was yelling at
them that he was “pissed off”; he was
intoxicated and undeterred by the police
presence; he attempted to go after the wife and
child when the officers sent them to the other
room; and he clenched his fists and took a
fighting stance against the officers. [para. 28]

Since the arrest was lawful under s. 495(1)(a), it was
unnecessary to decide whether the accused could
have been arrested for a breach of the peace under
s. 31 of the Criminal Code or at common law for an
anticipated breach of the peace. As for the charge of
assaulting a police officer in the execution of his
duty, the accused had deliberately kicked the officer
when he was attempting to place him in the police
car. The accused’s acquittal was overturned and a
conviction was entered. The matter was remitted to
the trial judge for sentencing.
Complete case available at www.canlii.org

BY THE BOOK:
Arrest: s. 495(1)(a) Criminal Code

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

At 9:55 pm a police officer saw a
four door sedan parked two stalls
away from a large SUV in a bank
parking lot. The bank was closed at
the time. The unoccupied sedan had
its lights on and windows down. The officer saw the
accused standing outside the SUV, leaning into its
door, shifting his weight back and forth. He had
something in each hand. In one hand was a dark
coloured object and in the other was a white square,
like a brick. As the officer approached undetected to
investigate, he believed a drug transaction had taken
place, although he did not actually see anything
exchange hands. As the accused turned, the officer
saw a black cone cylinder in one hand and a white
sunglass case in the other. He asked the accused to
show his hands and said, “What’s in your hands?”
But the accused walked over to the sedan, holding
the black object at his side as if to conceal it, his
arm implanted in the side of his body. The officer
again asked to see what was in his hands, but the
accused continued to walk away and replied
“nothing.” He opened the passenger door of the
sedan and discarded both objects into the passenger
seat.
The officer now believed he had reasonable grounds
to arrest the accused for possessing a controlled
substance. These grounds consisted of the following
nine factors:
1. The time of night. All the stores in the plaza
were closed including the bank.
2. These were the only two vehicles in the plaza.
3. He had done a previous drug arrest in this
same parking lot.
4. He had information from a confidential
informant regarding drug transactions in the
area.
5. He had taken a one day course in Pavis training
and proactive initiatives regarding drugs and
weapons.

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Volume 15 Issue 1 - January/February 2015
6. He had seen the two vehicles, one unoccupied
with its lights on and the other two parking
spots over.
7. He had seen the accused leaning in and out of
the SUV and the other male in the driver's seat
of the SUV leaning towards the accused.
8. He had approached the vehicles, apparently
undetected. The accused had turned and
looked at the officer with the two objects in his
hands and then attempted to conceal the black
cylinder object by holding it in an unusual
manner by his side.
9. The accused had refused to answer or
cooperate with the officer's demand to show
him what was in his hands and discarded both
objects into the car.
The accused was arrested, advised of his Charter
rights, and cautioned. Police searched the cylinder
object and found 93 grams of cocaine. In the car
they also found some marihuana, a receipt with the
accused’s name on it, digital scales, and three
cellular telephones. In his pocket, police located
$520 in $20 bills and an additional $500 in cash in
his wallet. The accused was re-arrested for
possessing both cocaine and marihuana for the
purpose of trafficking.

Ontario Court of Justice

•

•

•
•

Under s. 495(1)(a) of the Criminal Code, a police
officer must have reasonable grounds to believe that
a person has committed or is about to commit an
indictable offence before making an arrest. The
reasonable grounds required for a lawful arrest have
both a subjective and an objective component.
“Therefore, an arresting officer must not only
subjectively believe that he has reasonable and
probable grounds on which to base the arrest, but
those grounds must be justifiable from an objective
point of view,” said the judge. “The test is whether a
reasonable person standing in the shoes of the
arresting police officer would conclude that the
arrest was justified.” He also noted:

At trial it was agreed that the officer had
the necessary subjective belief for an
arrest. However, the accused attacked the
objective grounds for this belief. In crossexamining the officer, the accused was able to get
the following pieces of evidence, among others, on
the record:
•

•
•

seven months earlier and the officer did not
know if it was current.
The ATM machine at the bank was open on a
24 hour basis and people often go to an ATM
because the bank is closed.
He did not know how long the vehicles had
been in the parking lot before he saw them nor
did he know what the accused had been doing
prior to seeing him leaning into the SUV.
He agreed that it was certainly possible that the
accused had been to the plaza to use the ATM
He did not smell anything nor witness an actual
drug transaction prior to the arrest.

What was seen in the plaza parking lot could
not be characterized as a hand to hand drug
transaction like the officer had seen before. He
did not see the black cylinder or white object
pass back and forth between the two men.
His previous arrest at that plaza involved a
person in a motor vehicle smoking a joint.
The information he had from the confidential
informant had nothing to do with the two men
and was simply about drug trafficking taking
place in this area. The information was received

PAGE 24

First, reasonable grounds has been described as
credibly based probability - reasonable
probablity. Reasonable and probable grounds
does not amount to proof beyond a reasonable
doubt, nor is it the equivalent of a prima facie
case. The Crown need not establish more than
that the officer had reasonable and probable
grounds. Second, a trained officer is entitled to
draw inferences and make deductions drawing
on experience. Third, judicial scrutiny of
reasonable grounds for an arrest must recognize
the context within which the police officer's
obligation operates. For example, the law does
not expect the same kind of inquiry of a police
officer deciding whether to make an arrest that it
demands of a justice faced with an application
for a search warrant. Therefore, in determining
whether the reasonableness standard is met,
the nature of the power exercised and the
context within which it is exercised must be
considered. The dynamics at play in an arrest

Volume 15 Issue 1 - January/February 2015
situation must be noted by the court because in
many cases, including this one, the officer's
decision to arrest must be made quickly in a
volatile and rapidly changing situation. Judicial
reflection is not a luxury the officer can afford.
The officer must make his or her decision based
on available information which is often less than
exact or complete. [para. 33]

search incidental to arrest was not unreasonable. As
a consequence, he asserted that the evidence seized
should have been excluded under s. 24(2) of the
Charter.

Although this was a close case, the judge concluded
that the arrest was justified:
The court must consider the entirety of the
constellation of factors taken in to consideration
by the officer, as well as the dynamics of the
situation in that the decision to arrest had to be
made relatively quickly. [The officer] had
observed some justifiably suspicious behaviour
prior to attending at the plaza parking lot. The
[accused] had reacted to his inquiry in such a
way that even considering that the [accused]
was not required to respond to the officer, his
response by word and deed, particularly
considering the fast-paced dynamic of the
situation was sufficient to elevate the officer's
suspicions to meet the test for objectively
discernible factors justifying an arrest for the
offence of possession of controlled substance
and, thus, justifying the subsequent search
incidental to that arrest.

In a short endorsement, the Court of Appeal
disagreed. First, the officer subjectively believed that
he had reasonable and probable grounds to arrest.
Second, the trial judge made no error in concluding
that the grounds were objectively reasonable. “The
trial judge summarized ... the observations (nine in
all) that led the officer to believe that he had
reasonable and probable grounds,” said the Court of
Appeal. “He noted in particular, the need to
consider ‘the entirety of the constellation of factors
taken into consideration by the officer as well as the
dynamics of the situation in that the decision to
arrest had to be made relatively quickly’.” This was
the proper analysis and the trial judge’s conclusions
were sound. Since there were no Charter breaches,
there was no need to consider s. 24(2). The
accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Case facts taken from R. v. Bakajaki,
(2013) Court File No.: Halton 12-9415 (Ont.C.J.)

PLAIN	
 VIEW	
 DOCTRINE	
 NOT	
 
APPLICABLE	
 TO	
 STATUTORY	
 
SEIZURE	
 PROVISIONS

This is by no means a clear cut case. The
constellation of objectively discernible facts
amounting to reasonable and probable grounds
available to the officer was not overwhelming
but the case law is clear that reasonable and
probable grounds is a credibly based reasonable
probability and is not to be equated to a prima
facie case or proof beyond a reasonable doubt.
Applying that test results in the appropriate
objective standard being met in this case. [paras.
47-48]

R. v. Mah & Desbiens, 2014 SKCA 135

The accused was convicted of possessing marihuana
and cocaine for the purpose of trafficking.

Ontario Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions arguing that the trial
judge erred by finding that the
arresting officer had reasonable
and probable grounds to arrest him and that the

The police obtained and executed a
search warrant for a residence
pursuant to the Controlled Drugs
and Substances Act (CDSA). The
warrant authorized the police to
search for cocaine and marihuana. In the home,
police found, 989 grams of resin in the kitchen, half
was on the seat of a chair pushed under the kitchen
table and half was on the floor under the kitchen
table in a plastic bag. Other things found in the
home included marihuana, digital scales, score
sheets, and $7,585 in cash. The two accused were
arrested inside the home and charged with
numerous offences including possession of cannabis
resin for the purpose of trafficking.

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Volume 15 Issue 1 - January/February 2015

Saskatchewan Provincial Court
Neither accused challenged the validity
of the search warrant, but they argued
that the resin seized by the police was
not admissible because it was not
mentioned in the search warrant. The judge found
that s. 489(1) of the Criminal Code entitled the
police to seize, in addition to the things mentioned
in the search warrant, any thing that had been
obtained by, or used in the commission of an
offence or would afford evidence in respect of an
offence. In his view, “such a large amount of resin
hidden under the kitchen table and on the floor
would cause an officer to believe on reasonable
grounds of an offence committed.” The resin was
admitted as evidence and convictions of possessing
it for the purpose of trafficking, among other
charges, followed.

BY THE BOOK:
Seizure of things: ss. 11(6) & (8) CDSA
Seizure of things not specified
11(6) A peace officer who executes a warrant
issued under subsection (1) may seize, in
addition to the things mentioned in the
warrant,
(a) any controlled substance or precursor in respect of which
the peace officer believes on reasonable grounds that this
Act has been contravened;
(b) any thing that the peace officer believes on reasonable
grounds to contain or conceal a controlled substance or
precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable
grounds is offence-related property; or

Saskatchewan Court of Appeal

(d) any thing that the peace officer believes on reasonable

The admissibility of the evidence
was again challenged. It was
argued that the resin was not
referred to in the search warrant
nor was it in plain view. Justice Whitemore, writing
the Court of Appeal’s opinion, found the trial judge
erred in referring to s. 489 of the Criminal Code
because the warrant was issued under the CDSA.
However, since s.11(6) of the CDSA uses
substantively the same wording as s. 489, the same
considerations would apply and the trial judge’s
error was therefore harmless.

Plain View
The accused submitted that s. 11(6) of the CDSA
permits the seizure of items not described in the
search warrant only if they are in plain view of the
officer conducting a lawful search.
But Justice Whitemore disagreed. “In this case, the
search was conducted under the statutory authority
of the CDSA and thus, in my opinion, the ‘plain
view doctrine’ does not apply,” he said. “When
conducting a search pursuant to a valid search
warrant and authorized by s. 11(6) of the CDSA, a

grounds will afford evidence in respect of an offence under
this Act.
…
Seizure of additional things
11(8) A peace officer who executes a warrant issued under
subsection (1) or exercises powers under subsection (5) or
(7) may seize, in addition to the things mentioned in the
warrant and in subsection (6), any thing that the peace
officer believes on reasonable grounds has been obtained by
or used in the commission of an offence or that will afford
evidence in respect of an offence.

peace officer is permitted pursuant to s. 11(8) to
seize, in addition to the items listed in the warrant,
‘any thing’ he believes on reasonable grounds relates
to the commission of an offence. There is no
requirement that the additional items be in ‘plain
view’ and the Crown is not required to establish the
components of a ‘plain view’ seizure.” He
continued:

PAGE 26

In this case, there is no dispute the search of the
residence was authorized by the warrant. The
warrant entitled the officers to enter the
residence and search for and seize marihuana
and cocaine. Therefore, whether the resin was

Volume 15 Issue 1 - January/February 2015

“The warrant entitled the officers to enter
the residence and search for and seize
marihuana and cocaine. Therefore,

whether the resin was ‘hidden’ or not is
irrelevant.”

“hidden” or not is irrelevant. In any event, it is
an exaggeration to say the resin was hidden, as a
portion of it was on a chair in the kitchen and
the chair was pushed under the kitchen table.
The remainder was on the floor under the table.
It was not “hidden.” The police were authorized
to look under the table and on the chair for
marihuana and cocaine. That the resin was not
enumerated in the warrant is immaterial. They
found it where they were empowered to search.
[para. 27]

house. He came out carrying a Wal-Mart shopping
bag, which the police believed contained
marihuana. He got into the Volvo SUV and it was
subsequently pulled over. The arresting officer
opened the door and told the accused (driver) she
was under arrest for possessing marihuana for the
purpose of trafficking. At the same time, a second
police officer approached the passenger side of the
vehicle to arrest Chartier. A strong odour of
marihuana was noted and the Wal-Mart bag was
observed at Chartier’s feet. Chartier was holding a
cell phone in each hand and was arrested. The Volvo
SUV was taken back to the police station and
searched. The shopping bag was found to contain
marihuana.

Saskatchewan Provincial Court

The appeal against conviction for possessing the
resin for the purpose of trafficking was dismissed.
Complete case available at www.canlii.org

GROUNDS	
 FOR	
 ARREST	
 TO	
 BE	
 
VIEWED	
 CUMULATIVELY,	
 NOT	
 IN	
 
PIECEMEAL	
 FASHION
R. v. Wasilewski, 2014 SKCA 138
Police were involved in a drug
trafficking investigation. Undercover
officers bought marihuana from a
known drug dealer named Chartier.
He was seen being driven by a male
to the home of Belyk (also known to be a drug
dealer) in a black Volvo SUV registered to the
accused. Chartier got out of the vehicle, went into
Belyk’s house, made a transaction and carried back
to the vehicle what was believed to be bags of
marihuana. Police continued to actively surveil
Chartier. About two months later, Chartier was to
supply marihuana to undercover officers but he told
them he first had to “reload”. Knowing Chartier
would be going to Belyk’s house to get more
marihuana, the police set up surveillance. They saw
the same black Volvo SUV seen earlier pull up to the
house, but this time it was driven by a female.
Chartier got out of the vehicle and entered the

The judge found the police lacked
reasonable and probable grounds to
arrest the accused and excluded all
evidence obtained from the searches of
her vehicle and cell phone incident to arrest, as well
as a transcript of her interview with the police
following her arrest. Although there was ample basis
to arrest Chartier, the judge noted there had been no
targeting of the accused and she had not been on
police “radar” during this particular drug
investigation. Further, at the time of arrest, the officer
did not have reasonable and probable grounds to
believe the accused had been involved in any way
with Chartier or with the drug scene. In the judge’s
view, the arresting officer needed something which
would impute the accused with knowledge as to the
contents of the Wal-Mart bag in order to have
reasonable and probable grounds for her arrest. The
accused was acquitted of possessing marihuana for
the purpose of trafficking.

Saskatchewan Court of Appeal
The Crown appealed the accused’s
acquittal submitting that the trial
judge erred in finding the arrest
unlawful and excluding all of the
evidence. In the Crown’s opinion, the trial judge
failed to apply the “totality of the circumstances” test
in assessing the existence of reasonable grounds to
arrest. He relied solely on the absence of evidence
for the accused's knowledge of Chartier’s criminality

PAGE 27

Volume 15 Issue 1 - January/February 2015
the arresting officer must be able to
conclude there were indeed reasonable
grounds for the arrest;

“[A]n arresting officer is not required to

establish the commission of an indictable

offence on a balance of probabilities or a
prima facie case for conviction before

•

“an arresting officer is not required to
establish the commission of an indictable
offence on a balance of probabilities or a
prima facie case for conviction before
making the arrest; but an arresting officer
must act on something more than a
"reasonable suspicion" or a hunch;

•

“an arresting officer must consider all
incriminating and exonerating information
which the circumstances reasonably permit,
but may disregard information which the
officer has reason to believe may be
unreliable;

•

“a reviewing court must view the evidence
available to an arresting officer cumulatively,
not in a piecemeal fashion; and

•

“‘the standard must be interpreted
c o n t e x t u a l l y, h av i n g r e g a r d t o t h e
circumstances in their entirety, including the
timing involved, the events leading up to the
arrest both immediate and over time, and
the dynamics at play in the arrest’ and,
context includes the experience and training
of the arresting officer. [references omitted,
cited at para. 14]

making the arrest; but an arresting officer
must act on something more than a

‘reasonable suspicion’ or a hunch.”
while ignoring all of the other circumstantial factors
such as the previous association of her vehicle with
Chartier and Belyk, the odour of marihuana, and the
fact it would be unlikely for a drug trafficker to take
an “innocent” party to a drug deal. The Crown also
contended that the police were not required to have
information about the identity of the accused before
her arrest nor did the arrest require proof that she
knew there was marihuana in the bag.
The accused, on the other hand, contended that the
trial judge was correct in finding that the police
lacked reasonable grounds at the time of her arrest.
All the police had was her presence at the time of a
suspected offence involving Belyk and Chartier. Her
arrest occurred immediately after the vehicle was
stopped and before any effort was made to identify
her and determine her involvement. There was no
evidence seized from the vehicle at the time of the
arrest and no warrant had been sought to search her
vehicle as she was unknown to the police.
Justice Lane, delivering the Appeal Court’s decision,
found the trial judge erred by focusing only on the
immediate circumstances of the arrest, while failing
to consider all of the relevant information the
arresting officer had available based on the
investigation as a whole. Citing an earlier decision of
the Court of Appeal (R. v Shinkewski, 2012 SKCA
63), Justice Lane set out a list of factors to be
considered in determining the lawfulness of a
warrantless arrest:
•

“an arresting officer must subjectively hold
reasonable grounds to arrest and those
grounds must be justifiable from an
objective point of view - in other words, a
reasonable person placed in the position of

The Crown’s appeal was allowed, the accused’s
acquittal was set aside, and a new trial was ordered.
Complete case available at www.canlii.org

“[A]n arresting officer must subjectively
hold reasonable grounds to arrest and

those grounds must be justifiable from an
objective point of view - in other words, a
reasonable person placed in the position
of the arresting officer must be able to

conclude there were indeed reasonable
grounds for the arrest.”

PAGE 28

Volume 15 Issue 1 - January/February 2015

GROUNDS	
 FOR	
 BREATH	
 
DEMAND	
 MUST	
 BE	
 ASSESSED	
 IN	
 
ʻTOTALITYʼ
R. v. Schofield, 2015 NSCA 5

BY THE BOOK:
Breath Demand: s. 254(3) Criminal Code

A police officer with 38 years’
experience including some 600
impaired driving investigations saw a
vehicle being driven at dusk with dim
headlights and no taillights. When the
officer turned on his emergency lights, the vehicle
turned into a driveway and in doing so cut across
the edge of the shoulder of the road and the
driveway. The driver got out and leaned against the
tail of the vehicle while smoking a cigarette. The
officer saw a can of beer on the ground, still
foaming. He believed it was thrown out the window
of the vehicle. The officer recognized the driver as
the accused. He had arrested him for a previous
impaired charge and later met him sober at the
courthouse. He also knew he was a prohibited
driver. The officer could smell a strong odour of
alcohol coming from the accused’s breath and saw
that his eyes were glassy.
The officer concluded that he had reasonable and
probable grounds for reading the breathalyzer
demand. He escorted the accused to the police
vehicle, read the demand for breath samples, and
arrested him for impaired driving. He was advised of
his right to counsel but declined to exercise it. At the
police station he provided two breathalyzer samples
with readings of 220mg% and 200mg%. He was
charged with prohibited driving, operating a motor
vehicle while impaired, and over 80mg%.

Nova Scotia Provincial Court
The judge found the officer subjectively
believed that he had reasonable grounds
to make the breath demand. But the
judge concluded the officer did not have
reasonable grounds to make the breath demand
from an objective point of view. First, the judge
discounted the foaming can of beer because there
was no indication that the officer actually saw him
throw it out of the car and it would have had little to
do anyways in assessing whether or not there were

s. 254 (3) If a peace officer has reasonable
grounds to believe that a person is committing,
or at any time within the preceding three
hours has committed, an offence under section
253 as a result of the consumption of alcohol,
the peace officer may, by demand made as soon as
practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s
opinion, will enable a proper analysis to be made to
determine the concentration, if any, of alcohol in the
person’s blood ….

grounds to make the breath demand. Second, the
judge discounted the accused’s driving over the
shoulder of the driveway because there was no
evidence presented that he had any experience
driving into it. Third, there was no evidence of the
accused’s motor skills having been impaired. As a
result, the judge was left with two indicia of
impairment: the strong smell of alcohol coming from
the accused and his glassy eyes. There were no
results of sobriety testing or roadside screening.
“The officer in this case would have had to have
conducted further observation of the accused prior
to making the breath demand,” said the judge. “The
officer could have asked the accused to perform
sobriety tests or could have utilized an approved
screening device or perhaps spent more time
speaking to the accused.” As a result, the judge held
that the officer did not objectively have reasonable
grounds to demand a breath sample under s. 254(3)
of the Criminal Code. The breathalyzer procedure
was an unreasonable search and seizure under s. 8
of the Charter and the breath sample results were
excluded under s. 24(2). The accused was acquitted
of the impaired driving related charges but convicted
of driving while prohibited under s. 259(4)(a).

PAGE 29

Volume 15 Issue 1 - January/February 2015
judge should not focus on missing evidence.
Rather, the judge should consider whether the
adduced evidence of circumstances known to
the officer reasonably supported the officer’s
view. [references omitted, paras. 33-35]

Nova Scotia Court of Appeal
The Crown argued that the judge
erred by ruling that the officer did
not have the requisite reasonable
grounds to demand a breath test
under s. 254(3), and in holding that the taking of the
breath tests violated his rights under s. 8 of the
Charter.
After reviewing the case law on reasonable grounds,
Justice Fichaud, speaking for the unanimous Court of
Appeal, found that reasonableness must be assessed
from the officer’s perspective and described the
following principles:
The question is - did the “totality of the
circumstances” known to the officer at the time
of the breath demand rationally support the
officer’s belief? The officer may infer or deduce,
draw on experience, and ascribe weights to
factors. Parliament expects the officer to do this
on the roadside according to a statutory timeline,
while informed by the available circumstances,
but without either the benefit of trial processes to
test the accuracy of his or her belief or “the
luxury of judicial reflection”. The officer must
identify the supporting circumstances at the voir
dire. But the officer was not expected to apply
the rules of evidence at the roadside. So the
support may be based on hearsay. The supporting
connection must be reasonable at the time, but
need not be proven correct at the later voir dire
that considers s. 254(3).
The judge should not segregate the officer’s
criteria for piecemeal analysis, then banish each
factor might have a stand-alone explanation.
From the officer’s roadside perspective, the
factors may have had corroborative weights that
together formed a sounder platform for an
inference of impairment. The reductive approach
denies that corroborative potential. ...

In this case, the trial judge erred in finding the officer
did not have reasonable grounds to demand a breath
sample. He misapplied the principles in determining
whether reasonable grounds existed by:
•

•

•

•

There is no minimum period of investigation,
mandatory line of questioning or legally essential
technique, such as a roadside screening. The

Erroneously segregating the officer’s criteria,
assessing them in isolation, then eliminating
them sequentially before considering
reasonableness.
Rejecting the officer’s reasonable inferences
such as the accused’s driving over the shoulder
of the driveway and the foaming can of beer.
Driving over the shoulder was reasonably
inferential of slight impairment despite no
evidence of the accused’s experience with that
driveway. As for the foaming can of beer, the
officer was entitled to draw the reasonable
inference that the beer can was “foaming”
because it had recently hit the ground when the
accused discarded it. When the accused turned
into the driveway, the officer saw “motion in the
vehicle” and the can was “still foaming” on the
ground a few feet from the accused. Nobody
else was in the vicinity.
Not considering the officer’s awareness of the
accused’s history of impaired driving. The judge
ignored the officer’s earlier arrest of the accused
after a similar incident and observing him at the
courthouse sober. The officer had a rare
opportunity to compare the accused’s varying
demeanours – one inebriated and one sober –
before assessing his state for this investigation.
The officer’s familiarity with the accused was
part of the “totality of the circumstances”.
Treating missing evidence, such as further
observation, a sobriety test or use of an
approved screening device, as a legal
prerequisite.

“[T]he officer was not expected to apply the rules of evidence at the roadside. So the
support may be based on hearsay. The supporting connection must be reasonable at the
time, but need not be proven correct at the later voir dire that considers s. 254(3).”
PAGE 30

Volume 15 Issue 1 - January/February 2015
In holding that the officer had an objective basis to
demand a breath sample under s. 254(3) under the
totality of the circumstances, Justice Fichaud stated:
In summary, on April 3, 2010, thirteen months
earlier, [the officer] had a similar encounter with
[the accused], that led to a conviction for driving
with excessive blood alcohol and a driving
Prohibition Order. On May 13, 2011, [the
officer] was aware of the earlier incident and that
the Prohibition Order was still in effect. The
officer had met [the accused] twice before, once
when [the accused] was inebriated and once
sober. From 600 impaired driving investigations
over 38 years, the officer was well positioned to
recognize the signs of impairment. On May 13,
2011, [the accused] drove over the driveway’s
shoulder, there was a foaming beer can next to
him, he smelled strongly of alcohol and his eyes
were glassy. The officer’s belief was reasonable.
From the facts as found, the judge erred in law
by reaching a different conclusion.

Since the breath sampling did not violate s. 8 of the
Charter, the evidence was admissible, the Crown’s
appeal was allowed, and a new trial was ordered on
the impaired driving charges.
Complete case available at www.canlii.org

BLOOD	
 DEMAND	
 FOLLOWING	
 
ʻDREʼ	
 DOES	
 NOT	
 REQUIRE	
 A	
 
FURTHER	
 s.10(b)	
 ADVISEMENT	
 
R. v. Fogarty, 2015 NSCA 6
The accused, a methadone patient,
collided with an oncoming Mustang
with two occupants. Earlier, there had
been complaints of erratic driving by
his vehicle. Officers arrived on scene
at 3:30 pm and noted the accused had glassy eyes,
but didn’t smell of alcohol. He said he was a
recovering drug addict and had taken methadone at
8:00 am that day. The accused was transported by
ambulance to the hospital. He was told that one of
the Mustang’s passengers had died. While in the
ambulance, the accompanying officer formed the
opinion that the accused’s ability to operate a motor
vehicle had been impaired by a drug, concluding he
had reasonable grounds to demand that the accused

submit to a drug recognition evaluation (DRE) under
s. 254(3.1) of the Criminal Code. The demand was
read and the accused said he understood. When
they arrived at the hospital, the accused was taken to
an emergency room, assessed by medical staff, and
cleared. The accused was then arrested for impaired
driving and advised of his right to a lawyer. He said
he wanted to speak to a lawyer and was given a cell
phone to consult legal aid in private. A DRE
assessment was conducted. His coordination was
poor and unsteady, his speech was fast, slightly
slurred, and he was stuttering often. His face was
flushed, his nose was runny, and his eyelids were
droopy. Vision, divided attention, balance, hand-eye
and psycho-physical coordination tests were also
conducted. As well his blood pressure, pulse, body
temperature, pupil dilation, and muscle tone were
checked.
Based on the DRE, the evaluator opined that the
accused’s ability to operate a motor vehicle was
impaired by a drug. A blood sample was then
demanded under s. 254(3.4). The accused did not
request nor was he given further access to counsel
after the DRE was completed but before his blood
was drawn. Subsequent toxicological analysis
indicated that his blood contained central nervous
system depressants - Valium (Diazepam) and several
active metabolites of Valium and Mirtazapine. Also
found in his blood was methadone that, when
combined with central nervous system depressants,
can exacerbate impairment. The other occupant of
the Mustang also died and the accused was
subsequently charged with two counts of impaired
driving causing death and two counts of dangerous
driving causing death.

Nova Scotia Supreme Court
The accused argued the evidence of his
blood samples and their analysis should
be excluded under s. 24(2) of the Charter
because the police failed to provide him
with an additional opportunity to consult counsel
after the demand for a blood sample but before the
blood was drawn. The judge, however, disagreed.
The accused was aware of the extent of his jeopardy
when he consulted legal counsel. He understood the
demand for a drug evaluation test and was aware the

PAGE 31

Volume 15 Issue 1 - January/February 2015
police wanted to test him to determine whether there
were drugs in his body in relation to his arrest for
impaired driving by drug. He spoke with legal
counsel for about 15 minutes following the demand
for a drug evaluation test and it was reasonable to
infer that competent counsel would have advised
him of the procedure set out in s. 254 (ie. a demand
would be made that he provide bodily samples in
the event he failed the drug evaluation test). There
was no evidence that he did not receive competent
legal advice or that he did not understand the legal
advice given. There was no change in the accused’s
circumstances between the exercising of his right to
counsel and the demand for a blood sample which
would, objectively viewed, require a further
consultation with counsel. There was no s. 10(b)
Charter breach, the evidence was admissible, and
the accused was convicted on all counts. He was
sentenced to prison.

Nova Scotia Court of Appeal

•

•

In this case, the accused asserted that the request for
blood was a change of circumstance requiring a
further opportunity to consult counsel. In his view,
ss. 254(3.1) and (3.4) establishes a unique two-step
process and legal advice should accompany each
step. Since, at the time of the DRE demand, the
police did not tell him of the potential for blood
sampling later on, then both steps - the DRE and the
blood sampling - required a s. 10(b) advisement.
The accused’s argument was rejected by the Court of
Appeal. Justice Fichaud stated:

The accused appealed the trial
judge’s ruling, again arguing his
blood sample and the subsequent
toxicological analysis should have
been excluded under s. 24(2) because the police
breached his s. 10(b) right when they failed to
provide him with an opportunity to re-consult
counsel after the demand for his blood.
Under R. v. Sinclair, 2010 SCC 35, it was recognized
that s. 10(b) normally affords the detainee a single
consultation with counsel unless circumstances
change such that a further opportunity to consult a
lawyer will be required. Such situations requiring an
additional consultation with counsel include:
•

A change in jeopardy such as when the
investigation takes a new and more serious turn
as events unfold.
There is reason to question the detainee’s
understanding of their s. 10(b) such as when
events indicate that a detainee who has waived
their right to counsel may not have understood
their right.

New non-routine procedures involving the
detainee, such as participation in a line-up or
submitting to a polygraph, which will not
generally fall within the expectation of the
advising lawyer at the time of the initial
consultation.

... In my view, a blood demand under s. 254(3.4)
would occupy the expectation of the advising
lawyer during the DRE consultation under s. 254
(3.1). The point of the DRE is to determine
whether to demand a fluids sample. That is clear
from s. 254(3.4): “If, on completion of the
evaluation, the evaluating officer has reasonable
grounds to believe, based on the evaluation, that
the person’s ability to operate a motor vehicle …
is impaired by a drug … the evaluating officer
may … demand” a sample of saliva, urine
or blood.
The DRE and blood demand are not
disjunctive investigative techniques.
Rather, the DRE culminates in the fluids
demand. That linear progression is
apparent from the plain words of ss. 254
(3.1) and (3.4), with which competent
counsel would be familiar. During the DRE
consultation with the client, competent
counsel would expect that a failed DRE
likely would trigger a demand for blood,
urine or saliva, and would advise the client
respecting that eventuality. [paras. 47-49]

“In my view, a blood demand under s. 254(3.4) would occupy the expectation of the
advising lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is
to determine whether to demand a fluids sample.”
PAGE 32

Volume 15 Issue 1 - January/February 2015
Without evidence of the content of the accused’s
legal advice that preceded the DRE or that his
counsel acted incompetently, the judge made no
error in finding that the police did not have to
provide an additional opportunity for the accused to
consult counsel. His appeal was dismissed and his
convictions were upheld.
Complete case available at www.canlii.org

BY THE BOOK:
DRE: ss. 254(3.1) & (3.4) Criminal Code
Evaluation
(3.1) If a peace officer has reasonable grounds
to believe that a person is committing, or at
any time within the previous three hours has
committed, an offence under paragraph 253

ʻITOʼ	
 GROUNDS	
 NOT	
 TO	
 BE	
 
FRAGMENTED	
 BUT	
 RATHER	
 
CONSIDERED	
 IN	
 TOTALITY
R. v. Liberatore, 2014 NSCA 109
A police officer swore an Information
to Obtain (ITO) a s. 487 Criminal
Code search warrant to search a
residence owned by the accused and
his mother. The ITO said there were
reasonable grounds to believe that a .45 semiautomatic handgun; a 9 mm semi-automatic
handgun; a .38 revolver; and .45, 9 mm and .38
calibre ammunition would be found on the
premises. The ITO cited information from other
police officers, Sources A, B and C, and from the
investigation. Included in the ITO was the following
information:
•

(1)(a) as a result of the consumption of a drug or of a
combination of alcohol and a drug, the peace officer may, by
demand made as soon as practicable, require the person to

•

submit, as soon as practicable, to an evaluation conducted by
an evaluating officer to determine whether the person’s
ability to operate a motor vehicle ... is impaired by a drug or
by a combination of alcohol and a drug, and to accompany
the peace officer for that purpose.
...
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating
officer has reasonable grounds to believe, based on the
evaluation, that the person’s ability to operate a motor
vehicle ... is impaired by a drug or by a combination of
alcohol and a drug, the evaluating officer may, by demand
made as soon as practicable, require the person to provide,

•

as soon as practicable,
(a) a sample of either oral fluid or urine that, in the
evaluating officer’s opinion, will enable a proper analysis to
be made to determine whether the person has a drug in their
body; or
(b) samples of blood that, in the opinion of the qualified
medical practitioner or qualified technician taking the
samples, will enable a proper analysis to be made to
determine whether the person has a drug in their body.

PAGE 33

The accused had a criminal record dating from
2000 to 2011 for weapons and drug related
offences;
Source A, who had been a source for less than a
month, provided information based on personal
knowledge obtained from conversations and
observations of the persons involved that the
accused was selling marijuana and cocaine from a
shed located on his property; that he had three
handguns, a .45 calibre pistol, a 9mm. pistol and
a .38 calibre revolver which were kept in a locked
toolbox in his shed; that he had two white trucks,
a Chevrolet Silverado and a GMC Sierra Dinali,
which he parked next to a shed on his property,
and that his residence was under renovation.
Source A had a criminal record, associated freely
with persons involved in criminal activity and was
financially motivated to provide information.
The officer followed up on the information and
saw two white trucks matching the descriptions
given by Source A parked next to a shed located
across the land from a residence, which appeared
to be under renovation. Investigation confirmed
that the properties on which the shed and
residence were located were owned by the
accused and his mother. The officer also
corroborated that one of the two trucks he saw
was registered to the accused but could not
confirm the registered owner of the second truck
because he could not see its licence plate number.

Volume 15 Issue 1 - January/February 2015
•

•

•

•

Source B said the accused was selling drugs from
a shed on his property; that he had three guns in
his shed; a .45 calibre, a .38 calibre and another
unknown handgun; that these guns had been at
the accused’s place the previous week and that
the accused had these guns since before
Christmas. Source B provided this information
based on their direct observation of and
conversations with persons who were the subject
of the information. Source B had provided
information on prior occasions, had proven to be
reliable, and their information had resulted in the
seizure of contraband. Source B was financially
motivated.
Source C’s information, provided four years
earlier, was about the accused becoming a big
drug dealer and keeping a 9 mm. pistol in the
p a s s e n g e r s i d e d o o r o f h i s g i r l f r i e n d ’s
vehicle. Source C’s information had previously led
to the search and seizure of crime related property
or drugs and the laying of criminal charges.
The accused’s residence had also been the scene
of three home invasions in a four year period and
little of value had been taken during these
incidents. In two of these incidents the
perpetrators were armed with handguns and other
weapons were used during the third
incident. During the first incident, when only the
accused’s mother was present, she refused to
allow the responding officers to enter one of the
rooms in the residence. Items in the residence
consistent with a marijuana grow operation and
drug trafficking were observed. During the second
home invasion the accused did not immediately
call the police but called some friends and his
mother. The accused’s girlfriend called the police
and, when they arrived, the accused said nothing
was taken during the incident.
In many cases where persons produce or sell
drugs they often keep firearms or other weapons
for protection.

residue, a mason jar with 701 meth pills and 5
ecstasy pills, and a bottle of valium. The search also
disclosed weigh scales, empty plastic bags and three
spoons with white residue. The accused was charged
with weapons and drug offences.

Nova Scotia Supreme Court
The accused sought the exclusion of
evidence, contending that the ITO lacked
reasonable and probable grounds to
establish a factual nexus between the
weapons offences for which the search warrant was
sought and the premises to be searched. The judge
disagreed and determined that the issuing justice had
reasonable and probable grounds to establish the
factual nexus. Finding the warrant properly issued.,
the judge stated:

The warrant was issued and executed the following
day. The search uncovered several replica firearms,
but not the weapons specified in the ITO. The police
found a knife that opened by centrifugal force,
sandwich bags containing cocaine (33.3 grams, 12.2
grams, and 5 grams), a dime bag with 25 ecstasy
pills, a bag with 83.4 grams of marihuana,
marihuana packaged for resale (1.1, 2.0 and 3.5
gram bags), many large bags with marihuana

PAGE 34

The ITO established a factual nexus between the
items to be searched for and the location to be
searched. It was not based on mere conclusory
statements but rather on the personal
observations and conversations of two Sources
with the [accused]. These Sources both indicated
that the [accused] was dealing drugs from a shed
located on his property; that the [accused] had
three firearms; the Sources described the calibre
of weapons they had seen or been told of by the
[accused] in the previous one to four
weeks. Some of the information provided by
Source A was corroborated by the affiant ... such
as the location of the shed; that it was across the
road from the [accused’s] residence which was
under renovation; the make, model and colour
of the [accused’s] vehicles and where they were
parked.
The ITO also contained facts regarding the
[accused’s] criminal record for drug and
weapons offences; the three home invasions over
a four year period, two of which were by armed
gunmen; and the affiant’s statement, based on
experience and training that drug dealers often
keep firearms or other weapons for protection.
In conclusion, the justice had before him
reasonable and probable grounds establishing a
factual nexus between the offences for which the
warrant was sought and the places to be
searched. The search warrant was properly

Volume 15 Issue 1 - January/February 2015

“The reliability of the information is
assessed by recourse to ‘the totality of
the circumstances’, including its degree of
detail, the informer’s source of knowledge
and indicia such as the informer’s past
reliability and confirmation from other
sources. Even an anonymous tip attracts
the inquiries - how compelling was the
information, how credible was the source,
and was the information corroborated by
other evidence? The body of evidence
isn’t anatomized for a segregated analysis
of each fragment. Viewed as a whole, its
bits may be cross-confirmatory.”
issued and the evidence obtained as a result of
the search is admissible.

The accused then pled guilty to two weapons
offences and five counts of possessing controlled
substances for the purpose of trafficking. He was
sentenced to three years in prison.

Nova Scotia Court of Appeal

reputational, and distracting. He sought to dispose of
Source A’s information as being unreliable because it
was stale (being a month old), they had a criminal
record, was motivated by financial gain, and was
unproven - their information had not yet led to an
arrest. As for Source B, the accused contended his
information about the guns was a “bald” assertion,
with no detail regarding date, time, place and
frequency of observations . Further, the language
used in the ITO that Source B’s information was
“ b a s e d u p o n d i r e c t o b s e r va t i o n s o f , a n d
conversations with persons who are the subject of
the information” was “mere boilerplate, intended to
whitewash over perceived deficiencies in the ITO”.
With these attacks on the information in the ITO, the
ITO as dismantled crumbled and there remained no
reliable basis for the warrant.
Justice Fichaud, for the unanimous Court of Appeal,
rejected these arguments. The test for determining
whether a warrant was properly issued is not
whether the reviewing court would itself have issue
the warrant. Instead, the test is whether there was
sufficient credible and reliable evidence to permit
the authorizing justice to find reasonable and
probable grounds to believe that an offence had
been committed and that evidence of that offence
would be found at the specified time and place. As
for the ITO in this case, Justice Fichaud held:

Th e a c c u s e d a p p e a l e d t h e
reviewing judge’s ruling that the
ITO contained sufficient reliable
information that the issuing justice
could find that there were reasonable and probable
grounds to believe that there was a handgun and
ammunition on the property. The Crown indicated
that it would not rely on Source C’s information in
seeking to uphold the validity of the search warrant
because it was so dated that it would have been of
no value.

The reliability of the information is assessed by
recourse to “the totality of the circumstances”,
including its degree of detail, the informer’s
source of knowledge and indicia such as the
informer’s past reliability and confirmation from
other sources. Even an anonymous tip attracts
the inquiries - how compelling was the
information, how credible was the source, and
was the information corroborated by other
evidence? The body of evidence isn’t anatomized
for a segregated analysis of each fragment.
Viewed as a whole, its bits may be crossconfirmatory.

In challenging the judge’s reasoning, the accused
sought to deconstruct the ITO. He submitted that the
ITO’s only evidence of the presence of weapons on
the premises was the affiant’s hearsay derived from
Sources A and B. Everything else, such as his
criminal history, was propensity evidence,

Source A was a tipster. But the tip’s detail
demonstrated specific knowledge of the
weapons and their recent location, [the
accused’s] premises, shed and vehicles, and his
drug trafficking activities. The detail was sourced
in the informant’s personal observation. Source

PAGE 35

Volume 15 Issue 1 - January/February 2015

ARRESTEEʼs	
 BEHAVIOUR	
 
PREVENTED	
 s.	
 10	
 ADVISEMENT:	
 
NO	
 BREACH	
 AT	
 THAT	
 TIME

A was untested, and his past reliability unknown.
But his information was corroborated externally
in several respects – [the accused’s] ownership of
the premises, its layout, shed and description of
the house renovations, and the make of vehicles
observed by the police on the premises.

R. v. Boliver, 2014 NSCA 99

Source A’s information was significantly
corroborated by Source B.
Source B was a tested informant of four years,
whose information had proved to be accurate
and actionable, leading to arrests. His
information was current, and from personal
observation. He gave specific details of the
guns, [the accused’s] premises and drug
trafficking operations.
The evidence of [the accused’s] criminal history
of convictions showed that possession of a
firearm was not an isolated event. Drug and
weapons offences going back ten years tended to
corroborate the inference that weapons
pertained to [the accused’s] activities in the drug
trade.
The ITO set out the history of three home
invasions and a robbery at [the accused’s]
premises, and the reluctance of [the accused]
and his mother to allow the police entry or to
cooperate with the police investigation of those
offences. As [the reviewing judge] noted, these
facts also occupied the broad field of
circumstances from which a corroborative
inference of illicit activity may
spring. [references omitted, paras. 27-32]

The Court of Appeal agreed that the issuing justice,
having recourse to the totality of the circumstances,
could conclude that there were reasonable and
probable grounds to establish a factual nexus
between the offences for which the warrant was
sought and the accused’s premises. The warrant was
properly issued and the accused’s appeal was
dismissed.
Complete case available at www.canlii.org

www.10-8.ca

The accused exited a mall in which a
lounge was located and began
confronting the police who were
outside. He was loud, aggressive and
quickly became out of control in this
confrontation. He attracted a significant amount of
attention, was causing a disturbance, and acting in a
manner consistent with an inebriated state. When he
was advised he was under arrest, a violent struggle
ensued in which officers attempted to handcuff
him. They got one handcuff on but fell to the
ground. The accused, a very large man, thrashed
about with the handcuffs flailing from his one cuffed
wrist.The crowd that had gathered became more
vocal and police tried a number of holds, hand
strikes, and pressure point applications, to no avail.
Police issued a warning that if the accused did not
stop resisting and put his hands behind his back he
would be tasered. He did not comply and was
tasered. A second deployment of the taser was
necessary to bring the accused under control. He
was handcuffed and brought to the police car where
he continued to be violent, screaming, cursing and
banging on the window. He kicked the rear door
with so much force he damaged it, leaving it bowed
outward. He was eventually transported from police
cells to the hospital where he could be assessed. His
emotional state was such that it was not possible for
the police to explain the reason for his detention, the
nature of the charges, or his right to counsel until
after his return to the police station from the hospital.

Nova Scotia Provincial Court
The accused asserted, among other
Charter allegations, that his ss. 10(a) and
(b) rights had been breached. He argued
that at no time during his arrest, or his
transportation to the holding cell or to the hospital,
was he informed of the reason for it. Further he
contended that he was never informed of his right to
contact legal counsel, given an opportunity to
contact legal counsel, or provided with the legal aid
number for duty counsel.

PAGE 36

Volume 15 Issue 1 - January/February 2015
The judge found that the accused was informed of
the fact that he was being placed under arrest, but
that the officer did not get the opportunity to say
anything more than “you’re under arrest.” The reason
for the arrest had been public intoxication and a
breach of the peace that had unfolded as a result of
the accused’s actions. Once the officers placed their
hands on either side of the accused to get him to the
police car, he began to violently resist, which
resulted in his tasering and handcuffing. When
placed in the police car, his actions remained out of
control. He was banging against the interior of the
vehicle and also kicking the rear door. Even upon
being taken to the police station, the accused did not
moderate his actions to the point where it was
possible to have meaningful interaction with him.
However, at some point during the night the
necessary information could have been provided to
him. Thus, the accused’s s. 10(a) and 10(b) rights
were violated by the police. However, no remedy for
these breaches, including the stay of proceedings
sought by the accused, was imposed. He was
convicted of resisting arrest, damage to property and
public intoxication. He was sentenced to a fine and
twelve months’ probation.

“Section 29(2) of the Code also requires

that everyone who arrests a person must

give notice “when it is feasible to do so” of
the reason for the arrest.”

Nova Scotia Court of Appeal
The accused appealed again,
arguing, in part, that the violation
of this s. 10(a) and 10(b) rights
rendered his arrest unlawful. In
upholding the lower judgments, Justice Bryson stated
the following:
Section 10(a) of the Charter entitles everyone
arrested or detained “to be informed promptly of
the reasons therefor”. Section 10(b) entitles
everyone who is arrested or detained “to retain
and instruct counsel without delay and to be
informed of that right”. The information
obligation described in s. 10(b) of the Charter is
subject to the need to secure officer or public
safety.
Section 29(2) of the Code also requires that
everyone who arrests a person must give notice
“when it is feasible to do so” of the reason for
the arrest. [references omitted, paras. 11-12]

Nova Scotia Supreme Court
The appeal judge was satisfied that the
trial judge did not err in deciding that no
s. 10 violation occurred at the time of
arrest. “Virtually all of the actions which
constituted elements of offences for which he was
charged were committed long before the police
would have had a reasonable opportunity to explain
the charges to him and his right to counsel,” said the
appeal judge. He also agreed that the ss. 10(a) and
(b) violations had no effect on the charges against
the accused and therefore there was no evidence
obtained as a result of these violations, so there was
nothing to exclude. As well, he agreed the breaches
did not warrant a remedy. The accused’s appeal was
dismissed.

“The information obligation described in
s. 10(b) of the Charter is subject to the

need to secure officer or public safety.”

However, the Court of Appeal observed that the trial
judge found the officers were fully occupied with
responding to the accused’s violent behaviour which
precluded them from informing him of the reasons
for his arrest at that time. It was the accused’s own
behaviour that produced the situation which made it
practically impossible to do so. Thus, there was no s.
10(a) violation at that time. And the subsequent
violation of his s. 10 later on had no effect on the
charges against him. No evidence was obtained as a
result of the violation of his rights, so there was no
evidence to exclude as a result. In all the
circumstances, the trial judge’s conclusion that the
breaches did not warrant a remedy were owed
deference. The accused’s appeal was again
dismissed.
Complete case available at www.canlii.org

PAGE 37

Volume 15 Issue 1 - January/February 2015

NEW	
 K9	
 RULES	
 FOR	
 BC
On September 1, 2015, new British Columbia
Provincial Policing Standards (BCPPS) concerning
the use of police dogs will take effect. “The goal of
the Provincial Standards for police service dogs is to
have effective and accountable police service dog
units, which minimize bites and injuries, without
hindering the appropriate use of police service dogs
to further public safety,” it states in the BCPPS 1.4.
The standards outline eight principles:
• Police dogs are important policing tools and can
be used for a variety of tasks.
• Police dogs are also intermediate weapons; police
dogs bite.
• A police dog bite can cause injury.
• The use of a dog, as with all other force options,
must be proportional to the level of risk posed to
the officer, the suspect and the community as a
whole.
• Police dog bites must be minimized as much as
reasonably possible and must be proportional to
the risk posed to the handler and to others.
• Police dogs must be well trained. They require
high levels of initial training, and continuous
maintenance of their performance.
• Police dogs must always be under control of their
handler, and the handler is always responsible for
the behaviour of their dog.
• There must be accountability for the use of police
dogs.

Permitted Uses of Police Dogs
Authorized uses of police dogs include:
• Tracking or searching for persons who may have
committed, or be about to commit, an offence;
• Apprehending persons by police dog bite or
display;
• Tracking or searching for missing or lost persons;
• Searching for drugs;
• Searching for explosives/firearms;
• Searching for evidence;
• Crowd control;
• Community relations and other demonstration
events.

Threshold and Circumstances of Use
The Standards also outline the threshold and
circumstances of using a police dog where a bite
may occur. Section 1.4.2 states that a chief
constable, chief officer, or commissioner must:(1)
“Prohibit police dog handlers from permitting a police
dog to bite a person, and prohibit dog handlers from
permitting a police dog to continue to be deployed if
it would reasonably be expected that the police dog
would bite a person, unless:
(a) The person is causing bodily harm to an officer, a
third party or the police dog;
(b) The police dog handler is satisfied, on reasonable
grounds, that the person’s behaviour will
imminently cause bodily harm to an officer, a third
party, or the police dog; or
(c) The person is fleeing or hiding and there are
reasonable grounds for their immediate
apprehension by a police dog bite.”

Reasonable grounds is defined in the Standard as
having “both a subjective and an objective
component, and means that the officer must
personally believe that the decision or action is
necessary, and in addition, the decision or action must
be able to stand the test of whether an objective third
person, who is acting reasonably—and is informed of
the officer's training, experience and the factual
circumstances known at the time—would also reach
the same conclusion.”
Other things the Standards address include training,
certification, warnings, removing the dog from a
bite, searching, reporting and data.
The complete Provincial Policing Standards are
available here.

PAGE 38

Volume 14 Issue 6 - November/December 2014

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