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Volume 10 Issue 4 - July/August 2010

Highlights In This Issue
Robbery In Canada

10

Spitting On Cop Warrants Custodial Sentence

12

DNA Abandoned: No s.8 Breach

14

Arrest Based On More Than Mere Hunch

16

Evidence Discovered After Arrest Cannot Be Used
To Justify It

17

Search Incidental To Arrest Does Not Require
Exigencies

18

23
Probing
Probation Facts
;2<;=2<;>?02@0>;2?02??AB

Sentencing Process Can Address Charter Breaches

32
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Victim’s Mother Not A Person In Authority:Voir
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Child
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39
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s.24(1) Remedy Can Include Damages For Charter

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45

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Unless otherwise noted all articles are
authored by Mike Novakowski, MA. 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. If you would like to be added
to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.ca.

POLICE
LEADERSHIP
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PAGE 2
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National Library of Canada Cataloguing in
Publication Data

Volume 10 Issue 4 - July/August 2010

ILLEGALLY INTERCEPTED CELL
PHONE CALLS ADMISSIBLE
R. v. Stanton, 2010 BCCA 208
The accused, and three others, was
charged on a 12-count indictment
with various offences. The charges
included assault causing bodily
harm, assault with a weapon,
unlawful confinement, aggravated assault, robbery
and conspiracy to commit an unlawful confinement.
At trial in British Columbia Supreme Court there was
an issue as to whether the interception of the
accused’s private communications breached his
rights under s.8 of the Charter. The judge found
there was a breach because the authorization did
not contain a properly drafted cellular phone
“resort-to” clause. But, the judge concluded that
even if the the accused’s s.8 rights had been
breached, the calls were admissible under s.24(2) of
the Charter using the Collins/Stillman considerations
(whether the admission of the evidence would affect
trial fairness, the seriousness of the breach, and the
effect of admission on the administration of justice).

brought into greater disrepute if the calls were
excluded. None of the calls were “essential to the
proof of the Crown’s case”, neither the admission
nor the exclusion of the calls would have any “long
term effect on the administration of justice”, and
each charge was “serious”. The intercepted calls
were admissible and the accused was convicted of
unlawful confinement, robbery, assault causing
bodily harm, and conspiracy to commit unlawful
confinement.
The accused then appealed to the British Columbia
Court of Appeal arguing the trial judge erred in
failing to exclude the intercepted calls under s.24(2)
of the Charter. Had the calls not been admitted, he
contended that the other evidence remaining against
him would not have established his guilt beyond a
reasonable doubt.
Since the time of the trial judge’s decision, the
Supreme Court revised the factors to be considered
in a s.24(2) analysis. The three branches for analysis
are now:
a)

the seriousness of the Charter-infringing state
conduct,
the impact of the breach on the Charterprotected interests of the accused, and
society’s interest in the adjudication of the
case on its merits.

Since the calls were not conscriptive evidence, their
b)
admission would not affect trial fairness. The breach
was serious - the Crown Agent seeking the
c)
authorization made a “deliberate”, “unreasonable”
and “negligent” decision not to
seek a cellular telephone “resort“State conduct resulting in
to” clause that would have
Charter violations varies in
permitted lawful interception of
the calls. Further, the police “must
seriousness. At one end of the
have become aware” of the
spectrum, admission of evidence
absence of a resort-to clause
through inadvertent or minor
authorizing interception and chose
nonetheless, “unreasonably” and violations may minimally undermine
“negligently”, to intercept the calls
public confidence. At the other
anyway. But the police and Crown
Agent’s conduct fell in the middle
end of the spectrum, admitting
ground between good and bad
evidence obtained through a wilful
faith - there were neither
or reckless disregard of Charter
aggravating nor mitigating
c i rc u m s t a n c e s a f f e c t i n g t h e
rights will inevitably have a
seriousness of the breach. Finally,
negative effect on public
the trial judge ruled that the
administration of justice would be
confidence.”

PAGE 3

In the accused’s view, the
three new factors all
weighed against the
admission of the calls and
that, on balance, society’s
confidence in the justice
system would be weakened
by their admission and they
therefore should have been
excluded.
In this case the Court of
Appeal upheld the admission
of the evidences even if the
revised s.24(2) framework for
admissibility was used.

Volume 10 Issue 4 - July/August 2010
Seriousness of the Charter-infringing State Conduct
“State conduct resulting in Charter violations varies
in seriousness,” said Justice Rowles, speaking for the
Court of Appeal. “At one end of the spectrum,
admission of evidence through inadvertent or minor
violations may minimally undermine public
confidence. At the other end of the spectrum,
admitting evidence obtained through a wilful or
reckless disregard of Charter rights will inevitably
have a negative effect on public confidence.
Evidence that the conduct was part of a pattern of
abuse tends to support exclusion.”

In concluding that the evidence in this case was
admissible, the Court of Appeal stated:.
The warrantless interception of private
communications generally represents a highly
intrusive breach of privacy and the judge in this
case recognized the breach as being a serious
one. While the judge found the breach itself to
be serious, he determined that the conduct of
the police demonstrated neither good faith nor
bad faith. Significantly, the Charter-infringing
state conduct was not wilful or reckless (the
serious end of the spectrum) nor was it
inadvertent or minor (the minor error end of the
spectrum). In other words, the state conduct in
this case fits somewhere in the middle of the
continuum of seriousness. Furthermore, there
was no evidence that the conduct was part of a
pattern of abuse and, based on the evidence of
the Crown precedent for authorizations in use at
the time as well as the evidence put forward by
the defence of other authorization orders that
had been made, the conduct could not be taken
to be representative of what the Crown agents
were doing. The police could have intercepted
the communications lawfully if the “resort-to”
paragraph contained in the Crown Counsel
precedent relating to cellular phones had been
included in the authorization. This is a case in
which the impugned conduct might be termed
“one-off” and unlikely to be replicated,
particularly not by anyone involved in or
knowledgeable about this investigation or
prosecution.

Impact of the Breach on the Accused
“The impact of a Charter breach may range from
fleeting and technical to the profoundly intrusive,”
said Justice Rowles. “The more serious the impact on
an accused’s protected interests, the greater the risk
that admission of the evidence may signal to the
public that Charter rights are of little actual avail to
the citizen. An unreasonable search contrary to s. 8
may impact on the protected interests of privacy, and
more broadly, human dignity. An unreasonable
search that intrudes on an area in which the
individual enjoys a high expectation of privacy, or
that demeans his or her dignity, is more serious than
one that does not.”
Society’s Interest in Adjudication of the Case
“The public interest in truth-finding remains a
relevant consideration under the s.24(2) analysis and
the reliability of the evidence is an important factor,”
said the Court. “If a breach undermines the
reliability of the evidence, it points in the direction
of exclusion. Conversely, exclusion of relevant and
reliable evidence may undermine the truth-seeking
function of the justice system and render the trial
unfair from the public perspective, thus bringing the
administration of justice into disrepute. The fact that
the evidence obtained in breach may facilitate the
discovery of the truth and the adjudication of the
case on its merits must be weighed against factors
pointing to exclusion in order to balance the
interests of truth with the integrity of the justice
system.”

As to society’s interest in an adjudication on the
merits, the judge decided to admit evidence that
was both highly reliable and relevant. There is
no suggestion that the breach in this case
undermined the reliability of the evidence in any
w a y. E x c l u s i o n o f t h e i n t e r c e p t e d
communications would have deprived the
Crown of real, reliable evidence that the Crown
considered important to its case and the societal
interest in the truth-seeking function of a trial.
The nature and quality of the evidence points to
inclusion rather than exclusion in the
circumstances of this case. [paras. 63- 64]

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

PAGE 4

Volume 10 Issue 4 - July/August 2010

ONTARIO’s PUBLIC WORKS
PROTECTION ACT
Recently, media reports on the G8 and G20 Summits
held in Ontario has highlighted Ontario’s Public
Works Protection Act (PWPA). It was this legislation
that authorized police to identify, search, and arrest
persons under prescribed circumstances in relation
to Ontario’s public works.

What is a ‘Public Work’?
Under s.1 of the PWPA a “public work” is defined as
follows:
“public work” includes,
(a) any railway, canal, highway, bridge, power
works including all property used for the
generation, transformation, transmission,
distribution or supply of hydraulic or
electrical power, gas works, water works,
public utility or other work, owned, operated
or carried on by the Government of Ontario
or by any board or commission thereof, or by
any municipal corporation, public utility
commission or by private enterprises,
(b) any provincial and any municipal public
building, and
(c) any other building, place or work designated
a public work by the Lieutenant Governor in
Council.

centre of Front Street West; then east along the centre
of Front Street West to the east curb of Windsor Street;
then north along the east curb of Windsor Street to the
centre of Wellington Street; then east along the centre
of Wellington Street to the centre of Bay Street; then
south along the centre of Bay Street to a point directly
opposite the north wall of Union Station; then west
along the exterior of the north wall of Union Station to
the centre of York Street; then south along the centre
of York Street, continuing east of the abutments under
the railway overpass, and continuing south along the
centre of York Street to the centre of Bremner
Boulevard; then west along the centre of Bremner
Boulevard to the east curb of Lower Simcoe Street;
then south along the east curb of Lower Simcoe Street
to the north curb of Lake Shore Boulevard West; then
west along the north curb of Lake Shore Boulevard
West to the south end of the walkway that is located
immediately west of the John Street Pumping Station
and runs between Lake Shore Boulevard West and the
bus parking lot of the Rogers Centre; then north along
the west edge of that walkway to the bus parking lot
of the Rogers Centre; then west along the south edge
of the bus parking lot of the Rogers Centre to the west
edge of the driveway running between the parking lot
and Bremner Boulevard; then north along the west
edge of that driveway to the north curb of Bremner
Boulevard; then west along the north curb of Bremner
Boulevard to the east curb of Navy Wharf Court; then
north along the east curb of Navy Wharf Court to the
southwest point of the building known as 73 Navy
Wharf Court; then east along the exterior of the south
wall of that building; then north along the exterior of
the east wall of that building to the curb of Blue Jays
Way; then north along the east curb of Blue Jays Way
to the curb at the southeast corner of Blue Jays Way
and Front Street West.
SCHEDULE 2

Pursuant to a regulation made on June 2, 2010 and
coming into force on June 21, the following were
designated as public works for the purposes of the
PWPA:
s.1(1) Everything described in clause (a) of the
definition of “public work” in section 1 of the
Act that is located in the area described in
Schedule 1, including, without limitation and for
greater certainty, every sidewalk in that area.
2. The places described in paragraphs 1, 2 and 3
of Schedule 2.
SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1

The area in the City of Toronto lying within a line
drawn as follows:
Beginning at the curb at the southeast corner of Blue
Jays Way and Front Street West; then north to the

PAGE 5

DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF
SECTION 1

1. The area, within the area described in Schedule 1,
that is within five metres of a line drawn as follows:
Beginning at the south end of the walkway that is
located immediately west of the John Street Pumping
Station and runs between Lake Shore Boulevard West
and the bus parking lot of the Rogers Centre; then
north along the west edge of that walkway to the bus
parking lot of the Rogers Centre; then west along the
south edge of the bus parking lot of the Rogers Centre
to the west edge of the driveway running between the
parking lot and Bremner Boulevard; then north along
the west edge of that driveway and ending at Bremner
Boulevard.
2. The area, within the area described in Schedule 1,
that is within five metres of a line drawn as follows:
Beginning at the southwest point of the building
known as 73 Navy Wharf Court; then east along the
exterior of the south wall of that building; then north
along the exterior of the east wall of that building and
ending at the curb of Blue Jays Way.

Volume 10 Issue 4 - July/August 2010
3. The below-grade driveway located between Union
Station and Front Street West and running between
Bay Street and York Street in the City of Toronto.

offence and on conviction is liable to a fine of
not more than $500 or to imprisonment for a
term of not more than two months, or to both.

The regulation designating the areas found in
Schedule I and Schedule 2 was revoked on June 28,
2010.

Powers of peace officer
Section 3 of the PWPA prescribes the powers
afforded to peace officers (and guards as appointed)
to request identification, conduct warrantless
searches of persons and/or vehicles, to deny entry,
and use as much force as is necessary to prevent
entry:
A guard or peace officer,

Arrest
Section 5(2) provides a peace officer with the
warrantless power to arrest a person for neglecting
or refusing to comply with a request or direction by
a peace officer:
A guard or peace officer may arrest, without
warrant, any person who neglects or refuses to
comply with a request or direction of a guard or
peace officer, or who is found upon or
attempting to enter a public work without lawful
authority.

Case Law

(a) may require any person entering or
attempting to enter any public work or any
approach thereto to furnish his or her name
and address, to identify himself or herself and
to state the purpose for which he or she
desires to enter the public work, in writing or
otherwise;

The PWPA has been considered in a number of
Ontario cases, particularly those concerning
searches at courthouses.
In R. v. Skeete, [2002] O.J. No. 3048 (Ont.C.J.) the
accused entered a Hamilton courthouse and the
shaving kit bag he had with him was manually
searched for weapons. It contained crack cocaine
and he was arrested and charged with possession for
the purpose of trafficking, possessing proceeds of
crime, and breach of recognizance. The judge ruled
that s.3 of the PWPA complied with s.8 of the
Charter and did not need to include a requirement
of reasonable grounds. “The legislation is selfexplanatory and necessary for the protection of all
involved who are present in our courts,” said the
judge:

(b) may search, without warrant, any person
entering or attempting to enter a public work
or a vehicle in the charge or under the
control of any such person or which has
recently been or is suspected of having been
in the charge or under the control of any such
person or in which any such person is a
passenger; and
(c) may refuse permission to any person to enter
a public work and use such force as is
necessary to prevent any such person from so
entering.

Offences
Section s.5(1) of the PWPA sets out a number of
offences, including neglecting or refusing to obey a
request or direction of peace officer:
Every person who neglects or refuses to comply
with a request or direction made under this Act
by a guard or peace officer, and every person
found upon a public work or any approach
thereto without lawful authority, the proof
whereof lies on him or her, is guilty of an

PAGE 6

In my opinion there is a lowered expectation of
privacy when one enters a public building, such
as a courthouse, especially where notices of
pending searches are clear and present. A person
has a right to turn around and leave prior to
search. There is full autonomy. They may then
return, knowing full well that they will be
searched upon return. It is a general search and
no individual is singled out for special treatment,
thereby preserving individual integrity. It is
performed for security purposes and not criminal
investigations. There should be very little
expectation of privacy and, consequently, as a
result, that limited expectation does not require

Volume 10 Issue 4 - July/August 2010
that searches only be conducted where there are
reasonable and probable grounds. [para. 29]

The judge upheld the constitutionality of the PWPA,
finding it was a valid piece of “legislation enacted
for very important purposes by a duly elected
legislature.”
In R. v. Campanella (2005), 75 O.R. (3d) 342
(Ont.C.A.), the accused entered the Hamilton
Courthouse to appear on a drug charge. While going
through screening her purse was manually searched
and a baggie of marijuana was found. She was
arrested and charged. The Ontario Court of Justice,
the Ontario Superior Court of Justice, and the
Ontario Court of Appeal all held that the search and
seizure did not violate s.8 of Charter. The security
screening that took place was authorized by s.3(b) of
the PWPA. "Public work" was defined in s.1 to
include "any provincial and any municipal public
building", which obviously included a courthouse.
As well, s.137 of the Police Services Act provided
that the police services board was responsible for
ensuring the security of the courthouse.
In R. v. S.S. et al, [2005] O.J. No. 5002 (Ont.S.C.J.)
the accuseds, charged with serious criminal offences
including murder, attempted murder, robbery, drug
trafficking, weapons offences and belonging to a
criminal organization, challenged the requirement
that all individuals entering the courtroom would be
searched with a hand wand and manual or visual
searches of carried receptacles, including lawyers’
briefcases, would be undertaken for weapons or
escape implements. The Chief of Police, for reasons
of security and public safety, had concluded that
prior security clearance should not be extended to
lawyers (Crown or defence counsel) or court staff.
The searches were authorized under s.3(b) of the
PWPA and the judge ruled there was no actual or
potential violation of anyone’s s.8 Charter rights and
there was no basis to declare s.3(b) unconstitutional.
In R. v. Skinner-Withers, 2006 ONCJ 47 the accused
was taken from the police station to the courthouse
for his bail hearing. He was patted down for
weapons or contraband, but became agitated. A
scuffle ensued and he punched an officer in the
face. He was charged with assaulting a peace officer
engaged in the lawful execution of his duties. At trial

the accused argued the offence had not been made
out because the search was illegal (there was no
authority for it) and even if it was authorized, it was
unreasonable because he had already been searched
on a number of occasions after being taken into
custody the previous day. The court found that not
only did the PWPA authorize the routine search of
persons out of custody (as was the case in
Campanella), it also authorized searches of persons
already in custody. “[I]ndividuals (accused and nonaccused alike) who enter court buildings out of
custody may be routinely searched,” said the judge.
“It cannot be the case that those who attend court
facilities in custody should not be subjected to
similar, non-invasive precautionary measures”.
In R. v. Nicolosi,[1993] O.J. No. 3406 (Ont.G.D.)
Toronto Police officers stopped the accused and
subsequently impounded the vehicle he was driving.
The police undertook an inventory search and found
a handgun. In the Ontario Court of Justice (General
Division) the Crown attempted to justify the search
pursuant to s.3(b) of the PWPA (among other
authorities). The judge however, rejected this
argument. Although, s.1 of the PWPA defined a
"public work" as including a highway (and "highway"
is defined as including any street), the evidence did
“not establish that any of the steps taken by police
were for the purpose of protecting a public work.”
Therefore, there was no basis to invoke the
provisions of the PWPA. The search, however, was
upheld as a lawful inventory search under Ontario’s
Highway Traffic Act permitting impoundment of the
vehicle (see R. v. Nicolosi (1998), 127 C.C.C. (3d)
176 (Ont.C.A.)).

Note-able Quote
“[I]f you were making $500 or $600 an hour and
$5,000 or $6,000 a day in court, you wouldn’t be
complaining about long trials. You’d want them to
go on forever! ... And for those who think that
way, the Charter is like a gift from heaven. It is the
godsend of all godsends.” - Ontario Court of
Appeal Justice Maldover, remarks to the Justice
Summit, “The State of the Criminal Justice System in
2006: an Appellate Judge’s Perspective” - November
15, 2006, Toronto, Ontario.

PAGE 7

Volume 10 Issue 4 - July/August 2010

BC COURT FACILITY SECURITY
Courtroom security in British Columbia is the
responsibility of Sheriffs services. Among other
things, Sheriffs also escort prisoners by ground and
air to and from remand facilities for court
appearances.

Searching Persons
Under s.6.1(3) of British Columbia’s Sheriff Act (SA),
a sheriff may search a person for weapons inside or
entering a court facility.

person who is in, or is attempting to enter, a court
facility (s.6.1(3)(c) SA). If the person refuses to be
searched for weapons, refuses to move to another
place for the purpose of a search, or refuses to
relinquish a weapon in their possession, a sheriff
may refuse a person entry to, or evict a person from,
a court facility (s.6.1(4)(a)-(c) SA). Furthermore, if a
sheriff has reason to believe that the person is (i) a
threat to the safety of the court facility or to the
health or safety of any of its occupants, or (ii)
disrupting court proceedings, they may refuse the
person entry to or evict them from the court facility
(s.6.1(4)(d) SA).

Arrest

A sheriff may do one or more of the following:
(a) search a person for weapons in the manner
prescribed by the minister before the person
enters a court facility or at any time while the
person is inside the court facility.

In addition to the powers of a sheriff to search, seize,
and evict, a sheriff may arrest a person under s.
6.1(4.1) of the SA.

Under s.2 of the Sheriff Act Security Regulation
(SASR), the search conducted under s.6.1(3) of the
SA may be a pat-frisk search or screening search.
These types of searches are defined under s.1(1) of
the SASR as follows:
“pat-frisk search” means a hand search or a
search by use of a hand-held screening device,
conducted by a sheriff
(a) of a clothed person, from head to foot, down
the front and rear of the body, around the
legs, and inside clothing folds, pockets and
footwear, and
(b) of any personal possessions, including
clothing, that the person may be carrying or
wearing.

... a sheriff may arrest a person who is in a court
facility area or evict a person from a court
facility area if
(a) the person is in possession of a weapon and
refuses to comply with the sheriff’s request to
relinquish the weapon to the sheriff, or
(b) the sheriff has reason to believe that the
person is
(i) a threat to the safety of the court facility
or the health or safety of any of the
occupants of the court facility, or
(ii) disrupting court proceedings.

Use of Force
A sheriff is entitled to use reasonable force in
refusing entry, evicting, or seizing a weapon under s.
6.1(5) of the SA:

“screening search” means a search by a sheriff
of a clothed person and any personal
possessions, including clothing, the person may
be carrying or wearing, that is conducted
visually or with the use of a screening device,
including without limitation, a walk-through or
hand-held metal detector or a fluoroscope.

In order to search a person inside a court facility a
sheriff may require the person move to another place
inside the facility (s.6.1(3)(b) SA). Furthermore, a
sheriff may seize any weapon in the possession of a

PAGE 8

A sheriff may use reasonable force in
(a) refusing a person entry to a court facility, a
restricted zone or a court facility area,
(b) evicting a person from a court facility or a
restricted zone, or
(c) seizing a weapon from a person who is in, or
is attempting to enter, a court facility or a
court facility area.

Volume 10 Issue 4 - July/August 2010

Searching Prisoners
Under s.6.2(2) of the SA, a “sheriff may conduct a
search of a prisoner and any personal possessions,
including clothing, that the prisoner may be carrying
or wearing.” A prisoner means “a person in lawful
custody of a sheriff” (s.6.2(1) SA). A strip search is
defined in s.1(1) of the SASR as:

However, “if the circumstances allow, before
conducting a strip search, a sheriff must (a) inform
the prisoner to be strip searched of the reasons for
the strip search, and (b) explain how a strip search is
conducted” (s.2.1(1) SASR). As well, under s.2.1 of
the SASR additional procedures must be adhered to:
s.2.1(2) A strip search that is conducted by a
sheriff must be
(a) observed by one other sheriff or other peace
officer,
(b) carried out in as private an area as the
circumstances allow, and
(c) carried out as quickly as the circumstances
allow.
(3) The person referred to in subsection (3) (a)
must be the same gender as the prisoner who is
the subject of a strip search unless the sheriff's
supervisor believes on reasonable grounds that
the delay necessary to comply with this
requirement would result in danger to human
life or safety.

“strip search” means a visual inspection by an
authorized person of a nude person that
includes
(a) a visual inspection of the following:
(i) the person undressing completely;
(ii) the open mouth, hands or arms of the
person;
(iii) the soles of the feet and the insides of the
ears of the person;
(iv) the person running his or her fingers
through his or her hair;
(v) the person bending over, and
(b) t h e p e r s o n o t h e r w i s e e n a b l i n g t h e
authorized person to perform the visual
inspection.

Contraband

Strip searches are permitted provided that:
s.6.2(4) Before a sheriff conducts a strip search
of a prisoner, the sheriff must
(a) believe on reasonable grounds that the
prisoner may be in possession of contraband,
(b) believe on reasonable grounds that a strip
search is necessary in the circumstances, and
(c) obtain the authorization of the sheriff's
supervisor, unless the sheriff believes on
reasonable grounds that the delay necessary
to comply with this requirement would result
in danger to human life or safety.

However, s.6.2(4) “does not apply to a strip search
of a prisoner conducted by a sheriff on taking
custody of the prisoner for transport from a
penitentiary under the control of Canada” (s.6.2(5)
SA). And “a strip search of a prisoner must be
conducted by a sheriff of the same sex as the
prisoner unless the delay that would be caused by
complying with this requirement would result in
danger to human life or safety” (s.6.2(6) SA).

Under s.6.2 of the Sheriff Act “contraband” means
(a) contraband described in paragraphs (a) to (e) of the
definition of "contraband" in the Correction Act, or
(b) an object or substance that, in the opinion of a
sheriff's supervisor, may threaten the security or
safety of sheriffs or persons in the custody of
sheriffs.
Under paragraphs (a) to (e) of British Columbia’s
Correction Act, contraband means:
(a) an intoxicant;
(b) if possessed without prior authorization, a weapon,
any component of a weapon or ammunition for a
weapon, or anything that is designed to kill, injure or
disable or is altered so as to be capable of killing,
injuring or disabling;
(c) an explosive or bomb, or any component of an
explosive or bomb;
(d) if possessed without prior authorization, any
currency;
(e) if possessed without prior authorization, tobacco
leaves or any products produced from tobacco in
any form or for any use.

PAGE 9

Volume 10 Issue 4 - July/August 2010

DID YOU KNOW?

Rate per 100,000

2008 ROBBERY RATES

...that according to a recent Leger Marketing poll
released in May 2010, 83% of Canadians surveyed
agreed that adult sentences should be considered for
youths found guilty of serious crimes, like murder
and aggravated assault. Half (50%) agreed
completely while another 33% agreed somewhat in
tougher sentences for youth convicts. Residents in
Alberta (90%), Manitoba/Saskatchewan (89%) and
the Maritimes (89%) were more likely to agree in
tougher sentences while residents in Quebec (79%)
and British Columbia (78%) were less likely to
agree. In Ontario, 82% agreed in tougher sentences.
(source http://www.legermarketing.com/documents/SPCLM/105262ENG.pdf)

ROBBERY IN CANADA
What is robbery?
Robbery is defined as an
incident of theft that also
involves violence or the
threat of violence.

In Statistics Canada’s
Spring 2010 release
“Police-reported robbery
in Canada, 2008”, the
following highlights were
reported:

• in 2008 there were about 32,000 robberies;
• robberies accounted for 7% of all violent crime;
• robberies in Canada were down -6.7% in 2008
from 2007;
• over the past 10 years (from 1999 to 2008)
robberies in Canada were down -9.6%;
• the greatest decreases in robberies over the past
10 years have occurred in Quebec (-30.1%),
British Columbia (-22.1%), and Manitoba
(-21.6%);
• the greatest increases in robberies over the past
10 years have occurred in Newfoundland
(+114.7%), Nunavut (+94.9%), and
Saskatchewan (+32.1%);

107.2
110
100
90
1999

99.7

99.2

2000

2001

95.8
2002

101.4

Area (province or territory)

Rate per
100,000
residents

Rate change
from 2007 to
2008

Manitoba

157.9

-21.6%

105
Saskatchewan

128.4

-18.1%

British Columbia

123.0

-3.7%

Alberta

105.5

-4.3%

Ontario

92.2

-5.5%

Quebec

90.0

-4.1%

95
Nova Scotia

61.3

-15.8%

Northwest Territories

53.1

-11.0%

Nunavut

50.9

+22.3%

110

100

90

Yukon

-7.8%
1999 2001 200345.32005 2007

New Brunswick

28.1

-9.3%

Newfoundland

27.4

-13.9%

Prince Edward Island

16.4

+42.0%

Canada

96.9

-6.7%

•

• the only violent crimes that occur more often
than robbery are assault and uttering threats;
• while most violence occurs between people
who know each other, robberies are usually
committed by a stranger;
• about 25% of robberies also involved an
additional offence, most commonly a weapon
offence, assault, or uttering threats;
Police-reported robbery in Canada, 1999-2008,
rate per 100,000 population

97.0

100.6

to enter2005
text
2003 Type
2004

PAGE 10

106.3

2006

103.8

2007

96.9
2008

Volume 10 Issue 4 - July/August 2010
• robbery is committed predominately by
young males. In 2008, 87% of those
accused of robbery were male while nearly
66% were between 12 and 24 years of age; Location
• the highest rates of robbery were among 15
to 18 year olds.
Outdoor Public

Robbery by Location Type
Number

%

Rate per
100,000

13,634

50.3%

41.7

Street

9,123

33.7%

27.9

Parking Lot

1,669

6.2%

5.1

Open Area

1,646

6.1%

5

Transit Facility

1,196

4.4%

3.7

✦ commercial or institutional locations Commercial or Institution
(such as convenience stores and gas
Convenience Store & Gas Station
stations, banks or financial institutions,
other commercial places like office
Bank or Financial
buildings and grocery stores, schools,
Other Commercial Place
and other non commercial places like
community centres, hospitals, and
School
churches);

10,682

39.4%

32.7

3,518

13%

10.8

1,240

4.6%

3.8

5,024

18.5%

15.4

560

2.1%

1.7

340

1.3%

1

2,782

10.3%

8.5

Private dwelling unit

2,679

9.9%

8.2

Other private structure

103

0.4%

0.3

There are three major locations where
robberies occur:
✦ outdoor public locations (such as streets,
parking lots, open areas, and transit
facilities);

Other Non-Commercial Place

✦ residences (such as private dwelling
units (home invasions) and other private Residence
property structures).
Source: Statistics Canada, Spring 2010, “Police-reported
robbery in Canada, 2008”, catalogue no. 85-002-X, Vol.
30, no. 1.

Top Ten 2008 Robbery Rates by Census Metropolitan Area (CMA)
CMA

Rate per 100,000

Rate change from 2007 to 2008

Winnipeg, MB

232.7

-23.0%

Regina, SK

221.9

-11.9%

Saskatoon, SK

211.8

-29.4%

Vancouver, BC

170.8

-4.9%

Edmonton, AB

170.5

+0.9%

Montreal, QC

151.2

-2.1%

Toronto, ON

133.4

-6.0%

Thunder Bay, ON

131.3

-7.7%

Abbotsford-Mission, BC

126.7

+3.0%

Halifax, NS

122.2

-11.2%

PAGE 11

• the CMAs with the greatest percent
increases in robberies from 2007 to
2008 were Trois-Rivieres QC
(+63.7%), Gatineau QC (31.4%),
Saint John NB (+30.7%), Windsor
ON (+30.4%), and Kelowna BC
(+14.3%);
• the CMAs with the greatest percent
decreases in robberies from 2007
to 2008 were Saguenay QC
(-42.7%), Brantford ON (-35.1%),
Saskatoon SK (-29.4%), Moncton
NB (-27.4%), and Kitchener ON
(-24.6%);
• over the past 10 years from 1999 to
2008, Thunder Bay ON reported
the greatest increase in robberies at
+122.9%.

Volume 10 Issue 4 - July/August 2010

SPITTING ON COP WARRANTS
CUSTODIAL SENTENCE
R. v. Charlette, 2010 SKCA 78
The accused’s mother called police
to report that her daughter, the
accused, had been abusive, was
causing a disturbance, and needed to
be removed from the home. While
being placed in police cells, the accused spit in an
officer’s face twice, and spit upon his clothing
once. And she continued spitting as the officers
attempted to lock the cell door. Earlier, the accused
told police she had a “contagious disease,” but
when asked whether she really had such a disease,
she laughed and said “maybe he should go get
checked out.” The police officer who was spit upon
undertook a series of treatments and tests. At a later
time, after initially refusing to provide access to her
medical records, the accused did grant access which
ultimately revealed she was not suffering from any
disease. The accused was released on bail, but on
successive occasions refused to comply with the
curfew and alcohol terms of her release.

emphasized the accused’s need for rehabilitation
and gave her time served (nine days on remand) plus
six months’ probation for the assault and six
breaches. The terms of probation did not require a
curfew, nor have an alcohol abstinence or treatment
clause. She was required to report in person to her
probation officer, reside at an approved residence,
take personal counselling, and write a letter of
apology within 60 days of sentencing.
The Crown appealed the sentence to the
Saskatchewan Court of Appeal, submitting that the
judge over-emphasized the sentencing principle of
rehabilitation and did not recognize the gravity of
the offence. As well, the sentence would not deter
the accused, or others, from committing a far too
common type of assault against police officers spitting. The Crown contended that a sentence of 30
to 90 days, plus an 18-month probation order,
would be appropriate.
Justice Jackson, delivering the opinion of the Court
of Appeal, agreed. “Spitting on someone is a
particularly distasteful and harmful form of assault,”
she said. “It is almost always accompanied by the
veiled or express threat of transmitting a
communicable disease. The possibility of contracting
a disease is real, and the fear of developing a disease
preys on the victim’s mind for some time to
come. Police officers, whose jobs require them to
confront individuals in close quarters, have few
resources to counter an assault of spitting.”

The accused plead guilty to assault and six counts of
breaching her interim release conditions. At her
sentencing hearing the officer provided a victim
impact statement that indicated he, and his family,
were deeply troubled by the possibility he had
contracted a communicable disease. The ongoing
tests and treatment he was required to undergo were
difficult and bothersome. At the time he had an
The Court ruled that a custodial sentence was in
unhealed wound on his face, which added to his
order. The sentence of probation imposed by the
distress. The accused had a minor youth record, a
Provincial Court, with its terms, constituted no
severe addiction problem,
sentence at all, the Court of Appeal found. In
and social issues. Her pre- “Spitting on someone is a
its place, a fit sentence of 60 days custody,
sentence report indicated
along with a six month probationary period
particularly distasteful
that she did not accept that
with a clause requiring her to abstain from
and harmful form of
she had done anything
alcohol and drugs, was imposed.
w r o n g a n d d u r i n g t h e assault. ... Police officers,
Complete case available at www.canlii.org
sentencing hearing she
whose
jobs
require
them
acted out, demonstrating
little concern for the harm
to confront individuals in
she had caused.
In Saskatchewan Provincial
Court the sentencing judge

close quarters, have few
resources to counter an
assault of spitting.”
PAGE 12

www.10-8.ca

Volume 10 Issue 4 - July/August 2010

BREATHALYZER READINGS CAN
BE CONSIDERED IN ASSESSING
CREDIBILITY
R. v. Kernighan, 2010 ONCA 465
The accused was convicted of driving
over 80mg%, contrary to s.253(b) of
the Criminal Code. At trial, the Crown
relied on the testimony of the blood
technician to establish that the two
breathalyzer readings of 140mg% and 130mg%
were both taken within two hours of the alleged
offence. The accused raised the “Carter defence”,
arguing that the readings did not reflect his blood
alcohol content at 9:38 p.m., the time at which he
was caught driving. He said he consumed only five
beers and, based on his account of events, an expert
toxicologist said the accused’s blood alcohol
concentration would have been between 0% and
41mg% when he was pulled over by the police. A
judge of the Ontario Court of Justice, after
considering the defence evidence in light of the
breathalyzer readings and the evidence as a whole,
concluded the accused’s “evidence to the contrary”
was not reasonably capable of belief.
An appeal by the accused to the Ontario Superior
Court of Justice was unsuccessful. The appeal judge
found no error in taking the breathalyzer readings
into consideration when assessing the evidence to
the contrary and the accused’s credibility.

THE ‘CARTER DEFENCE’
What is the Carter defence? It is also known as the
two drink defence. In the National Survey of Crown
Prosecutors and Defence Counsel on Impaired
Driving (June 2009), the Carter or two drink defence
is described as follows:
With the “2-drink” defence, the accused suggests
that the evidential breath test result must be
incorrect because it is incompatible with other
evidence (e.g., testimony of the accused or
witnesses, receipts to demonstrate the amount of
alcohol consumed, etc.). The defence will also
often present testimony from an expert witness
(e.g., a toxicologist) that, based on evidence of
the amount of alcohol the accused reported he/
she consumed, the accused’s BAC would have
been less than that recorded by the evidential
test. [at p. 43]

identity and the trial judge was entitled to consider
the accused’s breathalyzer readings.
Justice Gillese, delivering the unanimous judgment
for the Court of Appeal, agreed with the Crown.
“The presumption of accuracy relates to the
accused’s blood alcohol concentration at the time
the breath sample was taken,” he said. “Challenging
this presumption requires adducing some evidence
that the certificate does not in fact correctly reflect
the accused’s blood alcohol level at the time of the
breathalyzer test.” He continued:

The accused then appealed to the Ontario Court of
Appeal. He submitted that the trial judge erred in
using the breathalyzer readings when assessing his
credibility and the evidence to the contrary. In his
view, there are no circumstances where breathalyzer
readings can be used to assess the credibility of any
evidence to the contrary. The Crown, on the other
hand, contended that there is only a prohibition
against using breathalyzer readings in assessing
credibility when the presumption of accuracy is
challenged. However, here the Crown was not
relying on the presumption of accuracy but on the
oral evidence of the breath technician to establish
the accuracy of the readings. In the Crown’s view,
the accused was challenging the presumption of

PAGE 13

The presumption of identity, on the other hand,
relates to the accused’s blood alcohol
concentration at the time of the offence.
Challenging the presumption of identity requires
adducing some evidence to suggest that the
accused’s blood alcohol concentration at the
time of the offence was not the same as it was at
the time that the breath samples were taken.
The presumption of accuracy allows the Crown
to file the certificate of the breath technician as
proof of the [accused’s] breath sample readings
without having to call the breath technician as a
witness in the trial (s. 258(1)(g)). In the present
case, the Crown chose to call the breath
technician as a witness and, therefore, did not

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Volume 10 Issue 4 - July/August 2010

only on the presumption of identity, contained in
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[T]he prohibition against using breathalyzer
readings to assess the accused’s evidence to the
contrary applies only to situations in which the
Crown is relying on the presumption of accuracy
and the accused is challenging that presumption.
[references omitted, paras. 14-16]

Since the Crown was relying on the presumption of
identity and not the presumption of accuracy, the
trial judge was entitled to consider the breathalyzer
readings in assessing the accused’s evidence to the
contrary. “Where defence counsel challenges the
presumption of identity but not the presumption of
accuracy, a consideration of the breathalyzer
readings does not raise the spectre of circular

reasoning,” said the Court. Such circular reasoning
arises when the breathalyzer readings are used to
prove their own accuracy. But here, where the
presumption of identity challenges the breathalyzer
readings, they are part of the body of evidence that
can be considered in determining whether the
defence evidence is capable of raising a reasonable
doubt. The accused’s appeal was dismissed
Complete case available at www.canlii.org

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LEGALLY SPEAKING:
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Sentencing-Cocaine Trafficking

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DNA ABANDONED:
NO s.8 BREACH

R. v. Usereau, 2010 QCCA 894

23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+
“[C]ocaine has consistently been
A man was shot dead outside his
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home while another person who
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trade, at any level, attracts substantial penalties. It is handgun was found in the area.
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were
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object
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56 at para. 13/'44+
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3.5 year sentence for a guilty plea to possessing cocaine for the purpose of
$ FAG$H015#
restaurant employee, the police
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trafficking
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the accused
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PAGE 14
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)"#$%&'()#'%*<+

Volume 10 Issue 4 - July/August 2010
items were submitted for DNA analysis. There
was a match between the DNA found on the
glass and the profile found on the hood. A
DNA warrant was then obtained and executed
on the accused. Again there was a match. The
accused was arrested and charged with
murder and attempted murder.
At trial in Quebec Superior Court the accused
argued that the warrantless seizure of the glass
and straw breached his Charter rights and the
evidence should have been excluded, along
with the subsequent DNA matches. For without
the DNA evidence generated from the glass, it
was submitted that there would not have been
reasonable grounds to support the application for
the DNA warrant. The Crown, on the other hand,
submitted there was no seizure; it was a mere
collection of objects because the accused did
not have a privacy expectation in the DNA he
abandoned. The trial judge agreed with the
Crown that there was no Charter violation
and, even if there was, the evidence was
nonetheless admissible under s.24(2).
The accused then challenged the trial judge’s
ruling to the Quebec Court of Appeal
contending that, although the glass and straw
had been abandoned, he still retained a
permanent expectation of privacy in his DNA
information. He suggested that, under the DNA
provisions of the Criminal Code, the police
required his consent or at least reasonable
grounds to decode his DNA. Without such consent
or grounds, the police upset the balance between
crime control and individual privacy interests,
thereby violating his right not to incriminate
himself. As well, he raised the concern that
the police could retain his DNA information
in a secret DNA data bank for future use, an
idea at odds with the government’s destruction
requirements of DNA information under the
Criminal Code.
A majority of the Quebec Court of Appeal
rejected the accused’s arguments. In assessing
whether a person abandons an item such that
they cease to have a reasonable expectation of
privacy in it, a court must determine whether

the person asserting s.8 Charter protection has
acted in such a manner that a reasonable and
independent observer would conclude their
assertion was unreasonable. Here, “there can be
little doubt that a reasonable and independent
observer would conclude that [the accused’s]
continued assertion of a privacy interest in a glass
and a straw after he had left the restaurant is
unreasonable in the totality of the
circumstances,” said Justice Hilton. He
continued:
[The accused], however, goes further and
contends that the collection
of DNA evidence in this manner can give rise
to legislatively unauthorized covert banks
of DNA evidence over which no control can
ever be exercised. This apocalyptic view is
highly speculative at best. There is no
evidence that any such covert banks exist or
have ever existed. Nor is there a risk
that DNA profiles obtained without a warrant
under the regime provided for in the Criminal
Code will be permanently maintained as if they
had been obtained with a warrant and their
destruction not subsequently ordered.
This Court has already interpreted restrictively
what permanent use can be made
of DNA samples obtained during a police
investigation pursuant to a warrant under
section 487.051 [Criminal Code], as opposed
to samples taken pursuant to an accused
having pleaded guilty to a designated offence
mentioned in section 487.04 [Criminal
Code]. The time to consider the legality of
samples maintained in a covert bank will
arise if and when it is established that such a
bank exists, and an accused applies to
exclude evidence derived from the use of his
or her DNA samples in such a bank. [paras.
48-49]

This ground of appeal was dismissed, but a new
trial was ordered on other errors by the trial judge.
Complete case available at www.canlii.org

www.10-8.ca
PAGE 15

Volume 10 Issue 4 - July/August 2010

ARREST BASED ON MORE THAN
MERE HUNCH
R. v. Larocque, 2010 QCCA 1171
The police obtained a search warrant
for an apartment that had been
monitored as a suspected outlet for
drug dealers. That day, the accused
attended as a passenger in a vehicle
with another man who was known as being active in
drug trafficking and the main target of the
investigation. Officers in place to execute the
warrant intercepted visitors and potential buyers to
obtain additional evidence. Upon leaving the
premises a few minutes later, the men returned to
their vehicle and left, only to be stopped by a patrol
officer. The accused was arrested for drug
possession, told of his right to counsel, and
searched. The search of the vehicle was
unsuccessful, but four bags of marijuana and one
bag containing 28 tablets of methamphetamine were
found on the accused. He was again placed under
arrest, this time for possession for the purpose of
trafficking. He was taken to the police station where
two additional bags of tablets are found. He
subsequently acknowledged that he had been
involved for about three months in the sale of
narcotics.
At trial in Quebec District Court the accused
submitted that the arrest was unlawful for lack of
reasonable grounds and the subsequent search was
also unreasonable. Thus the substances should have
been excluded as evidence. The trial judge, in
reviewing s.495 of the Criminal Code, noted that
the mere presence of the accused in the car of the
known drug dealer could not provide reasonable
grounds. However, the information the officer had in
preparation for the warrant could contribute to
establish such grounds, even in the absence of direct
knowledge. Similarly, events that the officer
p e r s o n a l l y w i t n e s s e d wh i l e wa t ch i n g t h e
surrounding area prior to the search established the
reasonableness of his grounds for arrest. Seeing a
person leave the scene of an apartment used for the
likely sale of drugs, along with seeing a man known
to police for his involvement in trafficking enter the
residence and then emerge a few minutes later,

could provide a reasonable belief that he was now
in possession of narcotics. It was not required that
the officer be persuaded by the standard of proof
beyond a reasonable doubt. The accused was
convicted on three counts of possession and
trafficking of narcotics. Furthermore, the detention
could also be analyzed as one for investigative
purposes. The reasons for justifying the warrantless
arrest could also be reasonable grounds for
suspecting the accused’s involvement in drugs.
Nevertheless, even if the accused’s Charter rights
were breached, the trial judge ruled the evidence
admissible under s.24(2).
The accused argued before the Quebec Court of
Appeal that his motion to exclude evidence should
have been allowed and that an acquittal should have
followed. In his view, the police lacked reasonable
grounds to make the arrest and therefore the search
was also unreasonable as an incident to it. As well,
the accused submitted that the police should have
obtained a warrant in advance, but did not have
reasonable grounds to do so (just as they lacked the
grounds for arrest).

Arrest
Under s.495(1) of the Criminal Code the officer
could lawfully arrest the accused without a warrant
if he had a reasonable belief in the commission of a
crime. This requires not only a subjective belief in
reasonable grounds, but the belief must also be
objectively justifiable.
Subjectively, the officer had been briefed on the
information obtained in recent weeks by colleagues
responsible for monitoring the apartment targeted by
the search warrant, and he had also been assigned to
watch the apartment during the hours preceding the
arrest so he could see firsthand the extent of backand-forth transactions that took place. Seeing the
accused enter the apartment and leave a few
minutes later, plus the information that the
investigator had been informed about during the
briefing before the raid, provided reasonable
grounds for believing that the accused could be in
possession of drugs when leaving the residence.
Objectively, under the circumstances, any other
officer who received the same information that the

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Volume 10 Issue 4 - July/August 2010
arresting officer had would have been inclined to
conclude from the actions of two individuals that
they had probably bought drugs from the occupants
of the apartment under surveillance. It was not just a
mere hunch, but a subjective belief based on
grounds that were objectively justified.

Search
Under the common law the police may conduct a
search of arrested persons as an incident to arrest.
However, this is not an absolute power. The arrest
must be lawful, the search must have been made
"incidental" to the lawful arrest, and the search must
be conducted reasonably. Here, the arrest was
lawful for drug possession and the search was for
purposes consistent with providing evidence to
substantiate drug offences. The search was also
carried out reasonably.
Since there was no Charter violations there was no
need to consider s.24(2).
Complete case available at www.canlii.org

EVIDENCE DISCOVERED AFTER
ARREST CANNOT BE USED TO
JUSTIFY IT
R. v. Boudreau-Fontaine, 2010 QCCA 1108
A citizen called 911 fearing that a
suspicious person parked near his
home in a red Mitsubishi was in
possession of a laptop and was
connected to a wireless network to
steal data. Patrol officers approached the scene and
saw a red Mitsubishi car. It was parked bumper to
bumper with the car behind it. The accused was in
the car and had a computer. One of the officers said
he saw a blue screen divided into two sections that
looked like the windows of MSN, a chat service. As
police approached the car the accused closed the
applications of his computer. He was sweating and
seemed nervous. He said he was leaving a friend’s
house and stopped to look at his computer files
relating to investments. He had a digital camera with
him, stating he had it to take pictures of cars on the
street. He provided his driver’s licence. A computer
check revealed that he was on probation following a

conviction for production and distribution of child
pornography and one of the conditions prohibited
him from accessing the Internet and possessing a
firearm. In another case, he was restricted from
accessing the Internet and being in the presence of
minors unless accompanied by adults. He was
arrested for breaching his probation, handcuffed,
searched, read his rights, and placed in the back of a
patrol car. His computer was seized and his vehicle
searched. Several items were found, including
binoculars, knives, latex gloves, a mobile phone, a
keyboard, a digital camera, and a GPS. A search
warrant was obtained for examining the computer to
show that it was connected to the Internet, thereby
violating the conditions of his probation.
At trial in Quebec Court the judge ruled that the
accused’s rights under s.8 of the Charter had been
breached and the evidence was excluded. The judge
rejected the officer’s testimony that he saw the
accused visit MSN. The arrest and search were
unlawful and the accused was acquitted of
possessing child pornography and of failing to
comply with a probation order that prohibited him
from accessing the Internet.
The Crown then appealed to the Quebec Court of
Appeal submitting, among other grounds, that the
trial judge erred in finding that the police had no
reasonable grounds to arrest the accused and,
therefore, the evidence was not obtained in breach
of s.8. As well, even if there was a Charter violation,
the Crown suggested that the evidence should have
been admitted.
Since the Crown never argued the law applicable to
investigative detention, the Court of Appeal only
analyzed the law regarding arrest under s.495 of the
Criminal Code. The vehicle search was warrantless;
therefore the Crown was required to demonstrate, on
a preponderance of evidence, that it was not
unreasonable. For a search be reasonable, it must be
authorized by law, the law must be reasonable, and
the search must be conducted in a reasonable
manner. If the power to search stems from the
exercise of common law to search as an incident to
arrest, the arrest must be lawful, the search must be
incidental to the arrest, and the search must be
executed reasonably. For an arrest to be lawful, the

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Volume 10 Issue 4 - July/August 2010
peace officer must believe on reasonable grounds
that a crime has been committed and the reasons
must be objectively justified.
In this case, the Crown failed to establish on a
preponderance of evidence that the officers had
sufficient information to justify the accused’s arrest
for violating probation in connection with accessing
the Internet. In so deciding, it was important that the
reasons provided by the police be examined without
taking into account the later discovery of the
contents of the computer, as this information was not
available when the arrest was made. At the time of
the arrest the police had no reason to believe that
the accused was connected to the Internet.
Consequently, the trial judge’s finding that the police
had no reasonable grounds to arrest the accused was
not unreasonable. Although the police cannot be
blamed for wanting to improve their grounds before
making an arrest, they can not use the later
discovery of evidence to conclude that there were
reasonable grounds at the time they made the arrest.
Nor could the results of the computer analysis be
used to assess the police officer’s credibility and the
reliability of his testimony in showing that he had
reasonable grounds. Whether it is used to show
reasonable grounds or confirm an officer’s testimony,
the ban on taking into account evidence
subsequently discovered applied. In either case, the
reasons given by the police become reasonable
simply because they are proven correct. The proper
approach is to assess the grounds at the time of the
police action. The evidence discovered later may
show, for example, that the intuition of the officer
was justified or that it was true, either because he
was right, or because, as in this case, he was lucky.
Constitutional rights cannot be based on chance or
on another form of uncertainty. The Court of Appeal
concluded that the accused’s arrest was illegal and
that the search of the vehicle as well as the ensuing
seizure were unreasonable and violated s.8. The
evidence was excluded.
Complete case available at www.canlii.org

www.10-8.ca

SEARCH INCIDENTAL TO ARREST
DOES NOT REQUIRE EXIGENCIES
R. v. Nolet et al, 2010 SCC 24
The accuseds were travelling in
Saskatchewan along the TransCanada Highway in with an empty
53-foot Quebec-licensed
commercial tractor-trailer unit. They
w e r e s t o p p e d i n a r a n d o m ch e ck u n d e r
Saskatchewan's Highway and Transportation Act
(H&TA). Vatsis was driving, Nolet was in the
passenger seat, and another man, now deceased,
was in the sleeping compartment. It was determined
that the truck’s registration was not pro-rated to
include the province, the appropriate fuel sticker
had expired, and the log-book was incomplete and
indicated that the truck normally operated east of the
Manitoba border. On request, the accused agreed to
let the officer inspect the empty trailer. The officer
thought the trailer “looked odd” but, being alone,
decided not to enter the trailer. He decided to
pursue the defective trucking document issues by
inspecting the interior of the tractor and to look for
more documents, such as previous bills of lading,
tickets, and other log books. In the sleeping
compartment he found a small duffle bag. When he
touched the bag, its contents crackled like paper, so
he opened it, assuming it contained old log-books or
travel documents. However the bag contained
$115,000 bundled in small denominations, mainly
$20 bills. His experience suggested the packaging
of cash was typical of drug transactions and the men
were arrested for possessing the proceeds of crime.
After back-up arrived the trailer was again inspected.
The interior measurements were about three feet
shorter than the exterior length, indicating the
presence of a hidden compartment. The rig was
driven about 10 km to the nearest police station
when, about an hour and a half later, the officers
opened up the hidden compartment and discovered
392 pounds of packaged marijuana valued at
between $1.1 and $1.5 million. The next day, an
officer from the Integrated Proceeds of Crime Unit
searched the tractor-trailer rig for the purpose of
creating an inventory of the contents pursuant to
policy. More documentation was discovered that

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Volume 10 Issue 4 - July/August 2010
was relevant to the H&TA offences, including factory
decals, registration papers and permits for different
companies that, when applied to the exterior, would
make the truck look completely different.
At trial in the Saskatchewan Court of Queen’s Bench
the judge concluded that police inspection powers
under the legislation governing commercial vehicles
on the highway did not extend to permit a
warrantless search of the small duffle bag located in
the sleeping compartment of the tractor unit in these
circumstances; where the officer had no reasonable
grounds to believe that criminal offences had been
committed. While the expectation of privacy in a
commercial vehicle is generally less than in a private
vehicle, which is generally less than in a private
home or office, this lesser privacy interest was still
entitled to Charter protection. The judge found the
warrantless searches were unreasonable and the
evidence of the money and the marijuana was
excluded. The accuseds were acquitted.

could not search for contraband as one of the
defined purposes of the search. In her view, the cash
was inadmissible under s.24(2), but the marijuana
should have been admitted. Thus, she would have
upheld the accused’s acquittal on the proceeds of
crime charge, but order a new trial in relation to the
drug charges.
The accused then appealed to the Supreme Court of
Canada. He argued that his detention was arbitrary
under s.9 of the Charter and the searches that
followed were unreasonable under s.8.

Phase I: the Initial Stop
Random roadside stops for highway purposes must
be limited to their intended objectve and cannot be
turned into an unfounded general inquisition or an
unreasonable search. It does not provide a general
search power for searching every vehicle, driver, and
passenger that is pulled over. However, “a roadside
stop is not a static event,” said Justice Binnie,
speaking for the entire Supreme Court. “Information
as it emerges may entitle the police to proceed
further, or, as the case may be, end their enquiries
and allow the vehicle to resume its journey.”

On appeal by Crown to the Saskatchewan Court of
Appeal, a majority found that a mere hunch or
speculation that a trailer had been altered or refabricated, even if hidden contraband was the
suspected reason for the
Here, the initial stop was valid. The accuseds’
alteration, did not taint an
“A roadside stop is
truck was stopped to conduct an H&TA
otherwise lawful regulatory
not a static event.
document check. This was not a case where
search. The accuseds had not
Information
as
it
the accused had been pulled over for no valid
established that the police were
purpose,
nor was the random check stop
using the highway regulatory
emerges may entitle
specifically set up to also locate contraband
inspection as a pretext for their
the police to proceed as well as highway infractions. Instead, the
actions. The detention was not
further, or, as the
random stop program was directly related to
arbitrary and the search for
documents was lawful. There case may be, end their legitimate highway purposes; commercial
trucking was regulated by legislation in every
was no s.8 Charter breach and
enquiries
and
allow
aspect.
Thus, the initial stop under s.40 of
the money should not have
been excluded. The arrest was
the vehicle to resume Saskatchewan’s Highway Traffic Act did not
breach s.9.
lawful and the marijuana was
its journey.”
located during a proper search
Phase II: the Regulatory Search
i n c i d e n t a l t o a r r e s t . Th e
marijuana and cash was admissible and a new trial
Under s.32(1) of Saskatchewan’s Motor Carrier Act a
was ordered.
peace officer is authorized to “order the driver or
owner of a vehicle to submit the vehicle . . . or the
The dissenting justice ruled that the police could not
cargo being carried on such a vehicle to any
rely on a regulatory search power once their “focus”
examination and tests that the peace officer
became criminal activity. The search authority
extended to regulatory matters only and police
considers necessary”. Similarly, s.63(5) of the H&TA

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Volume 10 Issue 4 - July/August 2010
provides authority to conduct a warrantless search of
a vehicle for evidence of a regulatory contravention
under the H&TA. Here, “after the initial stop, the
officer quickly obtained reasonable grounds to
believe that the [accuseds] were operating the truck
in violation of the H&TA, having regard to the lack
of a truck licence valid in Saskatchewan, the display
of an expired fuel sticker and inconsistent entries in
the driver’s log-book,” said Justice Binnie. “At the
time the officer began to investigate the cab of the
tractor unit, it was quite within his statutory authority
to search for further evidence related to H&TA
offences.” Thus, the continued detention was not
arbitrary and the search of the tractor-trailer unit for
relevant papers was authorized by the H&TA.
As for the search in the sleeping area of the cab,
including the space behind the front seats, there was
a reasonable expectation of privacy. Living quarters,
however rudimentary, are not a Charter-free zone.
But the level of expectation is low, even in the
sleeping area, since the cab of a tractor-trailer rig is
also a place of work. The entire cab is therefore
vulnerable to frequent random checks in relation to
highway transport matters.
The continued lawful detention and search under s.
63(5) did not become unlawful because the officer
began to suspect criminal activity. Police officers
patrolling highways are interested in many offences,
including criminal ones as well as provincial
matters. However, “police power, whether conferred
by statute or at common law, is abused when it is
exercised in a manner that violates the Charter rights
of an accused,” said Justice Binnie. He continued:

a highly regulated industry. Breaching a law will
not in itself reduce an individual’s legitimate
privacy expectations (otherwise, it would be
argued that offenders would always forfeit s. 8
protection relevant to evidence of the offence),
but here, as events progressed from the police
stop to the initial regulatory search of the cab,
there was no police invasion of the minimal
p r iva cy i n t e r e s t t h a t e x i s t e d . … “ [ T ] h e
expectation that the search might also uncover
drugs” … did not convert a Charter-compliant
regulatory search into a Charter violation.
[references omitted, para. 43]

The paper-like contents of the bag felt more like
items connected to the H&TA inquiry than personal
clothing or drugs. The warrantless search was
authorized by s.63(5) of the H&TA and it was not
unreasonable for the officer to open the bag. Given
the very limited privacy interest, the search of the
duffle bag did not breach s.8. The cash was then in
plain view.

Phase III: the Arrest
Although the discovery of a large sum of cash may
not on its own constitute objective, reasonable
grounds to arrest for possession of proceeds of
crime, its existence may contribute to such grounds
if the circumstances create a reasonable inference
that the money was proceeds of crime:

Here, the context was sufficient to supply the
officer with the “something more”: three men in
an empty, improperly licensed truck making a
run across the prairies at midnight on a highway
where the truck was not entitled to be. The
explanation for where the cargo had gone, and
I do not agree that the officer’s concurrent
why the truck was apparently empty as it headed
interest in contraband (even if it
east, did not correspond to the
was “predominant”) rendered the
documents,
which were riddled
“Looked at individually no
H & TA s e a r c h u n l a w f u l o r
with multiple discrepancies. The
unreasonable within the scope of
single [factual element] is unexplained $115,000 was in bills
s. 8 of the Charter. As already
likely sufficient to warrant of small denominations wrapped
stated, knowledge of transportation
in bundles which the police officer
legislation is a requirement to be
the grounds for the
believed to be typical of drug
licensed as a driver. Commercial
dealings… While the Crown did
drivers are well aware of the detention and seizure. The not attempt to qualify the officer as
police authority to conduct
whole is greater than the
an expert on drug monies, the
random stops and to search a
officer’s
experience and training
sum of the individual parts
vehicle for evidence of
supported the probative value of
infractions. Commercial trucking is
viewed individually.”
his evidence on this point. The

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Volume 10 Issue 4 - July/August 2010
cumulative effect of the factual elements
previously described provides objective support
for the officer’s subjective belief that he had
reasonable and probable grounds to make the
arrests. … “Looked at individually no single one
is likely sufficient to warrant the grounds for the
detention and seizure. The whole is greater than
the sum of the individual parts viewed
individually.” [references omitted, para. 48]

was discovered during a proper search for evidence
incidental to a valid arrest.

Phase V: the Inventory Search

Phase IV: Search After Arrest
The police may search as an incident to arrest if they
are trying to achieve some valid purpose connected
to the arrest, such as:
ensuring the safety of the police and public;
protecting evidence from destruction at the
hands of the arrestee or others; or
discovering evidence which can be used at
the arrestee’s trial.”

The Supreme Court ruled that the inventory search
was invalid. The inventory search by itself did not
serve a valid objective in pursuit of the ends of
criminal justice because its purposes related to
concerns extraneous to the criminal law. The
officer’s work in inventorying the vehicle was
incidental to police administrative procedures rather
than to the arrest of the accused. Therefore, it did
not meet the requirements of a warrantless search
and the inventory search breached s.8.

s.24(2)
Despite the breach resulting from the inventory
search, the fruits of that search were admissible
under s.24(2):

Here, the accuseds were arrested for possessing
proceeds of crime. “It was clearly ‘incidental’ to this
arrest to search the vehicle in which the cash was
found for evidence of the criminal activity to which
the money related,” said Justice Binnie. “The
officers’ belief that this purpose would be served by
a search of the trailer (given their previous roadside
observation of the discrepancy in the dimensions)
was itself reasonable. The important consideration is
the link between the location and purpose of the
search and the grounds for the arrest.” The two hour
delay between the roadside arrest and the search of
the trailer’s secret compartment at the police station
did not render this search unreasonable. There
remained a close causal and spatial connection
between the arrest and the search.
As well, there was no requirement for the police to
demonstrate a distinct and separate showing of
reasonable grounds to search. Nor was a showing of
exigent circumstances required to further search the
trailer without first obtaining a search warrant. The
trigger for the warrantless search power incidental to
arrest is not “exigent circumstances” but connection
or relatedness - to search for evidence of the crime
to which the arrest related. The search and seizure of
the marijuana did not breach s.8 of the Charter; it

The task for courts remains one of achieving a
balance between individual and societal
interests with a view to determining whether the
administration of justice would be brought into
disrepute by admission of the evidence. In my
view, the evidence found in the “inventory
search” which consists largely of additional
trucking documents plus the potentially
misleading “decals” ought not to be excluded.
Had the RCMP officers continued their postmidnight search incident to arrest they would
have been within their rights to do so, and the
subject evidence would have been readily
discoverable at that time. The subsequent
inventory search for administrative purposes of
an impounded truck that has already been
searched (though less meticulously) should be
classified as a technical breach with a minimal
impact on the Charter-protected interests of the
[accuseds]. The evidence ought to be available
for whatever relevance it may have to assist in
the resolution of the outstanding charges on their
merits. [para. 54]

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

PAGE 21

Volume 10 Issue 4 - July/August 2010

SUBSEQUENT SENTENCE
INVALIDATES PROBATION
ORDER

imposed, in respect of any prior sentence that is a
component part of the ‘one sentence’, becomes
invalid,” said Justice Wells for the Court of Appeal.

R. v. Howse, 2010 NLCA 40

Here, the deemed “one sentence”, exceeded two
years. Thus, the probation order made for the break
and enter and breach of recognizance offences,
while valid at the time that it was made, became
invalid when the second sentence of six months was
imposed for the other offences. The Crown’s appeal
was allowed and the probation order was set aside.

The accused was sentenced in
Newfoundland Provincial Court to
two years imprisonment and three
years probation after pleading guilty
to two counts of break and enter (s.
348(1)(b) Criminal Code (CC)) and three counts of
breach of recognizance (s.145(3) CC). About 19
months later he was convicted of several more
offences (s.355(b) CC x 3, s.430(1) CC x 2, and s.
4(1) Controlled Drugs and Substances Act) for which
he was sentenced to six months imprisonment.
Th e C r o w n s u c c e s s f u l l y a r g u e d t o t h e
Newfoundland Court of Appeal, with the accused’s
consent, that the imposition of the six month
sentence made the probation order invalid and
therefore it should be set aside. Section 731 of the
Criminal Code allows a court to impose a probation
order in addition to imprisonment provided that the
term of incarceration does not exceed two years. But
this provision must be read in conjunction with s.
139(1) of the Corrections and Conditional Release
Act which requires two overlapping sentences be
treated as “one sentence”, starting on the date that
the first sentence commenced and ending on the
date the last sentence expired. “Where that
unexpired ‘one sentence’ exceeds two years, a
probation order may not be imposed, and any
probation order that may have been properly

Complete case available at www.canlii.org

BY THE BOOK:
s. 139(1) Corrections and Conditional
Release Act
Additional Sentences
Where a person who is subject to a
sentence that has not expired
receives an additional sentence, the
person is, for the purposes of the
Criminal Code, the Prisons and
Reformatories Act and this Act, deemed to
have been sentenced to one sentence
commencing at the beginning of the first of
those sentences to be served and ending on
the expiration of the last of them to be served.

Sentence 1

2 yrs (24 months) imprisonment

+ 3 years
probation

Imposed: July 16, 2007

(s.731 CC)

How it Works

Sentence 2

6 months
Imposed: Feb. 23, 2009

s.139(1) CCRA - overlapping sentences
Deemed “one sentence” - 769 days = 2 years, 1 month, 7 days excluding end date

PAGE 22

Probation order
becomes invalid
because s.139(1)
CCRA deems the
two overlapping
sentences as “one
sentence”, which
exceeds 2 years.
Under s.731 a
probation order
may only be
imposed on a
sentence not
exceeding 2 years.

Volume 10 Issue 4 - July/August 2010

PROBING PROBATION FACTS

PROBATION BY OFFENCE TYPE & LENGTH

What is probation?

Offence Type

Percent probation

Mean
(Average length)

“An offender sentenced to a term of probation remains
in the community, but is subject to a number of
conditions for the duration of the probation order.
Some conditions are compulsory and apply to all
offenders on probation. These include keeping the
peace and appearing before the court when required to
do so. The optional conditions vary from case to case,
and can include performing community service,
abstaining from the consumption of alcohol and
attending treatment. Violating the conditions of a
probation order is a criminal offence subject to possible
prosecution that could result in a maximum sentence of
imprisonment of two years. Probation is mandatory in
cases where the accused is given a conditional
discharge or a suspended sentence. Probation may be
supervised or unsupervised.”

• The most frequently imposed sanction in adult
criminal cases is probation, given 45% of the time.
A term of imprisonment is given in 34% of cases
while fines are given in 30% of cases;
• Crimes against the person are most likely to include
a term of probation. Seventy five percent (75%) of
guilty cases involving crimes against the person
received probation while 57% of property crime
offenders received probation. Administration of
justice offences, such as fail to appear, breach of
probation, unlawfully at large, and failing to comply
with orders, were given probation about 34% of the
time;
• About 28% of adults receiving probation for crimes
against the person were also sentenced to a term of
custody;
• The most common adult probation length was
between six months to a year (51%) followed by
terms of probation between one to two years in
length (31%);
• The longest term of probation an offender can
receive is three years. This is a statutory limit
prescribed by the Criminal Code, s732.2(2)(b):
“no probation order shall continue in force for
more than three years after the date on which the
order came into force”

• The mean, or average, adult probation length was
451 days. Aside from homicide and attempt murder,
the longest average probation lengths attach to
sexual offences*, such as sexual interference, sexual
exploitation, voyeurism, incest, child luring, and
making, distributing, possessing, and accessing
child pornography (732 days) followed by robbery
(686 days), sexual assault (665 days), and criminal
harassment (619 days);

Adult

Youth

Adult

Youth

Criminal harassment

89.9%

67.1%

619 days

390 days

Common assault

80.1%

60.3%

399 days

348 days

Uttering threats

79.1%

70.6%

496 days

344 days

Other sex offences*

73.6%

74.1%

732 days

516 days

Major assault

70.4%

71.8%

515 days

381 days

Mischief

69.0%

60.2%

375 days

352 days

Sexual assault

68.3%

75.5%

686 days

503 days

Fraud

64.9%

65.9%

549 days

379 days

Break and enter

64.6%

75.3%

549 days

387 days

Weapons offences

54.2%

70.3%

481 days

382 days

Theft

52.0%

59.7%

406 days

341 days

Robbery

50.8%

76.2%

730 days

411 days

Disturb the peace

46.2%

45.5%

318 days

313 days

Possess stolen property

45.8%

66.8%

421 days

346 days

Prostitution

44.3%

50.0%

381 days

x

Breach of probation

36.5%

47.5%

403 days

366 days

Drug possession

32.5%

48.1%

319 days

276 days

Drug trafficking

31.6%

78.4%

437 days

352 days

Fail to appear

25.8%

44.3%

356 days

374 days

Unlawfully at large

17.3

24.9%

375 days

346 days

Impaired driving

10.9%

26.2%

402 days

322 days

• The mean, or average, adult custodial sentence for
breaching probation was 29 days while the average
fine given is $301;
• The mean, or average, youth (open or closed)
custodial sentence for breaching probation was 48
days. In Nunavut, 86.2% of youths found guilty
received probation while in Saskatchewan that
number dropped in half to 43.1%.
Source: Statistics Canada, Summer 2010, “Adult criminal court
statistics, 2008/2009”, catalogue no. 85-002-X, Vol. 30, no. 2.
Source: Statistics Canada, Summer 2010, “Youth court statistics,
2008/2009”, catalogue no. 85-002-X, Vol. 30, no. 2.

PAGE 23

Volume 10 Issue 4 - July/August 2010

POLICE REPORTED DATING
VIOLENCE
A recently released Statistics Canada publication
provides insight into dating violence in Canada. The
report, entitled “Police-reported dating violence in
Canada, 2008”, was released in June 2010.
Highlights of the report include:
• there were 22,798 incidents of dating violence
reported to Canadian police in 2008. This
compares to 43,845 incidents of spousal
violence reported during the same time period;
• dating relationships accounted for 27% of all
violent incidents perpetrated by intimate
partners;
• dating relationships accounted for 30% of all
homicides perpetrated by intimate partners,
while spousal and common law relationships
accounted for the remaining 70%;
• 82% of victims reporting dating violence to
police were female;
• for the five year reference period from
2004-2008, police reported dating violence has
increased. Rates of dating violence for female
victims has increased 40% while rates for male
victims increased 47%;
• the most frequently committed violent offence
in dating relationships was common assault
while homicide was the least committed;
Offence Type

Number

%

Homicide/Attempt

14

0.06%

Sexual Assault

648

2.84%

Major assault (level 2 & 3)

2,415

10.59%

Common assault (level 1)

11,438

50.17%

Forcible confinement

735

3.22%

Criminal Harassment

3,235

14.19%

Uttering threats

2,669

11.71%

Indecent or harassing phone calls

1,354

5.94%

Other violent offences

290

1.27%

22,798

100%

Total Offences

• 69% of dating violence incidents reported to
police resulted in charges;
• 71% of incidents involving female victims
resulted in charges while 57% of incidents
involving male victims resulted in charges;
• about 10% of male victims of dating violence
and 1% of female victims involved same-sex
relationships;
• 57% of dating violence occurs once the
relationship has ended - it was perpetrated by a
former partner;
• most dating violence occurred in a private
dwelling;
Location of dating violence

%

Residence of victim

45%

Residence of accused

12%

Residence of neither victim or accused

14%

Not a private dwelling

21%

Unknown

8%

• the majority of victims of dating violence (52%)
reported no injury, did not involve the use of a
weapon, nor physical force. 41% received
minor physical injury (no professional medical
treatment was required or only some first aid
such as a band aid or ice) and 2% received
major physical injury (requiring professional
medical attention at the scene or transportation
to a medical facility). In 5% of incidents it was
unknown whether injury to the victim was
sustained;
• 52% of dating violence incidents involved no
weapon, 40% involved the use of physical
force, and 6% involved a weapon. In 2% of
incidents it was unknown what method of
violence was used;
• of the 1,307 incidents involving weapons, 25
involved a firearm, 409 involved a knife or
other cutting instrument, 190 involved a club or
blunt instrument, and 683 involved other
weapons, such as explosives, fire, motor
vehicles, or other devices to poison.
Source: Statistics Canada, Summer 2010, “Police-reported
dating violence in Canada, 2008”, catalogue no. 85-002-X,
Vol. 30, no. 2.

PAGE 24

Volume 10 Issue 4 - July/August 2010

BC’s NEW BODY ARMOUR
CONTROL ACT
Effective July 1, 2010 British Columbia’s Body
Armour Control Act (BACA) became law.

Under s.13(5) it is an offence for a person to
“obstruct, impede or refuse to admit an inspector or
a peace officer who is exercising powers or
performing duties under this Act or a warrant issued
under, or for the purposes of enforcing, this Act.”

Search

What is body armour?
The meaning of body armour is found in s.1 of the
BACA. It states that "body armour" is:

Section 21 authorizes the warrantless search for and
seizure of body armour:
s.21 (1) If an inspector or a peace officer has
reasonable grounds for believing that a person is
in possession of body armour in a public place
and, on request of the inspector or peace officer,
the person
(a) refuses or is unable to produce a valid body
armour permit, and
(b) is unable to identify the basis on which he or
she is exempt under section 2 (3) from the
requirement to hold a body armour permit,
the inspector or peace officer, without a warrant,
may search the person and any personal
property in that person's possession and seize
any body armour found.
(2) Section 23 (4) and sections 24 to 24.2 of the
Offence Act apply in respect of body armour
seized under subsection (1) of this section and,
for the purposes of section 23 (4) of the Offence
Act, an inspector is deemed to be a peace
officer.
(3) If, under section 24 (2) (a) of the Offence Act,
a justice orders that body armour referred to in
subsection (2) of this section be detained,
despite section 24 (3) of the Offence Act, the
body armour may be detained for up to one year
before an order under section 24 (5) of that Act,
authorizing its continued detention, is required.

(a) a garment or item designed, intended or
adapted for the purpose of protecting the body
from projectiles discharged from a firearm, as
defined in section 2 of the Criminal Code, or
(b) a prescribed garment or item;

Schedule 2 of the Body Armour Control Regulation
prescribes the additional following garments as body
armour:
(a) a garment or item designed, intended or
adapted for the purpose of protecting the body
from puncture or stab wounds intended to be
inflicted by another person:
(b) panels or plates that
(i) protect the body from projectiles
discharged from a firearm or puncture of
stab wounds, and
(ii) are designed to be inserted into pockets
of vests, jackets or other garments to
create or enhance body armour.

Offences
There are several offences created under the BACA
including possession of body armour except under
the authority of a permit (s.2(2)). The legislation
provides an exemption to individuals from requiring
a permit to possess body armour while performing
the job for which the exemption is granted. These
include licensed armoured car guards, private
investigators, security consultants, security guards,
body armour salespersons, peace officers, sheriffs,
corrections officers, and conservation officers, and
individuals who possess a valid firearms licence
issued under the Firearms Act (Canada).

Public Protection
Section 10 of the BACA allows the Registrar of
Security Services to immediately and without notice
cancel or suspend a body armour permit if he or she
considers it necessary to protect the pubic. Written
notice of this decision along with the reasons for it
must then be provided to the permit holder as soon
as practicable. The permit holder must then
immediately surrender the permit and the body
armour.

PAGE 25

Volume 10 Issue 4 - July/August 2010
The Violation Ticket Administration and Fines
Regulation has also been amended to permit the
service of Violation Tickets for offences under the
BACA.
As well, an individual committing an offence under
s.13 could be liable on conviction to a fine of not
more than $10,000 or imprisonment for not longer
than 6 months, or both. A business entity that
commits an offence under s.13(2) is liable on
conviction to a fine of not more than $100,000 or
imprisonment for not longer than 6 months, or both.
A charge for an offence under s.13 may not be laid
more than one year after the commission of the
offence.

Application for a NEW
Permit to Possess Body Armour
Before applying, read, understand and be able to comply with all requirements as set out under the Body Armour Control Act
and Regulations, and as outlined on the Security Industry and Licensing website: www.pssg.gov.bc.ca/securityindustry
Fees cannot be refunded.

PART 1: FEES & TERMS
PAYMENT MADE BY:

! bank-issued certified cheque or money order made payable to the Minister of Finance
! credit card (attach Authorized Credit Card Usage Form SPD0606) DO NOT SEND CASH - PERSONAL CHEQUES NOT ACCEPTED

TERM OF PERMIT & FEE:

5 Years - $90

TOTAL ENCLOSED: $ _________________

PART 2: APPLICANT INFORMATION
Legal Name: (Surname) ______________________________________________________ (Given) ____________________________ (Middle) ________________________________________
Additional Name(s) (alias, maiden name, etc.): (Surname) ________________________________________(Given) _______________________ (Middle)______________________________
(Surname) ________________________________________(Given) _______________________ (Middle)______________________________

Date of Birth: (year/month/day) ____________________________________________________________
Citizenship:

(check ["] one)

Gender: ! Male ! Female

! I was born in Canada—attached is a clear copy of my birth certificate or valid Canadian Passport.
! I was not born in Canada but now have citizenship—attached is a copy of my valid Canadian Passport or Citizenship Certification Card.
! I was not born in Canada, but I am legally entitled to work in Canada. Attached is a clear copy of my Record of Landing (IMM1000),
Confirmation of Permanent Resident Document (IMM5292), Permanent Resident Card, OR
my current work or student permit which is numbered: #__________________ and expires (year/month/day)______________________

! I am a citizen of (name of country) __________________________________ and have attached copy of official documentation as proof.
Photo Identification: One clear copy of your photo ID is required - it must be current. Check off the type you are attaching:
(check ["] one)

! Driver’s Licence ! Passport ! BCID ! Canadian Firearms Licence
! Canadian Native Status Card (must have photo)
! Canadian Permanent Resident Card
! Valid Government-Issued Photo ID: (describe) __________________________________________________________________

Physical Description: (this information will appear on your permit)

Height (ft./inches or cms): ________ Weight (lbs or kgs):_____________
Hair Colour: ! black ! blonde ! brown ! red ! gray ! bald
Eye Colour: ! blue ! brown ! black ! green ! hazel

Contact Information: (your contact information will not appear on your permit)

Residential Address: Apt.#__________ Street Address _____________________________________________________________________________________________________________
City/Town: _______________________________________________________________ Province: _____________________ Postal Code:________________________

Mailing Address: If your mailing address is different than your residential address, please provide it below:
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Phone: ( ________ ) __________________________

E-Mail Address ______________________________________________________________________________________________
! Yes, send an electronic copy of my permit to this e-mail address when the original permit is mailed to me.

Photograph (this photo will appear on your permit):
! Yes, I have attached a passport-quality photo of myself that has been taken within the last 12 months.
Criminal History:
! No

! Yes ... I have a criminal record.

FORM #SPD0600
PSSG10-007 (07/2010)

Ministry of Public Safety and Solicitor General

Policing and Community Safety Branch, Security Programs and Police Technology Division
PO Box 9217 Stn Prov Govt, Victoria BC V8W 9J1
Phone: (250) 387-6981 (if outside Victoria, call through Enquiry BC: Vancouver 604 660-2421 / elsewhere in BC, toll-free 1-800-663-7867)
Fax: (250) 387-4454 E-mail: sgspdsec@gov.bc.ca
Security Industry and Licensing website: www.pssg.gov.bc.ca/securityindustry

PAGE 26

DID YOU KNOW...
... that on March 26, 2009 a private
members bill (Bill C-349) introduced by MP
Dawn Black (NDP: New WestminsterCoquitlam, BC) received first reading in the
House of Commons. The bill proposed to
amend the Criminal Code and make it a
criminal offence to use body armour while
committing or attempting to commit an
indictable offence or during flight after
committing or attempting to commit such
offence. Body armour would have been
defined as “any material worn by an
individual for the purpose of protecting his
or her body from gunfire or stabbing,
regardless of whether the material is worn
alone or is used as a complement to a
garment or other material.” A first offence
would have brought a minimum jail
sentence of six months and a maximum of
five years. A second or subsequent offence
would result in a one year minimum
sentence. All sentences would have been
consecutive to any other punishment arising
out of the same event or series of events.
However, pursuant to a decision made by
the Speaker of the House on March 3, 2010
the bill was not maintained.

Volume 10 Issue 4 - July/August 2010

ARMOURED VEHICLES IN B.C.:
PROPOSED BILL 16 (2010)
Th e B r i t i s h C o l u m b i a
government has passed Bill
16, the Armoured Vehicle
and After-Market
Compartment Control Act,
that will, once in force, establish the requirement for
a person who operates an armoured vehicle to hold
a permit or, in some cases, be exempted. “Armoured
passenger vehicles, the evidence shows, facilitate
gang and gun violence”, said the Honourable Mike
de Jong when introducing the Bill. “[Armoured
vehicles] embolden gang members, give them a
feeling of invincibility and a feeling that they can act
violently and with impunity.” As well, this Bill will
prohibit after-market compartments in vehicles,
unless the vehicle owner is exempt from the
prohibition, and require persons installing aftermarket compartments to report each installation to
the police. “These after-market compartments are
used by gang members to hide not just weapons but
also drugs and cash, and to further illegal activities,”
said de Jong.

In the Bill, an “armoured vehicle” is defined as “a
motor vehicle manufactured or adapted for the
purpose of protecting its occupants from explosions
caused by explosive devices or from projectiles
discharged from a firearm, as defined in section 2 of
the Criminal Code.” An “after-market compartment”
is “a compartment in a vehicle, which ... (a) is not
part of the manufacturer's design of or equipment for
the vehicle, and (b) is incorporated into the
equipment or structure of the vehicle after it has left
the factory in which it was manufactured.”
Section 2 of the legislation will prohibit the
operation of an armoured vehicle except under
permit. The prohibition, however, would not apply
to a peace officer, a security worker licence holder
whose employment involves operating an armoured
vehicle, armoured car operators, or a person
exempted by regulation. Section 7 will ban the
ownership, operation, or use of a vehicle that
contains an after-market compartment, unless
exempted under regulation. And anyone who installs
an after-market compartment in a vehicle will be
required to immediately contact the nearest
provincial or municipal police office and provide
the officer in charge with the name and address of

Armoured police vehicle
on display at the 2010
Abbotsford International
Airshow.

PAGE 27

Volume 10 Issue 4 - July/August 2010
the vehicle’s owner; the make,
model, and year of the vehicle;
and the location in the vehicle
where the compartment has been
placed and how it can be
opened. Under s.12, a person
who contravenes either ss. 2 or 7
commits an offence and is liable
on conviction to a fine of not
more than $10,000 and/or six
months in jail. If it is a business
entity that commits the offence
the maximum fine will rise to
$100,000. The time limit for
laying charges will be one year
after the date of the act or
omission that constituted the
offence.

“[T]here is a developing, emerging
phenomenon where people —
particularly, it seems, those
engaged in criminal activity —
have decided that as a way to
enhance their own feelings of
invincibility, they will purchase
vehicles and have them altered
and have armoured plating
attached to them and in effect
create a form of civilian tank — a
tank on the road that they can
drive around. If they become
involved in violence, gunfights or
that sort of thing or are
confronted by other elements,
criminal elements with whom they
have disputes, they will feel better
protected. It gives these people a
sense of invincibility. It seems
clear that it is influencing their
Police Powers
behaviour and, as a result, putting
Section 10 of the Bill will provide the vast majority of law-abiding
citizens at risk in the process.” police with powers of seizure:

warrant is obtained.

If a vehicle is seized under this
section a report to a justice will
be required under B.C.’s Offence
Act. But the vehicle can be
detained for up to a year before
continued detention is required.
Normally a thing seized may only
be detained for three (3) months
under the Offence Act before an
order for continued detention is
required.
If a vehicle contains an aftermarker compartment and the
owner is not exempt, under s.11 a
peace officer may order the
owner, operator, or user of the
vehicle to cease operating or
using it until the after-market
compartment has been removed.

Section 12 will create an offence
for a person to obstruct, impede
or refuse to admit a peace officer
who is exercising powers or performing duties under
this Act or under a warrant issued for the purposes of
enforcing this Act.

Honourable Mike de Jong
(Monday May 3, 2010)

s.10(1) If a peace officer has
reasonable grounds for
believing that a person is operating an armoured
vehicle and, on request of the peace officer, the
person
(a) refuses or is unable to produce a valid
armoured vehicle permit, and
(b) is unable to satisfy the peace officer that the
person is exempt ... from the requirement to
hold an armoured vehicle permit,
the peace officer, without a warrant, may seize
the motor vehicle and take it to a secure place
for the purpose of preserving the motor vehicle
until a search warrant is obtained.
(2) If
(a) a peace officer has reasonable grounds for
believing that a person owns or is operating or
using a vehicle that contains an after-market
compartment, and
(b) on request of the peace officer, the person is
unable to satisfy the peace officer that the person
is exempt under the regulations from the
prohibition in section 7 (1),
the peace officer, without a warrant, may seize
the vehicle and take it to a secure place for the
purpose of preserving the vehicle until a search

On June 3, 2010 this Act received Royal Assent but
is not yet in force.

!"#$!!%&'("$)*+#
LEGALLY SPEAKING:
!"#$%&'()#'%*+,-.'-/+0#)*1)&1
Assaults Against Police

23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&
“Assaults
on peace officers are to be
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$denounced
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being
subjected to abusive behaviour
of the kind exhibited3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'by the [accused].” – Saskatchewan
Court of Appeal Justice Bateman in R. v. McArthur, 2010
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$
SKCA 90 at para. 5, setting aside a one year global custodial sentence and

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##-1
substituting a sentence of 24 months for assaulting police plus six months
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28 )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/
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/$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)*#-1

Volume 10 Issue 4 - July/August 2010

CONSECUTIVE DRIVING
PROHIBITIONS FIT
R. v. Irvine, 2010 ABCA 212
After being charged with driving over
80mg% in June 2006, the accused
was released on bail by a judge. In
March 2008, while still on judicial
interim release, he was involved in a
head on collision, seriously injuring two occupants
in the other car. He refused a blood sample, but his
hospital blood analysis was 193mg%. He was
charged with refusing a breath test and driving over
80mg% from this incident. He subsequently pled
guilty to driving over 80mg% for the 2006 incident,
and refusing a breath test and driving over 80mg%
for the 2008 incident. These incidents were his third
and fourth convictions for similar offences. The
Alberta Provincial Court judge accepted a joint
submission for a six month jail sentence. But he also
imposed two 3-year driving prohibitions for each set
of offences to be served consecutively. The accused
appealed this sentence to the Alberta Court of
Appeal arguing, in part, that the trial judge erred in
imposing consecutive driving prohibitions.

Driving Prohibitions
Section 259 of the Criminal Code provides for
mandatory driving prohibitions for first, second and
subsequent offences:
Mandatory order of prohibition
s.259(1) Criminal Code
When an offender is convicted of an offence committed under
section 253 [impaired/over 80mg%] or 254 [refusal] ... the court
that sentences the offender shall, in addition to any other
punishment that may be imposed for that offence, make an order
prohibiting the offender from operating a motor vehicle on any
street, road, highway or other public place, or from operating a
vessel or an aircraft or railway equipment, as the case may be,
(a) for a first offence, during a period of not more than three
years plus any period to which the offender is sentenced to
imprisonment, and not less than one year;
(b) for a second offence, during a period of not more than
five years plus any period to which the offender is sentenced
to imprisonment, and not less than two years; and
(c) for each subsequent offence, during a period of not
less than three years plus any period to which the
offender is sentenced to imprisonment.

Since these were the accused’s third and fourth
convictions the judge was required to give him a 3year driving prohibition. And the consecutive
sentences were not unfit. “These convictions were
for two separate offences separated by a number of
years,” said the Court. “Indeed, to have directed
concurrent prohibitions would result in the
[accused] having no prohibition for the second
conviction, and would violate the spirit of section
259(1)(c) which requires a three-year prohibition for
each subsequent offence.” The accused’s appeal on
this ground was dismissed.
Complete case available at www.albertacourts.ab.ca

BLOOD DELIVERY VEHICLE MAY
NOW USE HIGH OCCUPANCY
VEHICLE LANES
On June 25, 2010, British Columbia’s Motor Vehicle
Act Regulations, ss.42.01 - 42.03, was amended to
allow blood delivery vehicles the use of high
occupancy lanes. To be eligible, a vehicle must meet
the following definition:
“blood delivery vehicle” means a motor vehicle that
is
(a) owned or operated by or on behalf of the
Canadian Blood Services,
(b) clearly marked as a Canadian Blood Services
vehicle, and
(c) used to transport blood or blood products.

Blood delivery vehicles now enjoy the same
exemptions for using high occupancy lanes as the
following:
• the driver of a marked vehicle responding to a
disabled vehicle or another emergency on the
laned roadway where the high occupancy
vehicle lane is located;
• the driver of an emergency vehicle;
• a peace officer on active duty;
• an operator of a cycle, motor cycle, taxi or
handy dart vehicle.
Cycles, however, do not enjoy the use of high
occupancy lanes on the Trans-Canada Highway.

PAGE 29

Volume 10 Issue 4 - July/August 2010

VEHICLE INSPECTION DOES NOT
RENDER RANDOM SAFETY
RELATED STOP ARBITRARY
R. v. Kenyon, 2010 MBCA 70
The police noticed that a semi-tractor,
without a trailer, bearing out-of
province licence plates was not
displaying an International Fuel Tax
Agreement (IFTA) sticker. The police
pulled the semi over to verify regulatory compliance
but the accused was unable to supply a driver’s
licence or any documentation to confirm his
identity, and was also unable to provide an IFTA
licence even though he said he had paid for it.
Furthermore, his daily log books were incomplete.
The accused was asked to exit the semi so the police
could search inside it to look for documents relating
to the vehicle’s use that would clarify the situation.
The officer had no suspicions of any criminal
activity. But when he opened one of the drawers he
observed used pipes with residue, typically used by
persons to smoke cocaine or methamphetamine.
The officer stopped his search, arrested the accused
for drug possession, read him his rights, and gave the
police caution. The officer went back into the semi
to search incident to the arrest for evidence on the
possession charge. He noticed that the cabin ceiling
had been altered and, based on his past experience,
believed that the ceiling may contain a hidden
compartment. He again left the vehicle, arrested the
accused for trafficking and possession for the
purpose of trafficking, and re-advised him of his
Charter rights and the police caution. The officer reentered the semi to search for evidence on the new
charges. Inside the ceiling, police found 43 bags
containing about 195,000 ecstasy tablets and 40
one-kilogram bricks of cocaine. The accused was
arrested a third time, for possessing ecstasy and
cocaine for the purpose of trafficking. Again, he was
read his Charter rights and given the police caution.
At trial in the Manitoba Court of Queen’s Bench the
trial judge found that the accused’s ss.8 and s. 9
Charter rights were not breached as a result of the
stop and warrantless search of the semi-tractor

cabin. Up until the contaminated drug pipes were
observed, the purpose of the traffic stop and search
of the vehicle was to ensure compliance with
commercial vehicle regulations.
The judge rejected the accused’s argument that the
initial stop of the vehicle was arbitrary because the
police were using it as a pretext to search for drugs:
I am satisfied the initial stopping of the vehicle
was not arbitrary. I accept [the officer’s]evidence
that he decided to stop the vehicle to check for
compliance with IFTA. I also accept his evidence
that he planned to check the driver’s licence, the
vehicle registration, the log books and
supporting documents. Section 76.1 of The
Highway Traffic Act authorizes a peace officer
acting in the course of his duties to stop a
vehicle to make inquiries and request
documentation generally in relation to the
driver’s identity, licence, registration, sobriety,
and mechanical fitness of the vehicle. Random
stops are justified because of the safety aims of
highway traffic legislation, provided the officer is
acting lawfully and within the scope of the
legislation. [para. 20]

What did the officer see?
The officer noticed the rear air dam above the
sleeper berth had been sealed. Based on his
experience, he thought this was consistent
with the existence of a false compartment in
the vehicle. He also noticed the upholstery in
the ceiling did not go under the plastic trim
and appeared to have been folded to hide
something. He pulled down the ceiling
covering and noticed there was a false
compartment. He was able to unscrew some
bolts to gain access to the compartment where
he saw numerous bags of what appeared
to be ecstasy pills and bricks
of cocaine. In all, police
found 40 kilos of cocaine
and 19 bags containing
about 195,000 ecstasy
tablets in the false
compartment.

PAGE 30

Volume 10 Issue 4 - July/August 2010
Nor did the accused’s detention at the scene become
arbitrary after the officer decided to conduct an
inspection of the vehicle:
Commercial trucking is a highly regulated
industry. Commercial carriers are subject to a
plethora of federal and provincial regulations
and obligations, including those relating to fuel
tax payments, the maintenance of log books and
supporting documents. The authority to detain
commercial carriers on a highway arises by
necessary implication from the power to
conduct inspections under the federal
Commercial Vehicle Drivers Hours of Service
Regulations ... and The Highway Traffic Act.
[para. 22]

The accused then appealed to the Manitoba Court of
Appeal arguing the trial judge erred in holding that
his rights under ss.8 and 9 of the Charter were not
breached. Justice Chartier, authoring the unanimous
judgment, however, agreed with the trial judge that
there were no Charter violations when the police
initially stopped and then searched the semi to
ensure compliance with commercial vehicle
legislation:
The law recognizes broad powers for search and
inspection of commercial vehicles when the
purpose is regulatory oversight as opposed to
criminal investigation. As the roadside detention
was authorized by s. 76.1(1) of The Highway
Traffic Act, ... (the HTA), there was no need to
inform the accused of his right to counsel until
his arrest on the drug charges. The warrantless
search of the vehicle for commercial documents
during the inspection was authorized by both
federal (s. 18(2) of the Commercial Vehicle
Drivers Hours of Service Regulations, 1994 ...
and provincial legislation (s. 241.1(4) of the
HTA), and it was carried out in a reasonable
manner. Furthermore, an officer may open
compartments inside a vehicle to look for motor
safety documents required to be produced by
law when a motorist fails to produce same ...
[reference omitted, para. 7)

The judge concluded that the officer’s request for
documents was within the scope of his authority and
the accused’s inability to produce satisfactory
documentation provided reasonable grounds for the
officer to conduct a further inspection to ensure
compliance with the HTA and the regulations.
Further, as soon as the evidence of a criminal
offence was observed, the police had authority to
detain under their power of arrest.
As for the search, the police had authority under s.
241.1(4) of the HTA to conduct the inspection of the
vehicle. All of the required documentation had not
been produced and the documentation that was
produced was incomplete. The officer had
reasonable grounds to suspect the Act and
regulations relating to commercial trucking was not
complied with. Once the drug paraphernalia was
discovered there were reasonable grounds to believe
that an offence of possessing a controlled substance
had been or was being committed. The arrest gave
the police authority to continue the search of the
vehicle as a search incidental to arrest because it
was reasonable to believe that drugs might be found
near where they were used. There was no obligation
to obtain a search warrant once the drug
paraphernalia had been found in the course of the
regulatory inspection. The judge held that the
accused’s rights under s.8 of the Charter were not
infringed. The accused was convicted of possessing
ecstacy and cocaine for the purpose of trafficking.
He was sentenced to 12 years in prison.

And even if there was a Charter breach, the Court of
Appeal would not have excluded the evidence
under s.24(2). The accused had a reduced
expectation of privacy in a commercial motor
vehicle and the relevant factors favoured admission
of the drug evidence. The accused’s appeal was
dismissed.
Complete case available at www.canlii.org

Editor's note: Supplemental trial judge’s reasons
extracted from R. v. Kenyon, 2009 MBQB 259

PAGE 31

Volume 10 Issue 4 - July/August 2010

SENTENCING PROCESS CAN
ADDRESS CHARTER BREACHES
R. v. Nasogaluak, 2010 SCC 6
After receiving a tip about an
intoxicated driver, the police initiated
a high-speed pursuit with the
accused. He attempted to evade the
police cruisers and dangerously
reversed his car toward the officer’s vehicle. The
accused came to an abrupt stop and, with a gun and
flashlight pointed towards him, was ordered out of
the vehicle with his hands up. He didn’t comply and
instead placed his feet back inside the vehicle,
clutching the steering wheel and door frame. An
officer grabbed him and punched him in the head to
prevent him from driving away and striking another
officer standing in front of the vehicle. The accused
let go of the steering wheel and reached out to an
officer, who then struck him in the head with his fist
a second time, pulled him out of the car, and
wrestled him onto the ground. He was punched in
the head a third time and pinned face down on the
pavement, but refused to offer up his hands to be
cuffed. He was then punched twice in the back,
breaking his ribs and puncturing one of his lungs.
No recordings were made of this interaction despite
the presence of video cameras in the cars. He was
transported to the detachment where he provided
two breath samples well over the legal blood
alcohol limit. No record was made of the force used
during the arrest, drawing of a weapon, or of the
accused’s injuries. Although there were no obvious
signs of injury and the accused did not expressly
request medical assistance, he did state twice that he
was hurt and was observed crying and saying: “I
can’t breathe.” No attempts were made to provide
the accused with medical attention. He was released
the following morning and went to hospital where it
was learned that he had broken ribs and a collapsed
lung requiring emergency surgery.
At trial in the Alberta Court of Queen’s Bench the
accused pled guilty to impaired driving under s.
253(a) of the Criminal Code and flight from police
under s.249.1(1). But he requested a stay of
proceedings, submitting that the police breached his
Charter rights because they used excessive force in

arresting him, failed to properly report his injuries,
and failed to obtain medical assistance for him. If a
stay was not granted, the accused wanted a reduced
sentence to remedy the Charter breaches. The trial
judge found violations of the accused’s ss.7 and
11(d) rights. The judge found the first and second
punches were lawful; the first necessary to remove
the accused from the vehicle and prevent him from
driving away or causing harm to the other officer
and the second necessary to subdue him and force
him to the ground when he was non-compliant.
However, in the judge’s view, the third punch to the
head and the two punches to the back were
unwarranted and excessive. As a remedy, the judge
refused to enter a stay, instead reducing the
accused’s sentence. Rather than giving him a typical
sentence of 6 to 18 months incarceration, using s.
24(1) of the Charter he imposed a 12 month
conditional discharge with a one year driving
prohibition.
The Crown’s appeal to the Alberta Court of Appeal
was unsuccessful. A majority of the Court of Appeal
concluded that the trial judge did not make a
palpable and overriding error in holding that the use
of force was excessive in the circumstances, even
though they would not have necessarily made the
same finding. The judge considered relevant factors,
that the events happened quickly, and that the
accused was uncooperative and intoxicated. The
majority would not interfere with the ruling that the
excessive force, failure to report injuries, and failure
to obtain medical care was a s.7 breach. As well, the
Court of Appeal upheld the granting of a sentence
reduction as a Charter remedy under s.24(1) only if
the violation somehow mitigated the seriousness of
the offence or if it imposed additional punishment or
hardship on the accused (as was the case here, since
the accused had suffered broken ribs and a
punctured lung). But the majority found a sentence
falling below a statutorily mandated minimum could
not be ordered. The accused’s conditional discharge
was set aside for the impaired driving offence since
there was a minimum fine of $600 for a first offence.
The evading a police officer offence had no
minimum punishment and the majority did not
interfere with the conditional discharge ordered on
it. Justice Côté, in dissent, agreed that a sentence

PAGE 32

Volume 10 Issue 4 - July/August 2010
[P]olice officers do not have an unlimited power
reduction could be available in some circumstances
to inflict harm on a person in the course of their
to remedy a Charter breach but could not reduce a
duties. While, at times, the
sentence below a statutory
police
may have to resort to
m i n i m u m . H o w e v e r, h e h a d
“[P]olice officers do not
force
in
order to complete an
difficulty accepting that the Charter
arrest or prevent an offender
have
an
unlimited
power
to
breaches were so egregious that they
from escaping police custody,
warranted the remedy of a
inflict harm on a person in
the allowable degree of force to
conditional discharge on the evading
be used remains constrained by
the course of their duties.”
police offence and would have rethe
principles
of
sentenced the accused.
proportionality, necessity and
reasonableness. Courts must guard against the
Both the Crown and the accused appealed to the
illegitimate use of power by the police against
Supreme Court of Canada.
members of our society, given its grave
consequences.

Excessive Force
The unanimous Supreme Court concluded that the
trial judge had made no palpable and overriding
error in his findings that the police had used
excessive force at the time of the accused’s arrest.
Justice Lebel, writing the Court’s opinion, described
the law regarding police use of force as follows:

The legal constraints on a police officer’s use of
force are deeply rooted in our common law
tradition and are enshrined in the Criminal Code
[such as s. 25 of the Code]. ...
Section 25(1) essentially provides that a police
officer is justified in using force to effect a lawful
arrest, provided that he or she acted on
reasonable and probable grounds and used only

R. v. Nasogaluak Argument Grid
Argument

Crown

Defence

Excessive Force

• in concluding there was excessive force the trial
judge failed to assess the degree of force used by
police against the legal standard found in ss.25
and 27 of the Criminal Code and in the relevant
case law.

• the Court of Appeal correctly reviewed and
applied the legal principles on excessive force and
the s.7 Charter breach finding was proper.

Use of sentence
reduction as a Charter
remedy

• a sentence reduction might be appropriate but s.
24(1) of the Charter should not be used to
circumvent the statutory and common law
principles of sentencing;

• a sentence reduction as a s.24(1) Charter remedy
should be available;
• the court’s broad discretion under s.24(1) permits a
sentence reduce a sentence below the statutory
minimum when necessary to provide effective
Charter relief;
• the sentencing principles in the Criminal Code
should not impede an individual exercising a right
to a meaningful Charter remedy;
• a broad interpretation of s.24(1) should be adopted
that would allow for the reduction of sentences
below the regular range of appropriate sentences in
order to remedy a Charter breach.

• reduced sentence must still fall within the range of
appropriate sentences for the offence charged;
• must not shift focus of the sentencing from the
offender’s culpability and gravity of offence to the
conduct of state officials.

Legality & fitness of
sentence

• conditional discharge for impaired driving was
illegal because Criminal Code provides for a
minimum sentence;
• conditional discharge for evading police, although
legal, was inadequate and therefore unfit. The
offence was serious, the accused acted
deliberately, and the public interest required a
period of incarceration.

PAGE 33

• conditional discharge for the offence of impaired
driving should be restored and the Court of Appeal
erred in substituting a $600 fine.

Volume 10 Issue 4 - July/August 2010
as much force as was
and detention engaged s.7. “The
“Police actions should not be
necessary in the
excessive use of force by the police
circumstances. That is not
officers, compounded by the failure
judged against a standard of
the end of the matter.
of those same officers to alert their
perfection. It must be
Section 25(3) also prohibits
superiors to the extent of the injuries
a police officer from using a
remembered that the police
they inflicted on [the accused] and
greater degree of force, i.e.
their
failure to ensure that he
engage in dangerous and
that which is intended or
likely to cause death or demanding work and often have received medical attention, posed a
very real threat to [the accused’s]
g r i e vo u s b o d i l y h a r m ,
security
of the person that was not in
to
react
quickly
to
emergencies.
unless he or she believes
accordance
with any principle of
that it is necessary to
Their actions should be judged
protect him- or herself, or
fundamental justice,” stated the
in light of these exigent
another person under his or
Court.
her protection, from death
circumstances.”
or grievous bodily
harm. The officer’s belief
Sentence Reduction as Charter Remedy
must be objectively reasonable. This means that
the use of force under s. 25(3) is to be judged on
The Supreme Court examined the relationship
a subjective-objective basis. If force of that
between the sentencing provisions of the Criminal
degree is used to prevent a suspect from fleeing
Code and the remedy section of the Charter,
to avoid a lawful arrest, then it is justified under
particularly in the context of responding to excessive
s. 25(4), subject to the limitations described
use of force by police. The Court ruled that in
above and to the requirement that the flight
could not reasonably have been prevented in a
exceptional cases a sentence reduction is available
less violent manner.
as a form of Charter relief under s.24(1). But
Police actions should not be judged against a
standard of perfection. It must be remembered
that the police engage in dangerous and
demanding work and often have to react quickly
to emergencies. Their actions should be judged
in light of these exigent circumstances. ...
[references omitted, paras. 32-35]

Whether or not the trial judge cited the relevant case
law and provisions of the Criminal Code, he adhered
to the correct legal principles in deciding whether
the force was excessive. “Even taking into account
the fact that these events occurred over a very brief
period of time and that the police had to make hasty
decisions to respond to the situation at hand, in my
opinion, the Court of Appeal did not err when it
found that the police had used more force than was
necessary in the circumstances,” said Justice Lebel.
Further, the officers’ conduct amounted to a s.7
Charter violation. Leaving aside the question of
whether police officers may have an affirmative duty
to obtain medical assistance for persons under their
care, the substantial interference with the accused’s
physical and psychological integrity upon his arrest

generally, the consequences of a Charter breach can
be addressed through the sentencing process itself.
Of course, sentencing has a constitutional
dimension; s.12 of the Charter forbids the imposition
of cruel and unusual punishment (ie. a grossly
disproportionate sentence that would outrage
society’s standards of decency). The Criminal Code
sentencing provisions provide judges with a broad
discretion in crafting a sentence tailored to the
nature of the offence and the circumstances of the
offender, subject to case law, the Criminal Code, and
the Charter. Any mitigating or aggravating factors
will then increase or decrease the sentence. Thus,
using their broad discretion under the Criminal
Code, it may be appropriate for a judge to address a
Charter breach when passing sentence without
resorting to s.24(1) of the Charter. “If the facts
alleged to constitute a Charter breach are related to
one or more of the relevant principles of sentencing,
then the sentencing judge can properly take those
facts into account in arriving at a fit sentence,” said
the Court. “It would be absurd to suggest that simply
because some facts also tend to suggest a violation
of the offender’s Charter rights, they could no longer

PAGE 34

Volume 10 Issue 4 - July/August 2010
be considered relevant mitigating
factors in the determination of a fit
sentence.” The Court continued:

“[I]ncidents alleged to
constitute a Charter
violation can be considered
in sentencing, provided
that they bear the
necessary connection to
the sentencing exercise.”

[T]he sentencing regime under
Canadian law must be
implemented within, and not
apart from, the framework of the
Charter. Sentencing decisions are
always subject to constitutional
scrutiny. A sentence cannot be
“fit” if it does not respect the
f u n d a m e n t a l va l u e s e n s h r i n e d i n t h e
Charter. Thus, incidents alleged to constitute a
Charter violation can be considered in
sentencing, provided that they bear the
necessary connection to the sentencing exercise.
As mitigating factors, the circumstances of the
b r e a ch wo u l d h ave t o a l i g n w i t h t h e
circumstances of the offence or the offender, as
required by s. 718.2 of the Code. Naturally, the
more egregious the breach, the more attention
the court will likely pay to it in determining a fit
sentence. [para. 48]

relation to the offence and to the
offender,” said Justice Lebel. “In that
case, the validity of the law would
not be at stake, the sole concern
being the specific conduct of those
state agents.”

Legality & Fitness of Sentence

Although the Alberta Court of
Appeal did not need to rely on s.
24(1) it nonetheless crafted a fit and
appropriate sentence in recognizing the serious acts
of the police officers and addressing the
circumstances of the accused while remaining
within the statutory parameters of the Criminal Code.
All appeals were dismissed.
Complete case available at www.scc-csc.gc.ca
Others intervening in the Nasogaluak appeal:
๏ Director of Public Prosecutions of Canada
๏ Attorney General of Ontario
๏ Attorney General of Manitoba
๏ Canadian Civil Liberties Association

And further:

๏ Criminal Lawyers’ Association (Ontario)
๏ Criminal Trial Lawyers’ Association

Indeed, s. 718 of the Criminal Code describes
the fundamental purpose of sentencing as that of
contributing to “respect for the law and the
maintenance of a just, peaceful and safe
society”. This function must be understood as
providing scope for sentencing judges to
consider not only the actions of the offender, but
also those of state actors. Provided that the
impugned conduct relates to the individual
offender and the circumstances of his or her
offence, the sentencing process includes
consideration of society’s collective interest in
ensuring that law enforcement agents respect the
rule of law and the shared values of our society.
[para. 49]

!"#$!!%&'("$)*+#
LEGALLY SPEAKING:

!"#$%&'()#'%*+,-.'-/+0#)*1)&1
Drugs: Possession v. Production

Even though excessive force by the police can be
remedied through a reduction in sentence by
applying the sentencing provisions of the Criminal
Code, the Supreme Court did not foreclose the use
of the remedial provision of s.24(1) of the Charter in
exceptional cases. “Sentence reduction outside
statutory limits, under s. 24(1) of the Charter, may be
the sole effective remedy for some particularly
egregious form of misconduct by state agents in

23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#
“Possession
is not an included
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of fence in production but
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involvement
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generally
also results in possession.
Possession as defined3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'7
in s. 4(3) of the Criminal Code
requires both knowledge and a measure of control.
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.Production involves some active participation in the
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;
growing of the plants, which includes assisting in
#$)#+
#$-+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8maintaining the environment of the growing plants
%99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$
with intent to help their development.” - British
%9+
#$-+ )"#$%&'('*6+
5"16-+
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Columbia
Court of Appeal
Justice/$-*+
Mackenzie
in R. v. #$-+ &-.
@"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+
Rong, 2010 BCCA 165. at para. 10..

/$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)*
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PAGE
35

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Volume 10 Issue 4 - July/August 2010

VICTIM’S MOTHER NOT A
PERSON IN AUTHORITY:
VOIR DIRE NOT NEEDED
R. v. S.G.T., 2010 SCC 20
The victim, a teenager, reported to
police that the accused, her
stepfather, touched her in a sexually
inappropriate manner. The accused
agreed to be interviewed by the
police and at the end of the interview he wrote an
apology to the victim on the police statement form.
He was charged with sexual assault. Later, but
before trial, the victim’s mother sent a number of
emails to the accused requesting consent for the
victim to leave the country for a visit. In one of the
emails the accused again apologized, writing in part,
“I am so, so sorry if I caused her [the victim]
emotional pain.”

admissibility of the email. In its view, among other
things, the confessions rule, or derived confessions
rule, may have provided a basis for the exclusion of
the email if the mother could be characterized as a
person in authority. If there was a connection
between the inadmissible confession to police and
the email, such that the accused sent the e-mail as a
result of the inducement offered by the police officer
some five weeks earlier, then the email may be
inadmissible as well. Thus a voir dire was required.
The conviction was set aside and a new trial was
ordered. The Crown then appealed to the Supreme
Court of Canada.

Confessions Rule
Justice Charron, authoring the judgment for the five
member majority, examined the common law rules
relating to the admissibility of confessions:

The distinction between an admission and a
confession is apposite here. Under the rules of
evidence, statements made by an accused are
At trial in the Saskatchewan Court of Queen’s Bench
admissions by an opposing party and, as such,
the victim testified. As well, the Crown wanted to
fall into an exception to the hearsay rule. They
enter the accused’s confession to police, including
are admissible for the truth of their contents.
the written apology, and the email he sent to the
When statements are made by an accused to
victim’s mother. On a voir dire, the trial judge found
ordinary persons, such as friends or family
that the police officer had offered an inducement by
members, they are presumptively admissible
implying that the matter was not significant, that it
without the necessity of a voir dire. It is only
was extremely minor, that the accused would not
where the accused makes a statement to a
lose his job, and all that was necessary was an
“person in authority”, that the Crown bears the
apology and that the accused would not be charged
onus of proving the voluntariness of the
statement as a prerequisite to its admission.
if he did so. The statement was ruled involuntary and
This, of course, is the confessions rule.
therefore inadmissible. The email, however, was
... ... ...
admitted without a voir dire and, in the trial judge’s
view, was “a confession of guilt
A person in authority is typically
a n d r e m o r s e .” D e s p i t e t h e
“[T]he derived confessions a person who is “formally
engaged in the arrest, detention,
accused’s denial that he sexually
rule serves to exclude
examination
or prosecution of the
assaulted his stepdaughter, the trial
accused”.
Importantly,
there is no
statements
which,
despite
judge disbelieved him and a
category
of
persons
who are
conviction of sexual assault
not appearing to be
automatically considered persons
followed.
involuntary when considered in authority solely by virtue of
their status. The question as to
The accused challenged his
alone, are sufficiently
who should be considered as a
conviction before the
person in authority is determined
connected to an earlier
Saskatchewan Court of Appeal. The
according to the viewpoint of the
Court of Appeal found the trial involuntary confession as to accused. To be considered a
judge erred in failing to conduct a be rendered involuntary and person in authority, the accused
voir dire to determine the
must believe that the recipient of

hence inadmissible.”
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Volume 10 Issue 4 - July/August 2010
the statement can control or influence the
proceedings against him or her, and that belief
must be reasonable. Because the evidence
necessary to establish whether or not an
individual is a person in authority lies primarily
with the accused, the person in authority
requirement places an evidential burden on the
accused. While the Crown bears the burden of
proving the voluntariness of a confession beyond
a reasonable doubt, the accused must provide
an evidential basis for claiming that the receiver
of a statement is a person in authority.

And further:
[S]tatements made to a person in authority that
are sufficiently connected to a previous
involuntary confession to be deemed also
involuntary. [para. 30]

There is, however, no general rule excluding a
subsequent statement regardless of the degree of
connection to the initial inadmissible statement. In
determining whether a subsequent statement is
sufficiently connected to a prior, inadmissible
confession, a contextual and fact-based approach is
used. This includes looking at a number of factors
such as:

... Thus, where the receiver of the statement is an
obvious state actor, such as a police officer, the
fact that the person’s status was known to the
accused at the time the statement was made will
suffice to meet the evidentiary burden.
Whenever the evidence makes clear that a voir
dire into admissibility is required, the trial judge
must conduct one even if none is requested
unless, of course, the defence waives the
requirement and consents to the statement’s
admission. When the receiver of the statement is
not a typical or obvious person in authority, it
usually falls on the accused, in keeping with the
evidential burden, to raise the issue and request
a voir dire. [references omitted, paras. 20-23]

• the time span between the statements,
• advertence to the previous statement during
questioning;
• the discovery of additional incriminating
evidence subsequent to the first statement;
• the presence of the same police officers at both
interrogations; and
• other similarities between the two
circumstances.

Here, the victim’s mother was not a person in
authority; she was simply an ordinary witness in the
proceedings. The accused did not testify that he
believed the victim’s mother could influence or
control the proceedings nor was there any evidence
that the victim’s mother had any control over the
prosecution or that she was operating on behalf of
the investigating authorities. Since the accused’s
mother was not a person in authority there was no
need to hold a voir dire. The trial judge did not err.

Derived Confessions Rule
The derived confessions rule, which emanates from
the common law confessions rule, was described by
the majority as follows:
In brief, the derived confessions rule serves to
exclude statements which, despite not appearing
to be involuntary when considered alone, are
sufficiently connected to an earlier involuntary
confession as to be rendered involuntary and
hence inadmissible. [para. 28]

But the majority refused to decide whether the
derived confessions rule extended to admissions
made to ordinary persons. In this case, the accused
did not raise the derived confessions rule at trial, nor
bring a Charter application seeking the exclusion of
the e-mail. Instead, his lawyer consented to the
admission of the email. In any event, it was difficult
to find evidence of a connection between the two
statements which would have alerted the need to
conduct a voir dire:
• the time span between the initial apology and
the e-mail was over five weeks;
• the inducement held out by the police was the
suggestion that the accused may not be charged
if he apologized. By the time the e-mail was
sent he had been charged;
• there was no advertence to the previous
inadmissible statement in the e-mail to the
victim’s mother;
• the two statements were made to different
persons in entirely different circumstances. The
first statement was made to a police officer in

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Volume 10 Issue 4 - July/August 2010
the context of a custodial interrogation, while
the second was made to the victim’s mother in
an e-mail relating to permission to allow travel;
• the accused’s later testimony at trial revealed
that the apology in the e-mail concerned a
completely unrelated incident.

In short, derived confessions are inadmissible
not because they are themselves involuntary
statements made or given to a person in
authority, ... but because they are “tainted”, or
contaminated, by another inadmissible
statement. [references omitted, paras. 63-66]

The majority found the Court of Appeal erred in
overturning the conviction. The appeal was allowed,
the order for a new trial set aside, the conviction was
reinstated, and the matter was sent back to the
Saskatchewan Court of Appeal to consider the
accused’s remaining grounds of appeal.

In the minority’s view, the connection between the
two statements was apparent and a voir dire to
determine whether the second statement was
contaminated by the first was required. As for
whether the derived confession need be made to a
person in authority for it to be subject to exclusion, a
matter the majority found unnecessary to answer,
Justice Fish stated:

A View of Two

As a matter of principle and logic, it seems clear
to me that derived confessions need not be
made to a person in authority in order to be
found inadmissible. The purpose of the rule —
to exclude statements with a sufficient
connection to a prior inadmissible statement —
would be frustrated if such a requirement were
strictly enforced. Whether or not the subsequent
statement was made to an authority figure, if it is
prompted by the same police conduct that
resulted in the earlier confession, or if it
discloses the contents of the earlier statement
made to authorities, it is a product of the
inadmissible confession and is itself inadmissible
on that ground alone. Of course, whether the
statement is made to police will be a relevant
factor in determining whether the required
connection between the two statements has
been made out. [para. 85]

Justices Fish and Binnie had a different opinion. In
their view the trial judge was legally bound to
determine the admissibility of the accused’s second
“apology”, as it was clear that it might be a “derived
confession”and inadmissible because of its close
connection to the earlier excluded statement. In
their dissent, they described the derived confessions
rule this way:
The confessions rule serves to exclude
involuntary statements made to persons in
authority. The derived confessions rule is a
corollary of the confessions rule. It excludes
statements that are so closely connected to
inadmissible confessions as to be “tainted” by
association and, for that reason, inadmissible as
well.
The derived confessions rule thus excludes
statements that, while not inadmissible when
considered in isolation, are excluded because of
their temporal or causal connection to another
statement found by the court to be
inadmissible. This occurs whenever “either the
tainting features which disqualified the first
confession continued to be present or ... the fact
that the first statement was made was a
substantial factor contributing to the making of
the second statement”.

The minority would have dismissed the Crown’s
appeal and upheld the order of a new trial.
Complete case available at www.scc-csc.gc.ca

•

The question is a contextual one, aimed at
determining the degree of connection between
the two statements. ...

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Volume 10 Issue 4 - July/August 2010

INTERNET LURING APPLIES
EVEN THOUGH COP
POSED AS CHILD
R. v. Levigne, 2010 SCC 25
The accused, a 46 year old man,
engaged in a series of sexually
explicit Internet chats with an
undercover officer who repeatedly
and clearly represented himself as
“Jessy G”, a 13-year-old student in grade 7.
Throughout the online chat sessions, the accused
reiterated his wish to perform oral sex on “Jessy G”.
After arranging to meet “Jessy G” and attending at a
local restaurant for a sexual encounter, the accused
was arrested and charged with offences under s.
172.1 of the Criminal Code; communicating by
computer with an underage person, or person whom
he believed to be underage, for the purpose of
facilitating the commission of an offence mentioned
in the legislation.
At trial in the Alberta Court of Queen’s Bench the
accused said he took no steps to ascertain the real
age of “Jessy G”. But he testified that he did not
believe “Jessy G” was 13 because his online profile
indicated that he was 18 and that there were
moderators in the public chat rooms who would
remove children (even though his communications
with “Jessy G” occurred in a private chat room).

in the absence of evidence to the contrary, proof that
the accused believed that the person was underage.
Thus, it was presumed the accused believed that he
was communicating with an underage sexual target.
But the trial judge acquitted the accused, finding his
testimony (evidence to the contrary) left a doubt as
to whether the accused actually believed that his
sexual target was underage.
The Crown successfully appealed to the Alberta
Court of Appeal. The Court of Appeal found that the
trial judge had misapprehended the combined effect
of ss.172.1(3) and (4) by failing to apply the
“reasonable steps” requirement found in s.172.1(4).
Instead of ordering a new trial, the accused’s
acquittals were set aside, convictions entered, and
the matter was returned to the trial court for
sentencing.
The accused then appealed to the Supreme Court of
Canada requesting the Court of Appeal decision be
reversed and his acquittals restored, or at least a new
trial ordered. But the Supreme Court refused to do
so.

Internet Luring
Section 172.1 of the Criminal Code creates the
offence of internet luring. Justice Fish, speaking for
all nine judges, described the crime as follows:

The trial judge found that s.172.1(4) had no
application because the accused’s belief was not put
forward as a defence, but instead was an essential
element of the offence. Under s.172.1(3) of the
Criminal Code, where there is evidence that the
person with whom the accused communicated was
represented to the accused as being underage it is,

Section 172.1 prohibits the use of computers to
communicate with an underage person or a
person whom the accused believes to be
underage for the purpose of facilitating the
commission, with respect to that person, of the
specified sexual offences. ... s. 172.1(1) (a) and
s. 172.1(1)(c), ... both consist of three elements:
(1) an intentional communication by computer;
(2) with “a person who is, or who the accused

“[T] the anonymity of an assumed online profile acts as both a shield for the predator
and a sword for the police. As a shield, because it permits predators to mask their true
identities as they pursue their nefarious intentions; as a sword (or, perhaps more
accurately, as a barbed weapon of law enforcement), because it permits investigators,
posing as children, to cast their lines in Internet chat rooms, where lurking predators can
be expected to take the bait.”
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Volume 10 Issue 4 - July/August 2010
believes is” underage; (3) for the specific
purpose of facilitating the commission of an
enumerated secondary offence with respect to
that person.

and even an attempt to commit them. The offender
need not meet or intend to meet the victim with a
view to committing any of the specified secondary
offences.

Section—172.1 was adopted by Parliament to
identify and apprehend predatory adults who,
generally for illicit sexual purposes, troll the
Internet to attract and entice vulnerable children
and adolescents.

Substantive: Section 172.1 makes it an offence to
communicate by computer for a prohibited purpose
with a person who is underage, or who the accused
believes is underage. Were it otherwise, “sting”
operations of the kind that occurred here could not
be mounted.

In structuring the provision as it did, Parliament
recognized that the anonymity of an assumed
online profile acts as both a shield for the
predator and a sword for the police. As a shield,
because it permits predators to mask their true
identities as they pursue their nefarious
intentions; as a sword (or, perhaps more
accurately, as a barbed weapon of law
enforcement), because it permits investigators,
posing as children, to cast their lines in Internet
chat rooms, where lurking predators can be
expected to take the bait... [paras. 23-25]

Procedural: Under s.172.1(3), evidence that the

Thus, an accused can be
convicted under s.172.1 for
failing to take reasonable
steps to determine the real
age of the sexual target even
though the target was in fact
an adult pretending to be a
child, not a child pretending
to be an adult. And the
offence is made out when an accused
communicates for the purpose prohibited by the
section with a person whom the they believe to be
underage. That is the conduct deemed undesirable
and criminalized.
The Supreme Court noted that s.172.1 had four
defining characteristics (two substantive and two
procedural) to enhance its effectiveness:

Substantive: Closing the cyberspace door before
the predator gets in to prey. Section 172.1 creates an
incipient or “inchoate” offence; a preparatory crime
capturing otherwise legal conduct meant to
culminate in the commission of a completed crime.
It criminalizes conduct that precedes the
commission of the sexual offences to which it refers,

target of the communication was represented to the
accused to be under the specified age “is, in the
absence of evidence to the contrary, proof that the
accused believed that the person was under that
age”. This rebuttable presumption facilitates the
prosecution of child luring offences while leaving
intact the burden on the Crown to prove guilt
beyond a reasonable doubt. Put differently, s.
172.1(3) assists the Crown in discharging its
evidential burden on the element of culpable belief,
but preserves for accused persons the benefit of any
reasonable doubt where the record discloses
“evidence to the contrary”.

Procedural: Under s.172.1(4), the accused’s belief
that the person with whom he or she communicated
was not underage will not afford a defence to the
charge “unless the accused took reasonable steps to
ascertain the age of the person”. This provision
forecloses exculpatory claims of ignorance or
mistake that are entirely devoid of an objective
evidentiary basis.
Considering the purpose of s.172.1, Justice Fish
found the combined effect of ss. (3) and (4) should
be understood and applied in the following way:
1. Where it has been
“interlocutor” represented to the someone who takes part in
accused that the
a conversation.
person with whom
they are communicating by computer (the
“interlocutor”) is underage, the accused is
presumed to have believed that the interlocutor
was in fact underage;

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Volume 10 Issue 4 - July/August 2010
2. This presumption is rebuttable. It will be
displaced by evidence to the contrary, which
must include evidence that the accused took
steps to ascertain the real age of the interlocutor.
Objectively considered, the steps taken must be
reasonable in the circumstances.
3. The prosecution will fail where the accused took
reasonable steps to ascertain the age of their
interlocutor and believed that the interlocutor
was not underage. In this regard, the evidential
burden is on the accused but the persuasive
burden is on the Crown.

BY THE BOOK:
s.172.1 Criminal Code: Luring a Child
(1) Every person commits an offence who, by
means of a computer system within the
meaning of subsection 342.1(2),
communicates with
(a) a person who is, or who the accused believes is, under
the age of eighteen years, for the purpose of facilitating

4. Such evidence will at once constitute “evidence
to the contrary” under s. 172.1(3) and satisfy the
“reasonable steps” requirement of s. 172.1(4).
5. Where the evidential burden of the accused has
been discharged, they must be acquitted if the
trier of fact is left with a reasonable doubt
whether the accused in fact believed that their
interlocutor was not underage.
The trial judge had erred in holding that s.172.1(4)
had no application. The “reasonable steps”
requirement imposed foreclosed successful claims of
mistaken belief, absent an objective evidentiary
basis. “Parliament has deliberately proscribed in that
section communications for the prohibited purpose
with a person who is or who the accused believes is
underage and cannot have intended to impose a
‘reasonable step’ requirement on one but not the
other,” said Justice Fish. “In either instance, the
accused’s belief that the person was not underage
will afford a defence — but only if the accused took
reasonable steps to ascertain the age of his or her
interlocutor, as required by s. 172.1(4).”
In this case “Jessy G” was plainly and repeatedly
represented as only 13 and no reasonable steps to
ascertain that he was in fact 18 were taken. His
belief that “Jessy G” was 18 was not reasonable in
the circumstances nor available as a defence
because the steps he took were neither “reasonable”
nor “steps to ascertain the age” of the person with
whom he was communicating by computer for his
sexual gratification. The accused’s appeal was
dismissed.

the commission of an offence under subsection 153(1)
[sexual exploitation], section 155 [incest] or 163.1
[child pornography], subsection 212(1) [procuring] or
(4) [prostitution] or section 271 [sexual assault], 272
[sexual assault with weapon or cause bodily harm] or
273 [aggravated sexual assault] with respect to that
person;
(b) a person who is, or who the accused believes is, under
the age of 16 years, for the purpose of facilitating the
commission of an offence under section 151 [sexual
interference] or 152 [invitation to sexual touching],
subsection 160(3) [bestiality] or 173(2) [exposure] or
section 280 [abduction] with respect to that person; or
(c) a person who is, or who the accused believes is, under
the age of 14 years, for the purpose of facilitating the
commission of an offence under section 281
[abduction] with respect to that person.

s.342.1(2) “computer system” means a device that, or

a group of interconnected or related devices one or more
of which,
(a) contains computer programs or other data, and
(b) pursuant to computer programs,
(i) performs logic and control, and
(ii) may perform any other function.

Complete case available at www.scc-csc.gc.ca

Editor’s Note: At the time of trial, the Internet
luring provision was s.172.1(1)(c). Today, it has since
been renumbered as s.172.1(1)(b). As well, the
threshold age has been raised from 14 years to 16.

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Volume 10 Issue 4 - July/August 2010
Photo: Harry De Jong

Canadian Police
and Peace Officers’
Memorial Service
September 26, 2010
Parliament Hill
Ottawa, Ontario

La Commémoration
des policiers et agents
de la paix canadiens
Le 26 septembre 2010
Colline du Parlement
Ottawa (Ontario)

PAGE 30

Volume 10 Issue 4 - July/August 2010
Executive protection : rising to the challenge.
by Robert L. Oatman.
Alexandria, Va. : ASIS International, c2009.
HV 8290 O284 2009

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

50 one-minute tips for better communications:
speak, write and present more effectively.
Phillip E. Bozek.
[Rochester, NY] : Axzo Press, 2009
HF 5718 B69 2009
The art and science of security risk assessment.
Ira S. Somerson.
[Alexandria, Va.] : ASIS International, c2009.
HV 8290 S663 2009
The business of listening: become a more
effective listener.
Diana Bonet Romero.
[Rochester, NY] : Axzo Press, 2009.
HD 30.3 B654 2009
Communication in crisis and hostage
negotiations : practical communication
techniques, stratagems, and strategies for law
enforcement, corrections and emergency service
personnel in managing critical incidents.
by Arthur A. Slatkin.
Springfield, Ill. : Charles C. Thomas, Publisher,
c2010.
HV 6595 S53 2010
Data mining for intelligence, fraud, & criminal
detection : advanced analytics & information
sharing technologies.
Christopher Westphal.
Boca Raton : CRC Press, c2009.
HV 8079 C65 W47 2009

The explanation of crime : context, mechanisms
and development.
edited by Per-Olof H. Wikstrom, Robert J. Sampson.
Cambridge : Cambridge University Press, 2009.
HV 6080 E975 2009
Forensic factor. Sniper [videorecording].
[Scarborough, Ont.] : Distribution Access
[distributor], 2007.
1 videodisc (DVD) (60 min.) : sd., col. ; 4 3/4 in.
For 23 days in October, 2002, a sniper terrorizes the
Washington DC area, shooting thirteen people and
killing ten. The victims are ordinary people doing
routine activities. Nothing links them; they are
chosen at random. Police mount one of the largest
investigations in American history to catch a ruthless
and elusive killer. In the end, their most productive
clue comes from the sniper himself, who calls a
police tip line and brags about a previous shooting
in Alabama. Authorities are able to recover a single
fingerprint from that crime, which eventually leads
them to not one, but two killers, including a
seventeen-year-old boy.
HV 8079 H6 F674 2007 D939
Gangs in Canada.
Jeff Pearce.
[Edmonton] : Quagmire Press, c2009.
HV 6439 C3 P42 2010
Generation blend: managing across the
technology age gap.
Rob Salkowitz.
Hoboken, N.J. : John Wiley & Sons, c2008.
HD 6279 S25 2008
Managing high-risk sex offenders in the
community : risk management, treatment and
social responsibility.
edited by Karen Harrison.
Cullompton, UK ; Portland, Or. : Willan, 2010.
HV 6556 M36 2010

PAGE 43

Volume 10 Issue 4 - July/August 2010
Managing personal change : stay positive and stay in
control.

Cynthia D. Scott, Dennis T. Jaffe.
[Rochester, NY] : Axzo Press, 2009.
BF 471 S267 2009

Mentoring: make it a mutually rewarding
experience.
Gordon F. Shea,Stephen C. Gianotti.
[Rochester, NY] : Axzo Press, c2009.
HF 5385 S54 2009
New directions in surveillance and privacy.
edited by Benjamin J. Goold and Daniel Neyland.
Cullompton, Devon, U.K.; Portland, Or.: Willan
Pub., 2009.
K 3263 N49 2009
The power of appreciative inquiry : a practical
guide to positive change.
Diana Whitney & Amanda Trosten-Bloom ; foreword
by David Cooperrider.
San Francisco : Berrett-Koehler Publishers, c2010.
HD 30.3 W52 2010
Presentation skills : captivate and educate your
audience.
Steve Mandel.
[Rochester, NY] : Axzo Press, 2009.
PN 4121 M319 2009

Standing in the fire : leading high-heat meetings
with calm, clarity, and courage.
Larry Dressler.
San Francisco : Berrett-Koehler Publishers:
[Distributed by] Ingram Publisher Services, c2010.
HF 5734.5 D74 2010
Supervising police personnel : the fifteen
responsibilities.
Paul M. Whisenand.
Upper Saddle River, N.J. : Pearson Prentice Hall,
[2010], c2011.
HV 7936 S8 W48 2010
Use of force report writing: part 1: legal
considerations. [videorecording]
Burlington, NC : ALERT Publishing Inc., c2001.
1 videodisc (DVD) (14 min.) : sd., col. ; 4 3/4 in.
This program presents experts who offer their tips on
proper writing skills, with a particular emphasis on
report writing for use-of-force incidents. It stresses
the most common mistakes made in incident report
writing.
HV 7936 R53 R468 2001 D1009

www.10-8.ca

British Columbia
Police and Peace Officers
Memorial Service
Sunday
September 26, 2010

Ceremony 1:00 pm,
the Bastion
on the grounds of the
Parliament Buildings
Victoria,
British Columbia

PAGE 44

Volume 10 Issue 4 - July/August 2010

s.24(1) REMEDY CAN INCLUDE
DAMAGE$ FOR CHARTER
BREACHES
Vancouver (City) v. Ward, 2010 SCC 27
Police received information that an
unknown individual (described as a
white male, 30 to 35 years, 5' 9", with
dark short hair, wearing a white golf
shirt or T‑shirt with some red on it)
intended to throw a pie at Prime Minister Chrétien
while participating in a ceremony in Vancouver’s
Chinatown. The plaintiff, a Vancouver lawyer, was
mistakenly identified as the would be pie-thrower.
He was a white male, had grey, collar‑length hair,
was in his mid‑40s, was wearing a grey T‑shirt with
some red on it, and was running, appearing to be
avoiding interception. The officers chased him down
and handcuffed him. The plaintiff loudly protested
his detention, created a disturbance, and was
arrested for breach of the peace. He was taken to the
police lockup and effectively strip searched. His car
was impounded for the purpose of searching it once
a search warrant had been obtained. But detectives
subsequently determined that they did not have
grounds to obtain a search warrant nor evidence to
charge the plaintiff with attempted assault. After
being held for about four and a half hours he was
released, several hours after the ceremony and the
Prime Minister had left Chinatown.
The plaintiff brought an action in tort and for breach
of his Charter rights arising from his arrest,
detention, strip search, and car seizure. The trial
judge found the plaintiff’s arrest for breach of the
peace was lawful, but held the strip search
undertaken by the province’s correctional officers as
well as the vehicle seizure by the police violated his
right to be free from unreasonable search and
seizure under s. 8 of the Charter. Plus, the plaintiff’s
rights under s.9 were breached when he was held in
the police lockup longer than necessary. The judge
assessed damages under s.24(1) of the Charter at
$100 for the seizure of the car, $5,000 for the strip
search, and $5,000 for wrongful imprisonment. He
rejected the governments’ argument that damages
were an inappropriate remedy for Charter breaches

absent bad faith, abuse of power, or tortious
conduct.
The province and the city unsuccessfully appealed
to the British Columbia Court of Appeal. The
majority agreed that bad faith, abuse of power, or
tortious conduct were not necessary requirements
for the awarding of Charter damages. A dissenting
justice, would have allowed the defendants’ appeals,
finding that damages could not be awarded where
the police did not act in bad faith and simply made
a mistake as to the proper course of action.
The defendants then appealed to the Supreme Court
of Canada.

Damages Under s.24(1) Charter
Section 24(1) of the Charter allows courts to grant
“appropriate and just” remedies for Charter
breaches. This can include damages for breaching a
claimant’s Charter rights ruled the Supreme Court of
Canada. But Charter damages are not private law
d a m a g e s ; t h e y a r e a d i s t i n c t r e m edy fo r
constitutional damages. “The nature of the remedy is
to require the state (or society writ large) to
compensate an individual for breaches of the
individual’s constitutional rights,” said Chief Justice
MacLachlin, speaking for the unanimous Supreme
Court. “An action for public law damages —
including constitutional damages — lies against the
state and not against individual actors. Actions
against individual actors should be pursued in
accordance with existing causes of action.” She then
went on to outline a four step process in assessing
when damages under s.24(1) are available:

Step One: Proof of a Charter Breach - the first step
is to establish a Charter breach on which the claim
for damages is based.
Step Two: Functional Justification of Damages the claimant must demonstrate that damages are
appropriate and just to the extent that they serve a
useful function or purpose. Damages must further
the general objects of the Charter:
• the function of compensation - compensating
the claimant for loss and suffering caused by the

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Volume 10 Issue 4 - July/August 2010
breach. A breach of an individual’s Charter
rights may cause personal loss which should be
remedied and compensated. Personal loss
includes physical, psychological, pecuniary, or
harm to intangible interests
such as distress, humiliation, “pecuniary” of or relating
embarrassment, or anxiety
to money.
caused by the Charter breach;

concurrently with and does not replace other
areas of law, would serve no function and
would not be “appropriate and just”.
Alternative remedies include private law
remedies for personal injury actions, other
Charter remedies like declarations under s.
24(1), and remedies under legislation permitting
proceedings against the Crown. Once the
claimant establishes basic functionality the
evidentiary burden then shifts to the state to
show that the functions engaged can be fulfilled
through other remedies. The claimant need not
show that she has exhausted all other
recourses. Rather, it is for the state to show that
other remedies are available in the particular
case that will sufficiently address the breach.
But the existence of a potential claim in tort
does not bar a claimant from obtaining damages
under the Charter. Tort law and the Charter are
distinct legal avenues. However, a concurrent
action in tort, or other private law claim, bars s.
24(1) damages if the result would be double
compensation. As well, declarations of a Charter
breach may provide an adequate remedy,
particularly where the claimant has suffered no
personal damage.

• the function of vindication - vindicating the
right by emphasizing its importance and the
gravity of the breach. Charter rights must be
maintained and cannot be allowed to be
whittled away by attrition. Vindication focuses
on the harm the infringement causes the state
and society as a whole, such as impairing public
confidence or diminishing public faith in
constitutional protections;
• the function of deterrence - deterring state
actors from committing future breaches.
Deterrence has a societal purpose and seeks to
regulate government behaviour, generally, in
order to achieve compliance with the
Constitution. Like “general deterrence” in
criminal sentencing, which sends a message to
others who may be inclined to engage in similar
criminal activity, deterrence as an object of
Charter damages is not aimed at deterring the
specific wrongdoer, but rather at influencing
government behaviour in order to secure state
compliance with the Charter in the future.

Step Three: Countervailing Factors - even if the
claimant establishes that damages are functionally
justified, the state has the opportunity to
demonstrate, if it can, that countervailing factors
defeat the functional considerations supporting a
damage award and render damages inappropriate or
unjust. Although a complete catalogue of
countervailing considerations will develop in the
jurisprudence, two considerations include the
existence of alternative remedies and concerns for
good governance.
• Alternative Remedies: If other remedies
adequately meet the need for compensation,
vindication and/or deterrence, a further award
of damages under s.24(1), which operates

• Good Governance: The concern for effective
governance may negate the appropriateness of
s.24(1) damages. Good governance concerns
may take different forms. At one extreme, it
may be argued that any award of s.24(1)
damages will always have a chilling effect on
government conduct, and hence will impact
negatively on good governance. On the other
hand, the state may establish that an award of
Charter damages would interfere with good
governance such that damages should not be
awarded unless the state conduct meets a
minimum threshold of gravity. For example,
state action taken under a statute which is
subsequently declared invalid will not give rise
to public law damages because good
governance requires that public officials carry
out their duties under valid statutes without fear
of liability in the event that the statute is later
struck down. Duly enacted laws should be
enforced until declared invalid, unless the state

PAGE 46

Volume 10 Issue 4 - July/August 2010
conduct is clearly wrong, in bad faith, or an
abuse of power.

Step Four: Quantum of s.24(1) Damages - the
amount, or quantum, of damages must be
“appropriate and just”. The objects of compensation,
vindication, and deterrence will determine the
amount of damages awarded. Where the objective of
compensation is engaged, the concern is to restore
the claimant to the position they would have been in
had the breach not been committed. Any claim for
compensatory damages must be supported by
evidence of the loss suffered. This may include
pecuniary loss - injuries (physical and psychological)
may require medical treatment, with attendant costs
while prolonged detention may result in loss of
earnings.
Non-pecuniary damages, such as pain and suffering,
are harder to measure but tort law can provide
assistance. Where the objectives of vindication and
deterrence are engaged, the seriousness of the
breach must be evaluated with regard to the impact
of the breach on the claimant and the seriousness of
the state misconduct. The more egregious the
conduct and the more serious the repercussions on
the claimant, the higher the award for vindication or
deterrence will be. But the damages must not only
be appropriate and just to the
claimant, they must also be
appropriate and just to the
state. Large awards and the
consequent diversion of
public funds may serve little
functional purpose in terms
of the claimant’s needs and
may be inappropriate or
unjust
from the public perspective. In
considering what is fair to the claimant and the state,
the court may take into account the public interest in
good governance, the danger of deterring
governments from undertaking beneficial new
policies and programs, and the need to avoid
diverting large sums of funds from public programs
to private interests. To be “appropriate and just”, an
award of damages must represent a meaningful
response to the seriousness of the breach and the
objectives of compensation, upholding Charter

values, and deterring future breaches. In assessing s.
24(1) damages, the court must focus on the breach
of Charter rights as an independent wrong, worthy of
compensation in its own right. At the same time,
damages under s.24(1) should not duplicate
damages awarded under private law causes of
action, such as tort, where compensation of personal
loss is at issue.

Strip Search Damages
In this case the trial judge found that the strip search
violated the plaintiff’s personal rights under s.8 of the
Charter (step 1). And his injury was serious (step 2).
“He had a constitutional right to be free from
unreasonable search and seizure, which was
violated in an egregious fashion,” said the Supreme
Court. “Strip searches are inherently humiliating and
degrading regardless of the manner in which they
are carried out and thus constitute significant injury
to an individual’s intangible interests.” The plaintiff
did not commit a serious offence, he was not
charged with an offence associated with evidence
being hidden on the body, no weapons were
involved and he was not known to be violent or to
carry weapons. Nor did he pose a risk of harm to
himself or others. Plus the officers should have been
familiar with settled law regarding routine strip
searches and their inappropriateness. The Charter
breach significantly impacted the plaintiff’s person
and rights, and the police conduct was serious. The
objects of compensation, vindication, and
deterrence of future breaches were all engaged. The
state, however, did not establish any countervailing
factors (step 3). Alternative remedies were not
available to achieve the objects of compensation,
vindication, or deterrence with respect to the strip
search. The plaintiff’s claims for assault and
negligence had been dismissed and no tort action
was available for a breach of his s.8 right. And a
declaration under s.24(1) would not satisfy the need
for compensation. Furthermore, the state did not
establish that an award under s.24(1) for damages
was negated by good governance considerations. As
for quantum of damages (step 4), although strip
searches are inherently humiliating and a significant
injury to an individual’s intangible interests
regardless of the manner in which they are carried

PAGE 47

ALS Society of BC
United Way

!"#$%&'(()*+)$'*,$-#$./*$0/*$
Volume 10 Issue 4 - July/August 2010

$

Special Olympics:
out, the strip www.bcso.bc.ca
search in this case was relatively brief
not extremely disrespectful. It did not involve
S Society:andwww.alsbc.ca
the removal of the plaintiff’s underwear nor the
United Way:
www.uwfv.bc.ca
exposure of his genitals. He was never touched
during the search and there was no indication that
he suffered any resulting physical or psychological
injury. A moderate damages award was proper. The
trial judge’s award of $5,000 was appropriate.

e Police Challenge started back
1990 as Car
a fundraising
Seizure Damagesevent for
Law Enforcement
Torch Run
The trial judge ruled the vehicle seizure breached s.
Special8 Olympics.
(step 1). However, the object of compensation

(step 2) was not engaged by the seizure of the car
because the plaintiff did not suffer any injury as a
result of it. His car was never searched and he was
subsequently driven to the police compound to pick
it up. Nor were the objects of vindication and
deterrence compelling. While the vehicle seizure
was wrong, it was not of a serious nature. The police
officers did not illegally search the car, but arranged
for its towing under the impression that it would be
searched once a warrant had been obtained. When
the officers determined that they did not have
grounds to obtain the required warrant, the vehicle
was made available for release. Thus, the Supreme
Court concluded damages for the vehicle seizure
were not justified and a declaration under s.24(1)
that the vehicle seizure violated s.8 adequately
served the need for vindication and deterrence of
future improper car seizures. The award of $100 was
set aside, and a declaration under s.24(1) that the
seizure of the vehicle violated s.8 was substituted.

er the years the run has
panded from a local fundraising
ent for the former Matsqui
lice to incorporate other
arities that the Police
partment has supported.

e run is now one of the leading
mmunity fundraisers for the BC
ecial Olympics, ALS Society and
e United Way

2010 Abbotsford Police Challenge Run
Saturday September 18, 2010
The Abbotsford Police Challenge Run started in
1990 to raise funds for BC Special Olympics.
Since its inception, the number of participants and
sponsors has increased to the point where the
Abbotsford Police Challenge has become a
premier event of its kind in the Fraser Valley. The
Abbotsford Police Challenge is committed to
being a family oriented event and for those who
don’t run there is a 5 kilometer fun run/walk route
so no one is excluded from participating. It is now
one of the leading community fundraisers for the
BC Special Olympics, ALS Society, and the United
Way.

September 18, 2010
0)+123)4$5'4(6$'*,$7'8)9$

EVENTS
10K Challenge and 5K Fun Run
Walkers, runners, wheelchairs and strollers
welcome!

LOCATION

1;%<=>*1?=0@=A

!"#$!!%&'("$)*+#,

Complete case available at www.scc-csc.gc.ca

LEGALLY SPEAKING:

!"#$%&'()#'%*+,-.'-/+0#)*1)&1
Alcohol: Odour v. Amount

$

Civic Plaza, next to the Abbotsford Police
Department 2838 Justice Way, Abbotsford, BC

RACE TIME

Both events start at 9:00 am
Warm-up led by Apollo Athletic Club at 8:30am

“The23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+
odour of alcohol on one’s INFORMATION
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+
breath is some indication of the Abbotsford Police Department
%9+ /$'8$+of#$-+
)"#$%&'('*6+
$).-+ or 1-800-898-6111; ask for
consumption
alcohol,
but no 5"16-+
Phone:8%"41+
604-859-5225
the website at:
6&)*#-1+#$-+)"#$%&'()#'%*<+
indication
of the amount the Challenge Run or visit@0,"$:9#56+3'$+5$A05#4$3'$0
(##$80/#$BB$=3)$6"#$0'5>#)
consumed.” - Ontario3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+
Court of Appeal Justice Doherty
in R. v. Ramage, 2010 ONCA 488 at para. 16.

www.abbypd.ca
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PAGE 48
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