POLICE ACADEMY
715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A PEER READ PUBLICATION

IN MEMORIAL
On August 2, 2007 43-year-old
Constable Robert Plunkett of the
York Regional Police Service was
injured when he was run down by a
vehicle during an airbag theft
investigation in Markham, Ontario.
Constable Plunkett was struck by a
car and dragged while performing
undercover surveillance during an
investigation near the Pacific Mall
in the Steeles Avenue and Kennedy
Road area. He was taken to
hospital, where he died from his
injuries.

OFFICERS PAY TRIBUTE TO
FALLEN
On Sunday September 30, 2007 hundreds
of law enforcement officers from Canada
and the United States attended a memorial
service at the British Columbia Law
Enforcement Memorial located on the
grounds of the Legislature in Victoria, B.C.

Constable Plunkett was a 22 year
veteran of the York Regional Police
Service. He is survived by his wife and
three children.
On October 6, 2007 30-year old
Royal Canadian Mounted Police
Constable Christopher Worden was
shot and killed while responding to
a complaint at a home in Hay River,
in the Northwest Territories, at
approximately 5:00 am. Dispatchers
lost radio contact with him after he
arrived at the scene, and then sent additional units to
check on him. The responding constables found
Constable Worden suffering from gunshot wounds.
The suspect was later apprehended.
Constable Worden had served with the
RCMP for 5 years. He is survived by his
wife and eight-month-old child.
Source: Officer Down
www.odmp.org/canada.

Memorial

Volume 7 Issue 5
September/October 2007

Page,

available

at

Be Smart and Stay Safe

They are our heroes. We shall not forget them.

A newsletter devoted to operational police officers across British Columbia.

HIGHLIGHTS IN THIS ISSUE
Pg

Not Every Inducement Will Render
Statement Involuntary

4

No-Knock Decision Based On Info Known
To Police Prior To Forcing Entry

5

Arrestee Must be Diligent In Accessing
Counsel

9

Intermediary Guilty of Trafficking If
Commits Specific Acts

12

Detention Does Not Always Begin At
Moment Officer Decides to Arrest

13

Stopping Behind Parked Vehicle Not A
Detention

15

Police Policy Does Not Have Force Of
Law

18

Across The Nation

22

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Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). 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 are not necessarily the
opinions of the Justice Institute of British Columbia. “In
Service: 10-8” welcomes your comments on or
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National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police
officers across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
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Cases – Periodicals. I. Justice Institute of British
Columbia. Police Academy. II. Title: In service,
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2

www.10-8.ca

Volume 7 Issue 5
September/October 2007

IN-SERVICE LEGAL ROAD TEST

BC’s 25 Top Stolen Vehicles (2006)

The “In Service” Legal
Road Test is a simple
multiple
choice
quiz
designed to challenge your
understanding of the law.
Each question is based on a case featured in this issue.
See page 21 for the answers.

Rank

Make

Model

1

Chrysler (Dodge/Plymouth)

Caravan/Voyager

2

Honda

Civic

3

Ford

F-Series (F150,F250,F350)

4

Honda

Accord

1. Every inducement to an arrestee held out by a person
in authority, no matter how strong, will render a
statement involuntary under the confessions rule.
(a) True
(b) False

5

Chrysler (Dodge/Plymouth)

Neon

6

Dodge

Ram

7

Jeep

Cherokee

8

Toyota

Camry

9

Nissan

Pathfinder

10

Acura

Integra

11

Mazda

B2200/B2600 Pick-up

12

Nissan

240

13

Toyota

4 Runner

14

Dodge

Dakota

3. If counsel of choice is not available within a
reasonable amount of time, an arrestee will be
expected to exercise their right to counsel under
s.10(b) of the Charter by calling a different lawyer.
(a) True
(b) False

15

Dodge

Durango

16

GMC

Sierra

17

Chrysler

Intrepid

18

Dodge

Spirit

19

Plymouth

Acclaim

4. Once an officer decides to arrest a person if they
were to flee, that person is always “detained” for the
purposes of s.9 of the Charter.
(a) True
(b) False

20

Ford

Taurus

21

Ford

Explorer

22

Ford

Mustang

23

VW

Passat

24

GMC

G3500

25

Chevrolet

Cavalier

2. No-knock forced entries pursuant to a general police
practice, without any consideration to exigencies
such as evidence destruction or safety concerns, will
nonetheless always be reasonable under s.8 of the
Charter.
(a) True
(b) False

5. The circumstances of an accident can be taken into
account when an officer is forming their reasonable
grounds to arrest a person for impaired driving.
(a) True
(b) False
6. Strict pre-trial house arrest can form part of a
minimum mandatory sentence once the accused is
convicted.
(a) True
(b) False

www.10-8.ca
Volume 7 Issue 5
September/October 2007

Source: www.icbc.com

DID YOU KNOW...that Canada’s motor vehicle
theft rate was 487 per 100,000 population in 2006, down
2% from 2005. BC’s rate was 682 while the Abbotsford
Census Metropolitan Area (CMA) was 1,155, the
Vancouver CMA 745, and the Victoria CMA 380.
Manitoba had the highest motor vehicle theft rate at
1,376 with Winnipeg topping out the CMA rates at 1,932
stolen vehicles per 100,000. Source: Statistics Canada, 2007, Crime
Statistics in Canada, 2006, Catalogue No:85-002-XIE

www.10-8.ca

3

NOT EVERY INDUCEMENT WILL
RENDER STATEMENT
INVOLUNTARY
R. v. Spencer, 2007 SCC 11
The accused was arrested while driving
a vehicle associated to three robberies.
The vehicle was registered to his
girlfriend, later arrested for one of the
robberies. A handgun and property (watches and
jewellery) from a robbery was found after police
executed a search warrant at their shared
residence. The accused asked a police officer what
was going to happen to his girlfriend and was told
they would both be charged with possession of the
handgun and the jewellery. The accused offered to
confess if the police went easy on his girlfriend. The
interrogating officer said he could not make such a
deal but could hear his story and make
recommendations. The accused also asked to see his
girlfriend. After the accused confessed to some of
the robberies, he was allowed to visit his girlfriend.
He then confessed to more robberies and was
subsequently charged with 18 counts of robbery.
During a voir dire in British Columbia Supreme Court
the trial judge ruled the statements were voluntary
and therefore admissible. He found there were no
threats or quid pro quo offers made in response to
the accused’s repeated requests for his girlfriend’s
leniency. Nor was he promised that she would not be
charged. He merely appealed to the accused’s
common sense and knowledge of the criminal justice
system. Allowing the visit with his girlfriend was a
small inducement, but not strong enough to raise a
reasonable doubt about whether the accused’s free
will was overborne. The accused was convicted.
The accused appealed
to the British Columbia
Court of Appeal arguing
his statements were
inadmissible
because
they were not made
voluntarily;
he
was
induced to confess by
hope of leniency for his
girlfriend and promised
a visit with her. In a 2:1
judgment, the appeal
was
allowed,
the

4

statements ruled inadmissible, and the convictions
were overturned. The majority found the trial judge
applied the wrong test and considered irrelevant
factors, such as who proposed the deal, the
accused’s attitude and demeanour, and whether the
police and the accused were on a the level playing
field. The lone dissent found the trial judge did the
correct analysis, both legally and factually.
The Crown then appealed to the Supreme Court of
Canada. In a 6:2 judgment, the Supreme Court
reversed the Court of Appeal’s decision. Justice
Deschamps, writing the Court’s majority opinion,
concluded the trial judge correctly applied the law
and his finding that the confession was voluntary was
entitled to deference.

Statement Voluntariness
Under the common law statements made by an
accused to a person in authority are inadmissible as
evidence unless the Crown proves beyond a
reasonable doubt that they were voluntary. In
deciding whether a statement is voluntary a court
must consider several factors including:

A distinct enquiry
To be considered together

LATIN LEGAL LINGO:
“quid pro quo”- something for something; what
for what; a mutual consideration; that which a party
receives or is promised in return for something
promised, given, or done; getting something of
value in return for giving something of value;
securing an advantage or receiving a concession in
return for a similar favour; for example, an express
or implied promise that, in return for a suspect’s
confession, the officer would do something such as
reduce charges or suggest a lighter sentence.

www.10-8.ca

Promises
Promises considered in the
voluntariness analysis need not
be directed at the accused to
have a coercive effect, as was
the allegation in this case. A
quid pro quo offer is the most
important consideration when
an inducement is alleged,
however, it does not occupy
“centre stage” — voluntariness
does. Although important, quid

Volume 7 Issue 5
September/October 2007

pro quo is neither an exclusive factor in assessing
nor one determinative of voluntariness. Rather, the
determination will be contextual and the court must
be sensitive to the particularities of the individual.
Thus, not every quid pro quo held out will necessarily
render a statement involuntary. The quid pro quo
must be strong enough to raise a reasonable doubt
about whether the will of the individual has been
overborne.
“While a quid pro quo is an important factor in
establishing the existence of a threat or promise, it
is the strength of the inducement, having regard to
that particular individual and his or her
circumstances, that is to be considered in the overall
contextual analysis into the voluntariness of the
accused’s statement,” said Justice Deschamps.
In this case, the trial judge considered all of the
relevant circumstances and properly applied the law.
Justice Charron stated:
In my view, the trial judge made no error of law in
concluding that no offer of leniency was made in
respect of [the accused’s girlfriend] and that the
withholding of a visit to her until at least a partial
confession was made was an inducement that was
not strong enough to render the accused’s
statements inadmissible. It was a relevant factor
that the accused had not “lost control of the
interview to the point where he and [the officer
were] no longer playing on a level field”.... In
Oickle, [Justice Iacobucci] explicitly recognized
that “[t]he absence of oppression is important not
only in its own right, but also because it affects
the overall voluntariness analysis”.
It was also relevant to the particularities of the
[accused] that, according to the trial judge, he
was aggressive and a “mature and savvy
participant”, and that he unsuccessfully
attempted many times to secure “deals” with the
police.
While none of these factors are
determinative, it was not an error for the trial
judge to consider them in his contextual analysis.
[paras. 20-21]

Another View
The minority took a different position. In their view,
the will of the individual need only be overborne in
the sense that they would not otherwise have given
a statement except to avoid pain or achieve promise
gained. There is no need that they lost any
meaningful independent ability to choose to remain
silent. The minority agreed that threats or promises

Volume 7 Issue 5
September/October 2007

(explicit or implicit) need not be aimed at the
accused, but could be directed to someone closely
related to them such as telling a mother her
daughter would not be charged with shoplifting if
the mother confessed to a similar offence.
Justice Fish, writing the minority’s judgment,
concluded the police made a “compound quid pro
quo—an implicit but unmistakable threat [to bring
criminal charges against his girlfriend unless he
confessed] accompanied by an implicit but
unmistakable promise [recommend no charges
against his girlfriend if he confessed].” He then
immediately admitted to the robberies. The minority
would have affirmed the Court of Appeal’s ruling
overturning the accused’s conviction.
The Crown’s appeal was allowed and the accused’s
conviction restored.
Complete case available at www.scc-csc.gc.ca

NO-KNOCK DECISION BASED ON
INFO KNOWN TO POLICE PRIOR
TO FORCING ENTRY
R. v. DeWolfe, 2007 NSCA 79
As a result of receiving information
from three separate sources, police
obtained a warrant to search the
accused’s residence, believed to be a
crack shop. They were also told he kept a young
pitbull at the residence to act as a deterrent for
police and rival drug dealers. The warrant was
executed shortly after 2:00 am by hard entry. Police
used a battering ram to break down the door while
contemporaneously yelling “police—search warrant.”
The accused’s wife was found in bed without her
clothes on. The police seized 0.2 grams of cocaine
wrapped in tinfoil in the accused’s pants pocket, 26
grams found above a dryer vent, digital scales, and
$680 in cash. He was charged with possessing
cocaine for the purpose of trafficking
At trial in Nova Scotia Provincial Court the accused
argued, in part, that the method of police entry —
making a hard entry into the premises — was
unreasonable and violated his s.8 Charter rights. In
the judge’s view, the police made a hard entry
because that was their policy and practice for drug
searches in the area. “As a result of this practice,
the police … neglected to exercise their discretion

www.10-8.ca

5

as the events of the early
morning hours unfolded,”
said the trial judge.

“At common law, in the ordinary case, before
forcing entry into a private dwelling, police
officers, should give: (1) notice of presence by
knocking or ringing a doorbell; (2) notice of
authority by identifying themselves as law
enforcement officers; and (3) notice of purpose
by stating a lawful reason for entry. This rule is
subject to an exception for ‘exigent
circumstances’”.

She ruled the police should
have re-evaluated their noknock decision when they
found the residence in
darkness and tried the
door to see if it was
unlocked. “An ‘unannounced’
entry into a family home by
seven officers in the middle of the night would have
been a sufficient and significant intrusion … and
would have served to provide the required shock
value being sought.” As well, the trial judge noted, no
dog was found at the residence and police should
have had a female officer present, expecting to find
the accused’s wife naked in bed. The evidence was
excluded under s.24(2) and the accused was
acquitted.
On appeal by Crown to the Nova Scotia Court of
Appeal, the Court first examined the “knock and
notice” rule:
At common law, in the ordinary case, before
forcing entry into a private dwelling, police
officers, should give: (1) notice of presence by
knocking or ringing a doorbell; (2) notice of
authority by identifying themselves as law
enforcement officers; and (3) notice of purpose
by stating a lawful reason for entry. This rule is
subject
to
an
exception
for
“exigent
circumstances”. [para. 16]

As for whether the
police in this case had
the necessary exigent
circumstances justifying
a hard entry under the
common law rule, the
Court found the trial
judge erred. The police
testified about what
they
considered
in
deciding
whether
to
effect a hard entry. These considerations were
informed by source information and surveillance,
such as:
•
•
•
•

•

•

As well, the general knowledge of the type of drug
investigation is relevant to the assessment of the
danger involved, for which the police laid a proper
evidentiary foundation. They testified, in their
experience, that crack shops involved the following:
•

And further:
There is no express reference in the CDSA to
"exigent circumstances". As developed in the
case law, exigent circumstances are generally
found to exist where the police have reasonable
grounds to be concerned that prior announcement
would: (i) expose those executing the warrant to
harm and/or (ii) result in loss or destruction of
evidence and/or (iii) expose the occupants to
harm.
These same factors - officer or occupant safety
or destruction of evidence - are the elements of
exigent circumstances where that term is defined
in the Criminal Code…(see, for example, s. 529.3
authorizing a warrantless entry into a dwelling
house). [paras. 24-25]

6

the drug dealer’s criminal history and associates;
the number of people expected in the residence;
whether children would be present;
the geographical make-up of the search location
— the physical layout and location of the general
area and premises;
the presence of deterrent measures — whether
there was counter-surveillance, barricades,
dogs, and/or weapons; and
threat assessments with respect to the public
near the search location and the officers
conducting the search.

•
•

•
•

•

they are sporadic, being established from time
to time until taken down by the police or rival
drug traffickers. In the chain of distribution,
crack shops are a step above street level sales;
they operate on a 24-hour, 7 day per week basis;
they are in a location where one can obtain a
supply of crack cocaine, typically from a
residence utilized for the sale of the drug;
people are employed to work in shifts, given the
fact that the sales take place 24-hours per day;
it is not uncommon for the operators to erect
barricades to deter the police or to protect the
supply of drugs from theft or robbery from rival
dealers;
operators of crack shops try to limit the quantity
of drugs kept on location to limit losses in the
event of police search activity or theft;

www.10-8.ca

Volume 7 Issue 5
September/October 2007

•

•

•

•

•

•

•

•

operation (retail crack distribution); [the
actions by rival traffickers present a real and
accused’s] criminal history of threats and
significant threat to operators of crack shops.
weapons charges; the known counter-surveillance
In some cases, they impersonate the police to
in Uniacke Square; and the anticipated presence
attempt to obtain compliance of the crack shop
of a pit bull in the residence. In addition, there
operator. In other cases, the actions taken by
was a real chance of the destruction of the
rival
traffickers
may
involve
threats,
relatively small quantity of crack cocaine should
intimidation, assaults, fire bombings, killings,
the police announce their presence or be detected
etc.
by counter-surveillance. Finally, the police were
crack shop operators will attempt to deter rival
worried about occupant safety arising from the
possibility of weapons and the presence of
traffickers by several methods, including hiring
children. The judge did not discount this evidence
look-outs to warn of approaching police or rivals,
or suggest that it did not provide sufficient
obtaining aggressive dogs, such as pit-bulls or
reasons for a forced entry. [para. 42]
Rottweillers, or arm themselves with firearms or
………
other weapons.
crack shops are known to exist throughout the
The judge seems to have concluded that the fact
Halifax Regional Municipality, but Spryfield and
that the police did not re-evaluate the planned
the Gottingen/Uniacke street areas are
forced entry upon arriving at the scene,
demonstrates that they were acting only in
predominant areas for sales of crack cocaine;
accordance with a policy to force entry and not
the method of distributing crack in these areas
due to exigent circumstances.
varies for a number of reasons, including
whether operators are incarcerated
It is my respectful view
“The decision to force entry
and the extent to which a crack shop
that the judge erred in
must be made on the
may
impinge
on
street
level
two ways: (i) in failing to
information
available
to
the
consider whether the
distribution;
circumstances
drug trade violence is well known to police in advance of the search. exigent
which
warranted
the police
the Uniacke Square area, and has
Just as the “Crown cannot rely planning a forced
entry
resulted in numerous baseball bat
upon ex post facto justifications” had changed when the
assaults,
countless
shootings,
police reached the door of
... neither can the defence
including
those
involving
police
the residence; and (ii) by
officers, and at least six murders in attack the decision on the basis
taking into account facts
of circumstances that were not which could not have been
that immediate area;
counter-surveillance is known to exist reasonably known to the police.” known to the police prior
to entry and, in any event,
in the area to alert drug dealers to
which
were
not
relevant
to the decision to force
police presence;
entry.
The
decision
to
force
entry must be made
when occupants of crack shops are alerted to
on the information available to the police in
police presence in advance of search activity,
advance of the search. Just as the “Crown cannot
officer safety is compromised and the possibility
rely upon ex post facto justifications” ... neither
of destruction of evidence increases; and
can the defence attack the decision on the basis
experience has established that so-called "hard
of circumstances that were not reasonably known
entries" enhance officer safety and decrease
to the police.
the opportunity for crack shop operators to
The judge did not elaborate upon how the fact
destroy evidence.

Unlike cases where police force entry under a
general no knock policy with no evidence of officer
safety or evidence destruction issues, there was
evidence in this case suggesting concerns about
safety and loss of evidence. The Court stated:
Here, there was cogent evidence of risks to
officer safety arising from the nature of the

Volume 7 Issue 5
September/October 2007

that the windows of the residence were in
darkness when the police arrived negated their
legitimate concerns about officer and occupant
safety and the destruction of the evidence.

The judge’s criticisms of the forced entry were:
(i) the police should have tried the handle to the
front door of the residence to determine if it was
unlocked; (ii) they should have had a female

www.10-8.ca

7

officer present, anticipating that they might find
[the accused’s] wife...in bed without clothes on (as
it turned out, was the case); (iii) they should have
made a less dramatic entry to occasion less stress
to the children; and (iv) a dog was not found at
[the residence].
The danger to the police in testing the door to the
premises is obvious. As [the detective] testified it risked alerting the occupants (including the
dog) to the presence of an intruder and, even if
the door knob is unlocked, there may be a bolt,
chains or barricades which prevent entry. The
occupants would not know whether it was the
police or rival drug dealers and might respond with
weapons or other deterrent measures. That
children were present and would likely be in bed,
thus safer, was a factor considered by the police.
They were aware that [the accused’s] wife lived in
the premises. In executing the warrant at 2:20
a.m. it would not be surprising to find the
occupants in bed. That [the accused] would be in
bed without clothing could not have been known to
the police in advance, nor did it have any relevance
to their concerns for officer safety and
destruction of the evidence. Neither did the fact
that the occupants were in bed mean they would
not have had an opportunity to destroy the
evidence had the police announced their presence
and awaited entry. Finally...one of the occupants
of [the residence], testified that [the accused]
had kept a pit bull in residence, but that the dog
was stolen before the search. It is my respectful
view that the issues identified by the judge do not
contradict the police assessment that there were
exigent circumstances warranting a forced entry.
[para. 45-49]

The Nova Scotia Court of Appeal concluded the trial
judge did not determine whether exigent
circumstances existed in this case even if it was the
general police practice to effect hard entries. By
failing to consider relevant factors and by
considering irrelevant factors (information learned
after entry) the trial judge erred in holding the
manner of search breached s.8 of the Charter. The
Crown’s appeal was allowed and a new trial was
ordered.
Complete case available at www.canlii.org

Note-able Quote
“Never tire in doing good” - Galatians 6:9

8

LEGALLY SPEAKING:

Informer Privilege

“Police work, and the criminal justice system
as a whole, depend to some degree on the
work of confidential informers. The law has
therefore long recognized that those who
choose to act as confidential informers must
be protected from the possibility of retribution. The law’s
protection has been provided in the form of the informer privilege
rule, which protects from revelation in public or in court the
identity of those who give information related to criminal matters
in confidence. This protection in turn encourages cooperation
with the criminal justice system for future potential informers.

.........
The rule applies to the identity of every informer: it applies when
the informer is not present, where the informer is present, and
even where the informer himself or herself is a witness. It applies
to both documentary evidence and oral testimony. It applies in
criminal and civil trials. The duty imposed to keep an informer’s
identity confidential applies to the police, to the Crown, to
attorneys and to judges. The rule’s protection is also broad in
its coverage. Any information which might tend to identify an
informer is protected by the privilege. Thus the protection is not
limited simply to the informer’s name, but extends to any
information that might lead to identification.

.........
The informer privilege rule admits but one exception: it can be
abridged if necessary to establish innocence in a criminal trial
(there are no exceptions to the rule in civil proceedings).
According to the innocence at stake exception, “there must be
a basis on the evidence for concluding that disclosure of the
informer’s identity is necessary to demonstrate the innocence of
the accused”. It stands to be emphasized that the exception will
apply only if there is an evidentiary basis for the conclusion; mere
speculation will not suffice. The exception applies only where
disclosure of the informer’s identity is the only way that the
accused can establish innocence.

.........
[T]he general rationale for the informer privilege rule requires a
privilege which is extremely broad and powerful. Once a trial
judge is satisfied that the privilege exists, a complete and total
bar on any disclosure of the informer’s identity applies. Outside
the innocence at stake exception, the rule’s protection is
absolute. No case-by-case weighing of the justification for the
privilege is permitted. All information which might tend to identify
the informer is protected by the privilege, and neither the Crown
nor the court has any discretion to disclose this information in
any proceeding, at any time.” - Supreme Court of Canada
Justice Bastarache, Named Person v. Vancouver Sun, 2007 SCC
43, references omitted.

www.10-8.ca

Volume 7 Issue 5
September/October 2007

ARRESTEE MUST BE DILIGENT
IN ACCESSING COUNSEL
R. v. Van Binnendyk, 2007 ONCA 537
The accused was stopped for speeding
and the officer noted signs of
impairment. The officer read the
breathalyser demand, advised the
accused about his right to counsel and legal aid, and
took him to the police station for breathalyser
tests. At the station, he was again told about his
right to counsel and legal aid. On both occasions he
named his lawyer and said he was “not accepting
anyone else.” He did not, however, have a telephone
number for his lawyer.

disagreed, upholding the lower judgments. The Court
said:
…a person detained by the police must be provided
with a reasonable opportunity to exercise the
right to counsel and, except in cases of urgency or
danger, the police must refrain from eliciting
evidence from the detainee until he or she has had
that reasonable opportunity. The detained or
arrested person who is offered the opportunity to
contact counsel and asserts his right to a
“particular counsel” must, however, exercise that
right diligently.
While an accused person has a right to his or her
counsel of choice, that right is not absolute. If
the lawyer chosen is not available within a
reasonable amount of time, the accused person will
be expected to exercise the right to counsel by
calling a different lawyer…

The police found a number for the accused’s lawyer,
called it, and left a message that he was
The [accused] had the onus of
in custody awaiting a breath sample and
“While
an
accused
person
proving
on
a
balance
of
wanted to speak to him before providing
has
a
right
to
his
or
her
probabilities
that
his
s.
10(b)
a sample. A call back number was also
left on the message. After waiting counsel of choice, that right Charter rights had been violated.
The [accused’s] onus was to prove
about an hour, the accused was told his is not absolute. If the lawyer
that his right to retain and
lawyer had not called back and he was chosen is not available within instruct counsel without delay, and
asked if he wanted to call another one. a reasonable amount of time, to be informed of that right, was
He declined. The police advised him that
the accused person will be breached. In discharging that
if he changed his mind and wanted
onus, the [accused] had to prove as
expected
to
exercise
the
well that he acted with reasonable
another lawyer he could let them know
right
to
counsel
by
calling
a
diligence in the exercise of his
and it would be arranged. The accused
right to choose counsel. [reference
different
lawyer.”
never asked to speak with another
omitted, paras. 9-11]
lawyer and two breath tests were
taken, both readings exceeding 80mg%.
In upholding the trial judge’s ruling that the accused
At trial in the Ontario Court of Justice on charges
of impaired driving and over 80mg%, the accused
argued the police violated his s.10(b) Charter rights
and that the breathalyser results should be
excluded as evidence. The trial judge ruled that the
accused only wanted his lawyer of choice and was not
reasonably diligent in exercising his right to counsel.
The accused had not established that his s.10(b)
right had been violated and he was convicted of over
80mg%. An appeal to the Ontario Superior Court of
Justice was unsuccessful.
The accused then appealed to the Ontario Court of
Appeal arguing that the lower courts erred in holding
that his right to counsel had not been denied. In a
unanimous endorsement, the Ontario Court of Appeal

Volume 7 Issue 5
September/October 2007

did not make reasonably diligent efforts in
exercising his right to counsel, the Court stated:
Here, the police informed the [accused] about
Legal Aid duty counsel, they attempted to contact
his counsel of choice and they repeatedly offered
to contact a different lawyer if he changed his
mind. The [accused] refused all these efforts
insisting that he would only speak with his counsel
of choice. In this context, including the findings
of the trial judge that the police discharged their
duty, the [accused] did not prove that he acted
with reasonable diligence or that his s. 10(b)
Charter rights had been violated. [para. 13]

The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

www.10-8.ca

9

DRIVER ONLY NEED
UNDERSTAND IMMEDIACY OF
DEMAND
R. v. Neitsch, 2007 ABCA 226
The accused was stopped driving by
police as part of a Checkstop program.
He admitted drinking earlier in the
evening and a moderate odour of liquor
was smelled coming from the vehicle. A demand for
a roadside screening test was read, but the officer
did not include the word “forthwith” in the demand.
The test was taken and the accused failed. He was
arrested and read his legal rights and the
breathalyser demand. Two breath samples were
obtained and the accused was charged with over
80mg%.
At trial in Alberta Provincial Court the accused
argued, in part, that the roadside demand was not
proper under s.254(2) of the Criminal Code because
it did not include the word “forthwith”. The trial
judge found the absence of the word “forthwith”
was not fatal to the demand because the
circumstances established that the accused
understood the necessity of providing a sample
forthwith. He was convicted of over 80mg%.
The accused’s appeal to the Alberta Court of
Queen’s Bench was unsuccessful. The appeal judge
ruled the trial judge was correct in concluding that
a roadside demand under s.254(2) does not require
the officer to utter the word “forthwith” or similar
language if the circumstances are such that the
accused understands the immediacy of the demand.
The entirety of the circumstances surrounding the
demand must be considered, including events after
the demand, like whether the accused actually
complied forthwith. Here, the accused immediately
complied with the demand, only five minutes passed
from the demand to the test, and he was told he
would be charged if he did not comply, which
highlighted the immediacy of the situation. The
accused’s appeal was dismissed.
The accused then appealed to the Alberta Court of
Appeal, again arguing that the judge should have only
considered evidence contemporaneous with the
demand when deciding whether the “forthwith”

10

requirement was met and could not consider all of
the evidence surrounding the demand. In a
memorandum of judgment, the Court of Appeal held
“the word ‘forthwith’ does not have to be used in
order for a police officer to make a valid demand for
a screening test pursuant to section 254(2) of the
Criminal Code.” Furthermore, in determining whether
the necessary immediacy of supplying a breath
sample was conveyed to a driver, regard need not
only be given to the moment the demand itself was
made. It is appropriate to consider the broader
circumstances to determine whether immediacy has
been conveyed, including surrounding circumstances
subsequent to the demand. The Court stated:
When all the critical events occur within a few
minutes, it would be highly artificial to consider
only the initial conversation between the officer
and the driver in deciding whether immediacy has
been conveyed. A brief interaction between two
individuals does not occur in water-tight
compartments. It is not meaningful to take
account of a verbal agreement to comply with a
demand, without also considering evidence about
whether actual compliance followed immediately
thereafter. The marginally later facts provide a
context for the earlier. In a different case, a
driver’s initial agreement to comply with a demand,
followed by a retraction and refusal to do so,
might detract from the conclusion that immediacy
was understood. Similarly, a driver’s own testimony
(if believed) about what he did or did not
understand might influence a fact finder’s
conclusion as to whether immediacy was conveyed.
Here, all the events were part of a continuum, with
a context provided by the totality. The [accused]
was stopped; the demand was made (which
included the [accused’s] affirmative response to
the question of whether he would comply); he was
taken immediately to a nearby machine; and he did
comply. All this occurred within about five
minutes. Under these circumstances, there was no
error in considering all this evidence to conclude
that immediacy had been conveyed and that the
demand was therefore valid. [paras. 11-12]

The accused’s appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

www.10-8.ca

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Volume 7 Issue 5
September/October 2007

DOCTRINE OF RECENT
POSSESSION NOT MANDATORY
R. v. Choquette, 2007 ONCA 571
The accused and another man were
arrested after police responded to an
assault complaint. Police found two
rifles, stolen 17 days earlier in another
city, in the SUV the men were driving. The men were
charged with weapons offences, including possession
of stolen weapons. At trial in the Ontario Superior
Court of Justice the accused was convicted on five
weapons charges, including two counts of possessing
prohibited weapons knowing they were stolen.
The Crown proved the rifles were stolen before the
police seized them and because of the “short time”
between the theft and their possession, the judge
“deemed” the accused knew they were stolen. The
accused was sentenced to two years in prison
following the 30 months of pre-sentence custody,
but he appealed to the Ontario Court of Appeal
arguing the trial judge erred in applying the doctrine
of recent possession as proof of knowledge that the
guns were stolen.
The doctrine of recent possession allows the judge
or jury to draw an inference of guilty knowledge
where the Crown establishes that goods were stolen
and the accused is in unexplained recent possession
of those goods, failing evidence to the contrary.
However, no adverse inference can be drawn from
possession alone. The possession must be recent and
the doctrine will not apply when an explanation is
offered which might reasonably be true, even if the
judge or jury is not satisfied of its truth. This
inference of guilt is not mandatory; but rather it is
permissive.
Justice Feldman, authoring the unanimous judgment
for the Ontario Court of Appeal, found the trial
judge did not consider the doctrine as automatic.
Rather, he drew the appropriate inference
supported by the evidence. Justice Feldman stated:
Clearly in this case, as no explanation was
offered, once the trial judge was satisfied
beyond a reasonable doubt that the [accused]
possessed the rifles, he was entitled to draw
the inference that the [accused] knew they
were stolen, if he was satisfied that the theft

Volume 7 Issue 5
September/October 2007

was sufficiently proximate in time to the
possession and if there was nothing else in the
evidence that would cause him not to draw the
inference. However, the inference is not
mandatory and therefore an accused is never
deemed to have knowledge based on the
doctrine. It merely articulates a permissible
inference that can be drawn based on
circumstantial evidence. [para. 11]

The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

LEGALLY SPEAKING:

Doctrine of Recent Possession

“In summary...the doctrine of recent
possession may be succinctly stated in
the following terms. Upon proof of the
unexplained possession of recently
stolen property, the trier of fact may-but not must--draw an inference of guilt of theft or of
offences incidental thereto. Where the circumstances
are such that a question could arise as to whether the
accused was a thief or merely a possessor, it will be
for the trier of fact upon a consideration of all the
circumstances to decide which, if either, inference
should be drawn. In all recent possession cases the
inference of guilt is permissive, not mandatory, and
when an explanation is offered which might reasonably
be true, even though the trier of fact is not satisfied of
its truth, the doctrine will not apply.” - Supreme Court
of Canada Justice McIntyre, R. v. Kowlyk, [1988] 2
S.C.R. 59 [para. 12]

LEGALLY SPEAKING:

Conditional Sentences

“There is no doubt that Parliament
intended the imposition of a conditional
sentence to be more punitive than
probation, and to be more restrictive of
the offender’s liberty. Thus, except in
rare cases, a conditional sentence must carry with it
some form of punitive terms, such as house arrest
and/or a curfew.” - Ontario Court of Appeal, R. v.
Chartier, 2007 ONCA 706 [para. 5]

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11

INTERMEDIARY GUILTY OF
TRAFFICKING IF COMMITS
SPECIFIC ACT
R. v. Wood, 2007 ABCA 65

Justice Cote, writing the judgment for the Court of
Appeal, first examined what trafficking entails. He
found it did not necessarily require a sale. Section
2(1) of the CDSA defines trafficking as any of a
number of acts, including to sell, give, transfer,
send, deliver, or offer to do any of these. The mens
rea component for trafficking is knowledge that it
is a controlled substance and intent to commit the
forbidden act (such as transporting). Justice Cote
stated:

Two undercover officers met the
accused, who was panhandling, and
asked about the purchase of “an hour
of hard”, slang terminology for a gram
of crack cocaine. The accused used an
Mens rea is a type of intent …
officer’s cell phone and then the three
[F]or trafficking [the mens [F]or trafficking it is the intent to
walked four blocks to a Safeway rea] is the intent to do the act,
do the act, such as sell, offer to
parking lot. There, a vehicle arrived and
such as sell, offer to sell, sell, transport, deliver, or offer to
the accused took the buy money from
transport, deliver, or offer to deliver, etc. (It also requires
an officer, went to the vehicle, and
knowledge that the chattel is an
deliver...”
returned with the drugs (walking a
illegal drug or substance.)
block or two). In exchange for
Very different is motive. That is the ultimate
facilitating the transaction the accused was given a
result expected or hoped from the act or
small piece of crack cocaine (known as a hoot). He
transaction, such as making a profit, harming
was charged with trafficking cocaine under s.5(1) of
someone, having fun, fooling someone, gaining
the Controlled Drugs and Substances Act (CDSA).
attention, relieving boredom, getting exercise,
At trial in Alberta Provincial Court the accused was
acquitted. The trial judge found the accused only
gave incidental assistance, lacked the necessary
mens rea for trafficking, and his assistance was not
necessary for the consummation of the purchase.
The Crown appealed to the Alberta Court of Appeal.

gaining admiration of someone, or achieving some
political aim.
No particular or any motive is needed for a
criminal conviction for trafficking. Indeed,
motivation is usually not needed for criminal
liability, and is often mysterious or disputed …
[references omitted, paras. 36-39]

BUYER-SELLER DRUG TRANSACTION OFFENCE GRID
ROLE

BUYER

INTERMEDIARY

SELLER

Principal

Charge

If commits acts defined
as trafficking, such as
give, transfer, or deliver,
charge trafficking

Charge

Aiding

12

p
o
s
s
e
s
s
i
o
n

If does not commit acts
defined as trafficking,
but acts solely to assist
buyer, charge simple
possession
If does not commit acts
defined as trafficking
but acts to assist seller,
charge trafficking

www.10-8.ca

t
r
a
f
f
i
c
k
i
n
g
Volume 7 Issue 5
September/October 2007

In this case Justice Cote found the accused had
personally committed all the elements of a
trafficking offence. He said:
Here, the accused … kept the seller and buyer
separate, and shuttled between the two with the
money. I will assume that the accused was not
himself a seller…. However, it is at least arguable
that he “gave” the cocaine to the buying
undercover constables. He certainly “transferred”
and “delivered” the cocaine. He carried it first
across the parking lot, and then part of the
distance up [the street] to the park. And he
certainly “offered to do” those things (before and
at this time). [para. 28]

As for whether the accused could use “buyer’s
agent” as a free standing defence, the Court
rejected this argument. When someone buys illegal
narcotics
through
an
intermediary,
that
intermediary will not be guilty of trafficking if they
were merely the buyer’s agent or helper (solely
aiding the buyer) and did not commit any of the acts
defined as trafficking. However, if the intermediary
does commit an act defined as trafficking (as the
accused did in this case), the fact he was helping the
buyer is no defence. “Whom the accused assisted or
intended to assist, is irrelevant where the accused
personally committed forbidden acts,” said Justice
Cote.
The Crown’s appeal was allowed, a conviction for
trafficking was entered, and the case was sent back
to Provincial Court for sentencing.
Complete case available at www.albertacourts.ab.ca

BY THE BOOK:
Trafficking

DETENTION DOES NOT ALWAYS
BEGIN AT MOMENT OFFICER
DECIDES TO ARREST
R. v. Makhmudov & Marinov, 2007 ABCA 248
The accuseds Makhmudov and Marinov
were at a bus depot in Calgary en route
from Vancouver to Toronto. A police
officer, working as part of a Jetway
program at the bus depot, smelled the zipper area of
two identical duffle bags, noting a smell of
marihuana. One bag was labeled “MERINOV” while
the other was marked “KUD”. The officer secured
the bags in the back of a police vehicle. In an effort
to identify the owners of the bags, police
implemented an undercover operation by telling
passengers there was a problem with some of the
bags and asked that they be re-tagged. The two
suspicious bags were placed beside the bus and the
tags removed or hidden. One officer dressed in a
Greyhound bus sweater reviewed passenger bus
tickets.
A police officer asked Marinov if any bags were his
and that they needed to be tagged properly. He
identified one of the suspicious bags as his and told
the officer the other belonged to his friend. An
officer went onto the bus and asked for the
passenger “KUD”. Makhmudov identified himself,
whereupon he was told that some bags had been
improperly tagged. The officer handed Makhmudov
a tag and told him to fill it out and place it on his bag.
At this point Makhmudov identified the second
suspicious bag as belonging to him, filling out a tag
and placing it on the bag. Immediately after the bags
were identified, the accuseds were arrested and the
bags were searched. In each bag police found
restricted guns, ammunition, cocaine and marihuana.

Section 2(1) of the Controlled Drugs and
At trial in the Alberta Court of Queen’s Bench, the
Substances Act defines “traffic” in respect
trial judge concluded the accuseds were not
to Schedules I to IV substances as
detained, the arrests were lawful and the interim
including “(a) to sell, administer, give,
seizure of the bags without a warrant (placing them
transfer, transport, send or deliver the
in the police car) was done by a police officer acting
substance, (b) to sell an authorization to
in the execution of his duty for the purpose of
obtain the substance, or (c) to offer to do anything
preserving evidence. None of the accuseds rights
mentioned in paragraph (a) or (b), otherwise than under the
under ss.7, 8, 10(a), or 10(b) of the Charter were
authority of the regulations. “Sell” is also defined as
breached. The accuseds were convicted for weapons,
including to “offer for sale, expose for sale, have in
cocaine, and marihuana offences.
possession for sale and distribute, whether or not the
distribution is made for consideration.”
Volume 7 Issue 5
www.10-8.ca
13
September/October 2007

situation where the suspect admits to a killing
The accuseds appealed to the Alberta Court of
while talking to a person he believes to be a new
Appeal arguing that their movements were being
acquaintance – who is actually a police officer. On
controlled by the police and therefore they were
the [accuseds’] theory,
detained. They submitted
once the admission of the
“The
hypothetical
possibility
that
the
that detention occurs the
[accuseds] would have been detained if killing is made and the
moment a police officer forms
undercover
officer
they tried to flee, does not establish that decides to arrest then, or
the state of mind that the
suspect will be prevented
they were detained. The [accuseds] were at some future time, he
from leaving, even if the
not in the coercive power of the state just must immediately, without
conversation,
suspect has no knowledge of
because the officers had resolved to arrest further
advise the suspect that he
the officer’s intention. Here,
them
at
some
future
point
in
time
should
will be detained and of his
the police testified they
Charter rights. He could
they
have
attempted
to
flee.”
would have arrested the
not otherwise continue the
accuseds if they tried to flee
conversation to inquire
the scene. The accuseds also contended that they
about the location of the body or a murder weapon.
were denied their rights under s.10(a) and (b) of the
[paras. 15-16]
Charter as well as their s.7 right to silence.
Since there was no detention, neither the accuseds
Furthermore, they argued the search of the bags
s. 10 (right to counsel) or s.7 (right to silence) were
was not justified because there were no reasonable
engaged.
grounds; the smell did not meet the plain view

doctrine because it was not immediately apparent.
Thus the arrests were not lawful. Finally, the initial
temporary seizure of the bags was not authorized
because the officer could not point to a specific
statute or common law rule authoring the seizure.
In a memorandum of judgment the Alberta Court of
Appeal found there were no detentions and the
searches were reasonable.

Detention?
Section 9 of the Charter guarantees everyone the
right not to be arbitrarily detained or imprisoned.
However, without a finding of detention there will be
no s.9 breach. The Court of Appeal concluded there
was no detention because the accused was neither
physically nor psychologically detained. The Court
stated:
The hypothetical possibility that the [accuseds]
would have been detained if they tried to flee,
does not establish that they were detained. The
[accuseds] were not in the coercive power of the
state just because the officers had resolved to
arrest them at some future point in time should
they have attempted to flee…
We cannot accept the [accuseds’] submission that
the detention begins at the instance the police
officer decides that a suspect will be arrested.
We can postulate many scenarios where an
application of that concept would lead to absurd
results. To illustrate, one might consider a

14

Search?
The initial temporary seizure of the bags was
justified under s.489(2) of the Criminal Code. The
Court held:
The initial, temporary seizure of the bags was not
unlawful. After smelling marijuana, the police
officer had reasonable grounds to believe the
bags contained marijuana. The officer testified
that the seizure was to preserve that evidence.
The police officer’s lack of knowledge of, and
failure to cite the particular provision of the
Criminal Code, was not fatal. Section 489(2)
permits a police officer in the execution of his
duty to seize things that he believes, on
reasonable grounds, have been used in the
commission of an offence or will afford evidence
in respect of an offence. Here, the section was
satisfied and the seizure was lawful. [para. 18]

The accuseds’ rights under s.8 of the Charter were
not breached, the arrest was made on ample
grounds, and the search was lawfully conducted. The
accuseds’ appeal was dismissed.
Complete case available at www.albertacourts.ab.sa

Notable Quote
“Good faith cannot be claimed if a Charter violation

is committed on the basis of a police officer’s ...
ignorance as to the scope of his or her authority.” Justice Romilly R. v. Peters, 2006 BCSC 1560

www.10-8.ca

Volume 7 Issue 5
September/October 2007

STOPPING BEHIND PARKED
VEHICLE: NO DETENTION
R. v. Lamontagne, 2007 BCSC 652
Just before 1 a.m. a police officer saw
the accused’s vehicle parked at a 45
degree angle on the roadway facing the
centre with the lights on. As the
officer slowed down she noticed there was a female
standing on the passenger side talking to the driver
of the vehicle. Although there was no other traffic,
if there had been the parked vehicle would have
impeded it. The officer drove by and made a u-turn,
pulling in behind the accused’s vehicle, and turning on
her red and blue strobe lights. She walked up to the
car and the accused rolled down his window, The
officer asked what he was doing and during the
conversation noted signs of impairment; a stench of
liquor from his breath, slurred speech, watery eyes,
an inability to focus, producing an FAC card after
looking through his wallet when asked for his licence.
The accused was placed under investigation for
impaired driving and read his rights, police warning,
and breathalyzer demand.
At trial in British Columbia Provincial Court the
officer testified she stopped because she was
suspicious (the accused’s vehicle was stopped in the
middle of the road and there was a lady chatting
with the driver), but had no particular offence in
mind. She just wanted to know what was going on.
The trial judge found the officer detained the
accused when she pulled in behind his vehicle and
turned on her emergency lights. In his view, the
officer came across an abnormal situation which
caused her to become generally suspicious. Although
she was not performing a check stop or random stop
and had no particular offence in mind, the officer
wanted to know what was going on and did not
arbitrarily detain the accused. The evidence of
impairment was admissible and the accused was
convicted of impaired driving.
The accused appealed to the British Columbia
Supreme Court arguing the trial judge erred in
concluding the detention was not arbitrary and that
the evidence should not have been admitted. The
Crown, on the other hand, submitted that there was
no detention at all.

Volume 7 Issue 5
September/October 2007

Justice Balance agreed with the Crown. Detentions
under ss. 9 and 10 of the Charter require some form
of compulsion or coercion in response to a direction
or demand of a police officer. He stated:
It is my opinion that the features of the
encounter between [the constable] and the
[accused] do not amount to a detention within the
meaning of s. 9. I would respectfully disagree with
the learned trial judge that the activation of the
officer's lights on her police vehicle, pulled in
behind the [accused’s] stationary vehicle,
converted the interaction into a detention.
Taking into account the factual context at large,
that act by the constable was not a means by which
she assumed control over the [accused’s]
movements by a demand or a direction. Even if the
activation of the emergency lights could be said to
amount to a direction to remain stopped, there was
no evidence that the lights triggered any kind of
response on the part of the [accused]. There is no
evidentiary foundation to find, or from which to
reasonably infer, that the [accused] reasonably
believed he was under any compulsion or coercion
to respond in any way to this constable.
The [accused’s] vehicle was already stopped when
[the constable] came upon it. He was operating a
stationary motor vehicle, which he had stopped
diagonally across a travelled portion of the
highway.
By parking her vehicle behind the
[accused’s] and turning on her lights, [the
constable] was indicating to the [accused] that she
had arrived and was a police officer, but was not
assuming control over his movement by demand or
direction.
The [accused’s] conduct did not change. He was
stopped and seated in his automobile before the
constable arrived at his window, and he was still
stopped and seated in his automobile when she
approached him in his vehicle. Nothing changed.
[paras. 16-19]

Being no detention there was no need to address
whether it was arbitrary. The accused’s appeal was
dismissed.
Editor’s note: The accused’s application for leave to
appeal was dismissed by the British Columbia Court
of Appeal, 2007 BCCA 390.

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15

REASONABLE GROUNDS
REQUIRES SUBJECTIVE BELIEF
BASED ON OBJECTIVE CRITERIA
R. v. Rhyason, 2007 SCC 39
The accused was driving a vehicle when
he struck and killed a pedestrian
crossing the street in a marked, lit
crosswalk at a controlled intersection.
The attending officer noted the accused had
bloodshot eyes, an unusually blank stare, possibly
from shock, and he blinked unusually slow. He was
also shaking and had alcohol on his breath. He
admitted to being the driver and was polite, but
upset, showed no balance or speech problems, and
did not take long to answer questions. The officer
arrested him for impaired driving causing death
after forming the “opinion” he had consumed enough
alcohol to impair his driving. Breath samples were
subsequently taken.
At trial in the Alberta Court of Queen’s Bench the
accused argued the officer did not have the
requisite reasonable and probable grounds needed to
demand a sample of his breath under s.254(3) of the
Criminal Code. In his view, the results of the breath
sample should have been excluded. The judge
disagreed and concluded that the officer did have
the required grounds, although borderline. The trial
judge noted there were no obvious signs of
impairment and the signs that were evident were
equally consistent with emotional distress, but the
officer did have a deceased pedestrian, an admitted
driver with a smell of alcohol on his breath, and
minor evidence consistent with alcohol consumption.
Furthermore, the accident itself was a valid
component of the officer’s grounds even though
there was no slurring, no staggering, and no unusual
driving before the accident. The breathalyser
certificate was admissible and the accused was
convicted of over 80mg% and impaired driving
causing death.
The accused then appealed the
trial judge’s ruling to the Alberta
Court of Appeal again submitting,
among other issues, that the
officer did not have reasonable
and probable grounds for the

16

breath demand. In a 2:1 majority, the Alberta Court
of Appeal first noted that “a finding that there were
reasonable and probable grounds requires a finding
that the officer subjectively have an honest belief
that the suspect has committed the offence and
objectively there must exist reasonable grounds for
this belief” (internal quotations omitted).
Subjectively, in this case, the officer’s “opinion” the
accused was impaired was no different than an
honest belief he was impaired. Objectively, the
officer had a combination of facts that the accused
was impaired that went beyond alcohol consumption
alone. Even without evidence of unusual driving the
officer was entitled to consider the accident that,
with no other apparent cause, suggested alcohol
consumption had impaired the driver’s conduct.
Justice Slatter, in dissent, would have allowed the
appeal, set aside the convictions, and ordered a new
trial. In his view, the trial judge applied the wrong
legal test in deciding whether the officer had
objective reasonable and probable grounds.

The Supreme Court Decides
The accused then appealed to the Supreme Court of
Canada submitting the trial judge applied the wrong
test in determining whether or not the officer had
reasonable and probable grounds for demanding a
breath sample. He argued the trial judge found that
evidence of alcohol consumption alone was sufficient
by itself to establish reasonable and probable
grounds.
In a 5:4 judgment, the Supreme Court concluded the
trial judge applied the correct test and did not find
the officer’s reasonable and probable grounds was
based on alcohol consumption alone.

Justice Abella, authoring the opinion for the
majority, first reviewed the requirements for a
lawful demand under s.254(3) of the Criminal Code.
Pursuant to this provision a police officer may
demand a breath sample
“[T]he circumstances of an accident provided the officer believes
can be taken into account, along on reasonable and probable
with other evidence, in determining grounds that the person is
whether an officer had reasonable committing or within three
and probable grounds to arrest an hours has committed, as a
result of the consumption of

individual for impaired driving.”
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alcohol, impaired driving or is driving with a blood
alcohol content over 80mg%. The test for
reasonable grounds has both an objective (facts,
circumstances) and subjective (honest belief)
component.

offence to operate a motor vehicle after having
consumed alcohol. Rather, the officer needs grounds
a driver is impaired by alcohol or had consumed so
much that their blood/alcohol level exceeded
80mg%.

In this case, Justice Abella noted, the trial judge
correctly considered the relevant combination of
facts:

Here, Justice Charron found the trial judge did not
accurately state the legal test for reasonable and
probable grounds in his judgment and, if he had,
there might have been a different result on the
breath samples’ admissibility. The combination of
objective facts listed by the trial judge (a deceased
pedestrian at the accident scene, an odour of alcohol
on the admitted driver’s breath, and other minor
evidence consistent with alcohol consumption) did
not satisfy the test. A deceased pedestrian at the
accident revealed nothing about the accused’s
condition and the other facts referred to alcohol
consumption only. In addressing the use of the
accident to support reasonable grounds, Justice
Charron stated:

•
•
•
•

The smell of alcohol on the accused’s breath;
Minor signs of impairment (bloodshot eyes
and blank stare);
The accused’s admission to driving; and
The circumstances surrounding the accident.
On this point Justice Abella stated:
…the circumstances of an accident can
be taken into account, along with other
evidence, in determining whether an
officer had reasonable and probable
grounds to arrest an individual for
impaired driving.
This is not to suggest that consumption
plus an unexplained accident always
generates reasonable and probable
grounds or, conversely, that it never
does. What is important is that
determining
whether
there
are
reasonable and probable grounds is a
fact-based exercise dependent upon the
circumstances of the case. In this case,
the presence of an unexplained accident
was
one
factor
[taken]
into
consideration when determining those
grounds existed. [paras. 18-19]

The majority found the trial judge relied on more
than evidence of mere alcohol consumption in finding
that reasonable and probable grounds for demanding
a breath sample existed.

A Different View
The minority, on the other hand, would have allowed
the appeal, set aside the accused’s conviction, and
ordered a new trial. Justice Charron, writing the
opinion of the minority, agreed with the majority
that if there was only evidence the accused had
consumed alcohol, this would not be sufficient to
establish the requisite grounds for a demand under
s.254(3). As he noted, there is a crucial distinction
between consumption and impairment. It is not an

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September/October 2007

…I agree with my colleague that the
circumstances of an accident, along with other
evidence, can be taken into account in determining
whether an officer had the requisite grounds.
What defeats the argument here is that the
circumstances of the accident did not form part
of the evidential basis upon which [the officer]
based his demand. Had [the officer] given
evidence about his observations of the scene of
the accident, and relied on inferences drawn from
those observations as part of his basis for making
his demand, the situation might have been
different. But [the officer] nowhere said that an
“accident with no other obvious cause” formed
part of his grounds for believing that an offence
had been committed. In addition, the evidence
reveals that, at the time [the officer] arrested
[the accused] and demanded that he provide
breath samples for analysis, the officer had been
at the scene for about two minutes. Other than
being advised that the pedestrian had died, there
is no evidence that the officer had received any
information about how the accident happened.
What is at issue here are the officer’s reasonable
and probable grounds at the time of making the
demand, not the ex post facto inferences that
can be drawn from the evidence at trial. [para. 28]

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

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17

POLICE POLICY DOES NOT HAVE
FORCE OF LAW
Jensen v. Stemmer et al, 2007 MBCA 42
Two police officers arrested the
plaintiff after her common-law partner
called to report he had been threatened
by her. The common-law partner said
the plaintiff threatened to kill him, but she denied
it. The officers interviewed the two parties
separately and brought them together to get one of
them to leave the home. An angry exchange occurred
and the plaintiff was arrested for uttering a threat
and was transported to the police station. While
being driven to the police station one of the officers
allegedly said, “Just between you an me he’s lying,
isn’t he?”, with the plaintiff responding, “Yes, he is.”
The plaintiff sued the police for false imprisonment.
At trial in the Manitoba Court of Queen’s Bench, the
jury found the police officers did not have
reasonable grounds to make the arrest. They
awarded her $8,800 for false imprisonment and an
additional $25,000 in punitive damages. The punitive
damages were awarded because the jury concluded
the arrest was carried out pursuant to a deliberately
unlawful policy of the police service.
The defendants (police officers) appealed the
decision to the Manitoba Court of Appeal arguing, in
part, that there was no basis for the jury to find the
officers did not have reasonable grounds to arrest
the plaintiff (either subjectively or objectively).
Furthermore, they submitted this was not a case in
which punitive damages should have been awarded.
The Manitoba Court of Appeal dismissed the
defendants’ appeal concerning the existence of
reasonable grounds, but allowed the appeal on the
punitive damages issue. Justice Huband (concurred
in by Justice Monnin) delivered the judgment of the
Court while Justice Hamilton delivered separate
reasons.

The Arrest
Justice Huband ruled that it was easy to understand
why the jury concluded the officers did not have
reasonable grounds. He wrote:
...In my view, the jury was perfectly entitled to
conclude that the officers had no genuine belief,

18

on reasonable grounds, that [the plaintiff] had
uttered a meaningful threat.
Firstly, [the
plaintiff] denied having made any threat and
maintained that position through her criminal trial
and through the civil jury trial. There was no
overt reason why the police officers should have
doubted her word. Secondly, if the officers were
of the belief that she had threatened to kill [her
common-law partner], one would have imagined
that the arrest would have been made at an
earlier stage, rather than seeking a solution which
would have resulted in no charges being laid. The
officers told the parties to find a solution which
would have resulted in separating the parties, at
least temporarily, which is inconsistent with a
belief that [the plaintiff] had uttered a threat to
kill. Finally, there was evidence of the comment
by [the officer], which, if accepted by the jury,
belies any firm belief that [the plaintiff] had
uttered a threat to kill. [para. 25]

Punitive Damages
As for punitive damages, they were inappropriate in
this case. Punitive damages are awarded to punish a
defendant for their egregious conduct. Here, the
jury found the officers did not act recklessly, highhanded, or callous. During their dealings they were
polite and respectful and the arrest, although
unfortunate, was done in good faith and for no
improper motive:
There was, in short, no conduct on their part
which would compare in any way to the
circumstances that gave rise to substantial
punitive damages… There was no plan or scheme
on the part of [the officers] to commit the tort
of false imprisonment, but rather, events
unfolded in a spontaneous manner. There was no
ill motive on the part of the constables. There
was no attempt on their part to cover up their
participation or to colour the facts as they
understood them. [The officers] did not profit
from their conduct. Their behaviour throughout
lacked all elements of outrageous or egregious or
malicious conduct. They were not high-handed or
insulting or demeaning to the plaintiff. There are
simply no grounds to punish [the officers] by the
imposition of punitive damages based upon their
conduct. [para. 36]

The police policy, described by the plaintiff as a
zero tolerance policy for domestic dispute arrests,
was not an aggravating factor that would justify a
punitive award for damages. The policy did not

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reasonable grounds to do so would conclude that
any other standard would apply to a domestic
violence setting. The General Order does not
cancel the responsibility of
“...it is well settled that policy arresting officers to be
by s. 495(1) of the
directives do not have the force of guided
Criminal Code.

mandate an arrest and charge in domestic situations
even if officers did not have reasonable grounds to
believe an offence had been committed. Justice
Huband stated:
In my opinion, the document is less clear
than it should be, but it is far from a
document condoning arrest without a
warrant and without the necessity of
belief, on reasonable grounds, that an
offence has been committed.

law. A policy directive, in and of
itself, cannot create an actionable Finally, and of more
importance
than
the
wrong upon which damages...can particular provisions, the
be assessed.”
document
is
a
policy

The General Order instructs that in the
absence of contradictory evidence, a victim’s
statement alone is sufficient to constitute
reasonable grounds for the laying of a charge. No
doubt that is so in many cases, but not all. The
victim’s statement alone must be convincing to the
point where the officers genuinely believe that
reasonable grounds to arrest and lay a charge do
exist.
Similarly, the document instructs that criminal
charges must always be laid if there is supporting
evidence for a charge. Standing in isolation, the
application of this direction could result in
charges being laid and an accused arrested
whether or not the arresting officers have
formed the opinion, on reasonable grounds, that
an offence has been committed.

However, these statements within the General
Order do not stand alone. The policy statement is
very clear that charges are to be laid “when there
are reasonable grounds to believe that a domestic
assault … has occurred.”
To the same effect is the statement late in the
document stating that arrest is the preferred
response to incidents of domestic violence “where
reasonable grounds exist to believe an offence
has occurred.”
It is also of significance that the arresting
officers are instructed to contact Crown counsel
if there is doubt as to whether charges should be
laid. In other words, the laying of a charge and
the arrest of an individual is by no means an
automatic process.
In my view, when seen in its totality, the General
Order is not an appropriate foundation for the
granting of punitive damages. The document
attempts to provide instruction and direction to
police officers who are dealing with the very
difficult social problem of domestic violence.
Reading the document in its entirety, I do not
think that police officers who are trained not to
charge and arrest a citizen unless they have

Volume 7 Issue 5
September/October 2007

statement, not a regulation
or by-law. It cannot have the effect of changing
either the statutory law of the country or
common law rules concerning arrests by peace
officers. [paras. 47-54]

Furthermore the family and domestic violence order
was a policy statement for the police department. It
was neither a regulation nor a by-law. “It cannot have
the effect of changing either the statutory law of
the country or common law rules concerning arrests
by peace officers,” said Justice Huband. He
continued:
The General Order may be described as a policy
directive, but it is well settled that policy
directives do not have the force of law. A policy
directive, in and of itself, cannot create an
actionable wrong upon which damages, let alone
punitive damages, can be assessed. [para. 55]

The Court found there was no basis for imposing
punitive damages and the award was set aside.

Separate Reasons
Justice Hamilton, providing separate reasons,
agreed the award for general damages was proper,
but the award for punitive damages should be set
aside because it was not available to the plaintiff.
The tort for false arrest is subsumed by the tort of
false imprisonment and occurs when a person is
arrested without justification. The tort is a branch
of a trespass action and a plaintiff does not need to
establish an actual loss to prove their claim. They
merely need to prove the defendants caused their
arrest or detention and the onus then shifts to the
defendants to justify their actions. In this case,
Justice Hamilton held the jury was entitled to reach
the conclusion they did concerning the officers’
reasonable grounds for arrest:
[T]he jury found that the officers did not believe
that [the plaintiff] had committed the offence

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19

for which she was arrested; that is, uttering a
threat against [her common law partner]. In
other words, the officers failed to demonstrate
the subjective element of the test. I agree…that
the jury, based on the evidence before it, was
entitled to reach that conclusion. [The plaintiff]
denied that she made the threat. The officers
attempted to separate [the plaintiff] and [her
common law partner] to find another solution to
the volatile situation other than arrest. And
finally, there was the evidence of [the plaintiff]
that she replied in the affirmative when [the
officer] asked her the following question during
the drive to the police station: “Just between
you and me, he’s lying isn’t he?” [para. 91]

As for the punitive damages award on the basis of
the police policy, Justice Hamilton found the policy
was appropriately put before the jury as context in
assessing the actions of the officers, but it did not
have the force of law and could not create “a legally
actionable wrong upon which damages, let alone
punitive damages, could flow.” The judge should have
told the jury that the policy was not law. She stated:
The principle that policy directions, directives, or
operations manuals, do not have the force of law
has been repeatedly affirmed in the case law.
Most notably, it has been affirmed in the realm
of the administration of justice, including
decisions in the area of both police services and
prison operations… [para. 124]

And further:
…Even if the…Policy has the force of law, I would
have come to the same conclusion. The purpose
of the…Policy is to provide instruction and
direction to police officers who are dealing with
the very difficult problem of domestic
violence…[T]hroughout the document the police
officers are reminded of the need to have
reasonable grounds to arrest. The…Policy does
not cancel the responsibility of arresting officers
to be guided by s. 495(1) of the Code or other
applicable law. [para. 129]

The appeal was allowed in part. The verdict for false
imprisonment was sustained and the award for
punitive damages set aside since there was no
foundation in law for it.
Editor’s Note: Leave to appeal to the Supreme
Court of Canada was dismissed.

WHAT MAKES THE DIFFERENCE
IN A CONFRONTATION?
Insp. Kelly Keith, Atlantic Police Academy
Which of the following statements do you think will
make the difference between winning or losing a
confrontation with a suspect?
1) I can bench press over 300 pounds!
2) I can stand still, close one eye and get a center
shot with my handgun at 50 yards!
3) I can run a marathon in under 3 hours!
4) I can do a jumping spinning back kick 3 feet in the
air!
Assume that you could do all of these things! Would
they, either by themselves or together, make the
difference in a law enforcement confrontation?
Although they are all admirable feats, it is unlikely
for the most part that they would make the
difference many people might think they would. Let’s
take a further look at each one individually.
1.

Bench pressing 300 pounds will develop
strength, which is good thing. But lets take a
look at the exercise in the context of a ground
fight. Is pressing someone off of you the same
as the strength you develop by bench pressing?
I will tell you first hand that there are very
different factors involved in escaping from the
mount position than sheer bench pressing
strength.
A person who weighs 300 pounds has weight
dispersed very differently than a balanced bar
with the same amount of plates on each side.
With traditional bench press, the bar is
decelerated on every movement. Otherwise, the
bar would launch from your hands. Should a body
on top of you in the mount position be
decelerated if you are trying to push that person
off? Training for power is simply moving an
object through the range of motion as fast as
you can with no deceleration! This is why
medicine ball training is very valuable. Another
way to add some functional training to a bench
press exercise is using a beer keg filled with
water in which the weight moves around within.
But ensure you have a spotter in place.

Complete case available at canlii.org

20

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2.

Standing still and closing one eye while shooting
long distances has very little practical
application in a law enforcement gunfight and in
fact may cost an officer their life if the officer
does not understand the difference. This feat
suggests that the officer has great trigger
control, is an above average marksman, and
training of this type can be a useful tool in some
aspects. This being said, however, is it more
important to hit your target in a gunfight or not
get hit?
Statistics tell us that approximately 75 % of
gunfights occur within 10 feet. Another fact
is that law enforcement officers are generally
re-acting to a threat in a gunfight and not
initiating it. Similarly, most officers will not
close an eye when involved in a gunfight. If you
are reactive, should you not be creating muscle
memory to move laterally or tactically while
drawing your handgun to move to cover, or if no
cover is available, to make it difficult for the
suspect to hit you.
There are times when it will be tactically
advantageous to move in a forward direction and
engage the threat. You need to get comfortable
moving while drawing and shooting. Moving
laterally is a beneficial movement whether the
suspect is coming at you with an edged weapon
or a bullet. It is fine to say that you can hit a
target with one eye closed, but this is not what
generally occurs in a gunfight. So why are we not
training with both eyes open at least as much.
We need to learn basics but we also need to
ensure we are training law enforcement officers
for a gunfight, not only for a marksman
competition.

3. Running marathons and any long distance events
is all about aerobic power. Law enforcement
altercations are, for the majority of the time,
about anaerobic Power. Law enforcement fights
are usually over in well under one minute. Your
aerobic power will not have the chance to
become a factor in this type of altercation.
Crossfit is all about developing your anaerobic
power and goes against many of traditional
cardio and weight training routines. Their
website is great and gives you a work-out every

21

day to accomplish.
www.crossfit.com.

Check them

out at

4. Last but not least, the spinning back kick! Again
with the majority of altercations in mind, this
kick has very little relevance. If you are going to
train to “win” a law enforcement altercation you
must keep it simple! Forward motion arm and leg
strikes are what we need to concentrate on. The
key to training to “win” is to be able to strike and
move while you strike a moving target. You will
only be able to do this with confidence if you
train this way.
The types of training looked at here all have their
place. But we need to remember that they might not
be as relevant as people might think they are.
Sometimes all it takes is a little modification to the
exercise, like the bench press, to make it more
practical to a real world situation, such as one you
might find yourself involved in as a law enforcement
officer.
About the Author - Insp. Kelly Keith is a 20 year
veteran of law enforcement. He presently teaches
Physical Training, Use of Force and Tactical
Firearms to Corrections, Law and Security,
Conservation Officers and Police Cadets at the
Atlantic Police Academy. Kelly is a second degree
black belt in Jiu-Jitsu and a Certified Personal
Trainer, Strength and Conditioning Instructor, and
a Certified Sports Nutrition Specialist. He can be
reached by email at KKeith@pei.sympatico.ca

‘IN SERVICE’
LEGAL ROAD TEST ANSWERS
1. (b) False—see R. v. Spencer (at p. 4 of this
publication).
2. (b) False—see R. v. DeWolfe (at p. 5 of this
publication).
3. (a) True—see R. v. Van Binnendyk (at p. 9 of this
publication).
4. (b) False—see R. v. Makhmudov & Marinov (at p.
13 of this publication).
5. (a) True—see R. v. Rhyason
publication).

(at p. 16 of this

6. (b) False—see R. v. Panday, Yue, & Jalota (at p.
24 of this publication).

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ACROSS THE NATION
BRITISH COLUMBIA
JUST SHY GROUNDS FOR ARREST: COCAINE
ADMISSIBLE
BC’s top court upheld a conviction after cocaine was found
in a vehicle following the accused’s arrest. In R. v. Lieu,
2007 BCCA 113, the accused was convicted in British
Columbia Supreme Court on a charge of possession for the
purpose of trafficking after police seized cocaine from his
vehicle after his arrest. A police officer collected a number
of tips about a drug investigation, coordinated a team of
officers to investigate, and prepared and distributed a target
sheet respecting the accused. A member of the team
subsequently observed him engage in what was believed to
be a “dial-a-dope” deal, but could not contact the team
coordinator. He went ahead and arrested the accused
anyway and a search of the car turned up cocaine. The
accused appealed his conviction to the British Columbia
Court of Appeal submitting that the cocaine should have
been excluded as evidence because the police breached his
Charter rights. Justice Ryan, delivering the judgment for
the unanimous British Columbia Court of Appeal, upheld
the conviction. Even if the grounds for arrest held by the
arresting officer fell shy of establishing objectively
reasonable grounds, they were just short of that proof, and
the evidence ought not to have been excluded under
s.24(2).

BYE, BYE GROW OP HOUSE
An order forfeiting the home of a husband and wife
purchased for $367,000 and used to grow marihuana was
upheld. In R. v. Huynh and Ta, 2007 BCCA 235, the
accuseds pleaded guilty to producing marihuana after
police executed a search warrant at a house and found a 679
plant marihuana grow operation. The sentencing judge
found the accuseds had been running a large, moderately
sophisticated, commercial grow operation on an ongoing
basis for a considerable period of time. Even though
neither accused had a criminal record, the judge held that
forfeiture of the dwelling-house would be proportionate
to the nature and gravity of the offence and the
circumstances surrounding its commission. Further, the
sentencing judge concluded the dwelling-house was not
the principal residence of their three children prior to the
execution of the search warrant and it was therefore not
necessary to consider s.19.1(4) of the CDSA and the impact

22

forfeiture might have on the children. The house was
ordered forfeited pursuant to s. 16 of the CDSA,, each
accused was given a four-month conditional sentence, a
firearms prohibition, and a victim surcharge of $100 was
levied. The accuseds appeal of the forfeiture order to the
British Columbia Court of Appeal was dismissed. The
sentencing judge adopted the appropriate test in making
the order of forfeiture and recognized that once the Crown
had established that the property in question was offencerelated property and that the offence was committed in
relation to that property, she was required to go on to
consider the factors in s. 19.1(3) and (4) before she could
make the order of forfeiture. She was not satisfied that an
order of forfeiture would be disproportionate under
s.19.1(3), nor was she satisfied that s. 19.1(4) applied.

CRIMINAL ORGANIZATION INSTRUCTION
OFFENCE CONSTITUTIONAL
The provisions creating the instruction offence for criminal
organizations are not vague nor overbroad to make them
unconstitutional. In R. v. Terezakis, 2007 BCCA 384, the
Crown alleged that the accused was the leader of a criminal
organization involved in drug trafficking. He was charged
with several offences including instructing the commission
of an offence for a criminal organization under s. 467.13 of
the Criminal Code. At his trial in British Columbia Supreme
Court the judge ruled that s.467.13 was unconstitutional
because it was too vague and overbroad. In her view, the
meaning of the word group within the definition of
criminal organization applied to too wide an ambit of
persons, even those who may be unaware that one of the
group’s main activities was serious crime. As well, she
opined that the instructing person did not have to be a
member of the group. The instructing offence was thus
quashed. The Crown appealed to the British Columbia
Court of Appeal arguing the trial judge erred. “A vague law
prevents a citizen from realizing when he or she is entering
an area of risk for criminal sanction. It makes it difficult for
the authorities to determine if a crime has been committed
and may give too much discretion to law enforcement
officials.” Justice Mackenzie held that the definition of
criminal organization did “not include persons who are not
functionally connected to that criminal purpose or
activity, irrespective of their links to organizations with
legitimate purposes and activities that include persons in
the criminal group.” Further, “the instructing person must
know that he is part of the group and exercising the

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ACROSS THE NATION
authority of the group for the group.” Thus, the
instructing person’s knowledge they are part of the
criminal organization, “plus the fact that the instructed
offence must be connected to the criminal organization
avoids the risk of an overbroad ambit to the offence”, and
it is therefore not constitutionally flawed.

MUST LOOK AT THE WHOLE, NOT PIECES
A court must look at the totality of the circumstances
when assessing the grounds for a search warrant, not each
fact in isolation. In R. v. Nguyen and Nguyen, 2007 BCCA
264, the police applied for and were granted a search
warrant, finding a moderately sized marihuana grow
operation in the basement of a residence. The accuseds
were convicted of producing marihuana and possession for
the purpose of trafficking. They then appealed to the British
Columbia Court of Appeal. After arguing the information
to obtain the search warrant was flawed, the accuseds also
submitted that the remaining information was insufficient
to support the warrant. A defence lawyer argued that each
of the remaining pieces of information (the smell of
marihuana, condensation on the windows, and a marked
increase in hydro consumption) could be explained in a
way unrelated to a marihuana grow operation. Justice
Saunders, for the unanimous appeal court, disagreed
stating, “While there could be other explanations for each
of the observations, taken as a whole they present support
for the warrant.”

ALBERTA
FLIGHT HELPS PROVE GUILT
Fleeing a crime scene can be used as evidence of guilt. In R.
v. Callahan, 2007 ABCA 320, a police officer saw three
people running from a strip mall that had been broken into
in the early hours of the morning. One was arrested by the
officer, another was found hiding under the deck of a
nearby house, and the accused was found in a tree about
five houses north of the strip mall. No one else was found
in the area. The accused was in possession of the keys to an
unlocked rental car found in an alley near the strip mall.
The car had been rented for him by a friend and there were
items in the car that were consistent with shop-breaking
tools, including a flashlight which was identical to the type
of flashlight found in the premises broken into. The
fingerprints of all three men were also found on this car.
The accused was convicted on three counts of break-in and

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breach of recognizance. He appealed to the Alberta Court
of Appeal arguing, in part, that the trial judge erred in
considering his flight as consciousness of guilt for the
break-ins. The Court of Appeal, however, disagreed. The
trial judge considered that the accused might be fleeing and
hiding because he was in breach of his recognizance, but
she dismissed it because it was a minor offence and he was
more likely fleeing and hiding to avoid being caught for
the break-in. The appeal was dismissed and the convictions
were upheld.

SASKATCHEWAN
NO APPEAL FROM
FORFEITURE ORDER

s.117.03

FIREARMS

There is no right to appeal a forfeiture order under
s.117.03(3) of the Criminal Code, Saskatchewan’s Court of
Appeal has found. In R. v. Hudson, 2007 SKCA 82, the
accused told police the time and place where he proposed
to demonstrate the use of an unregistered shotgun. The
police attended, seized the shotgun under s.117.03(1) and
took it before a Provincial Court judge. The judge ordered
the gun forfeited, but the accused appealed the forfeiture
order to the Saskatchewan Court of Queen’s Bench, further
alleging s.117.03 was unconstitutional. The Queen’s Bench
judge ruled that she had no jurisdiction to entertain an
appeal from the forfeiture order and suggested an
application for declaration under civil action procedures be
pursued in relation to the Charter issue. This decision was
further appealed to the Saskatchewan Court of Appeal. In
dismissing the appeal, Chief Justice Klebuc noted that
“appeal courts are solely creatures of statute and have no
right to create appeals.” In this case, neither s.117.03 nor
s.839 of the Criminal Code provided the right of appeal
from any order made pursuant to it. Nor did a breach of
the Charter create a right of appeal because it is not an
independent source of appellate jurisdiction. The appeal
court, however, did not decide whether the civil application
respecting the Charter issues was available or appropriate.

MANITOBA
TIME SERVED CANNOT FORM PART OF YCJA
DISPOSITION
The Manitoba Court of Appeal has held that a Youth Court
cannot make pre-sentence custody part of the youth’s

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23

ACROSS THE NATION
formal sentence. In R. v. T.(G.A.), 2007 MBCA 88, the
young person plead guilty to several charges after spending
106 days in custody. The sentencing judge included 90
days of the time served as part of his disposition along with
a one year probation order. The Crown appealed to
Manitoba’s top court arguing the sentence was illegal
because a youth sentence comes into force on the date it
is ordered or a later date (s.42(12) Youth Criminal Justice
Act (YCJA)). The Manitoba Court of Appeal agreed,
stating that a court cannot backdate a sentence under the
YCJA. The Youth Court can, however, take into
consideration time served by a youth, which will mitigate
and reduce the sentence on sentencing day, perhaps even
eliminating any need for additional custody.

PRESENCE IN BUNKER PROVES INVOLVEMENT
Be careful where you brush your teeth. In R. v. Johnson,
2007 MBCA 14, police found a very large and
sophisticated hydroponic grow operation consisting of
eight railway cars buried side-by-side underground, with
doorways interconnecting them all. There was a farm
house on the property and some of the buried units were
also used as living quarters. The accused wasn’t around
when police raided the operation, but they found some
evidence he was at the farmhouse, including personal
effects in one of the bedrooms, a receipt showing he
bought a reverse osmosis machine that was used in the
grow-op, and his fingerprint was on a stereo cabinet. In the
bunker, police seized a rifle that belonged to him and a
toothbrush with his DNA. He was convicted of several drug
offences and sentenced to four years in prison. He argued
in the Manitoba Court of Appeal that the judge’s verdict
was unreasonable because the circumstantial evidence
against him was insufficient to establish, beyond a
reasonable doubt, that he was a party to the grow-op. The
Court, however, disagreed. Justice Huband found that
once the accused’s presence was confirmed in the bunker,
a place intended only for those involved in the illicit
operation, his involvement in the criminal activity was
confirmed. The evidence was inconsistent with any other
rational conclusion. The accused’s appeal was dismissed.

ONTARIO
BAIL IS NOT JAIL
A five member panel of Ontario’s highest court has ruled
that bail, even pre-trial house arrest, cannot form part of a

24

mandatory minimum sentence. In R. v. Panday, Yue, and
Jalota, 2007 ONCA 598, the accuseds were convicted of
various serious criminal offences, including ones involving
a firearm that have minimum mandatory sentences of four
years. While awaiting their trial, they all spent more than
30 months each on strict bail. The sentencing judge gave
partial custody credit for their time spent on strict bail
(approximately one-for-five), considered it punishment
of imprisonment, and made it form part of the minimum
four year sentence. The Crown appealed and the Ontario
Court of Appeal overturned the sentencing judge’s ruling.
Strict bail has a punitive aspect but it is not the equivalent
of actual incarceration, said Justice MacPherson for the
three judge majority. Thus, a sentencing judge does not
have the discretion to consider time spent under presentence bail as the equivalent of actual custody and use it
as credit towards calculating the mandatory minimum. The
two dissenting judges, on the other hand, concluded that
“where a trial judge is satisfied that time spent under strict
conditions of pre-sentence bail is, in substance, the
equivalent of a period of actual custody, the trial judge
does have the discretion to give some credit for that time
towards the calculation of the mandatory minimum
sentence.”

GUN ADMITTED
ARBITRARY

EVEN

IF

DETENTION

The Ontario Court of Appeal did not exclude a gun found
by police during a street check even if they violated the
accused’s Charter rights. In R. v. Grant, 2007 ONCA 26,
the accused was convicted of possessing a firearm while
prohibited and breach of probation. He had been stopped
by police in a high crime neighbourhood where the police
had been requested to attend by the community and the
officer knew him, knew that he did not reside in the area,
and knew about his prior criminal activity. The officer
initially observed him with a woman, a known prostitute
and crack user, and also observed the accused acting
suspiciously. He was “blading”, a police term for
attempting to conceal a weapon. The officer asked the
accused to walk to the police car for a C.P.I.C. check, at
which point the officer noticed a bulge in the left side of
the accused’s pants. He was searched and found to be in
possession of a sawed off shotgun. The accused appealed to
the Ontario Court of appeal arguing he was unlawfully
detained and searched, that his rights under the Charter
were infringed, and that the evidence gathered should have
been excluded under s.24(2) of the Charter. The Ontario

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ACROSS THE NATION
Court of Appeal concluded that even if the accused was
arbitrary detained, the evidence was admissible. The
detention was quite brief, the accused had a reduced
expectation of privacy in a public area compared to his
home, and questioning was minimally intrusive. And even
though the police had prior knowledge of and dealings
with the accused, they did not act in bad faith. Further, the
Crown’s case depended entirely on the gun. “The police did
not grossly overstep the bounds of legitimate questioning,
acted in good faith, used no force, and were patrolling one
of Toronto’s high-crime areas,” said the Court. “The repute
of the justice system would suffer if the evidence were
excluded.”

NEW BRUNSWICK
OWNER’S
PERMISSION
NEEDED
BORROW GUN: THEFT MADE OUT

TO

A locked gun is notice that it was not to be borrowed
without its owner’s permission. In R. v. Charters, 2007
NBCA 66, the accused was charged with several offences,
including break and enter after he went into his parents’
home and used a hacksaw to cut the chain on his father’s
Winchester rifle and take it. He was 29 years old, had not
lived at home for about a year and did not have permission
to go into the house that day or take the gun, but had
often before used the gun during hunting season. At his
trial he was acquitted of the break and enter and of the
included offence of theft. The judge found a reasonable
doubt about the accused’s mens rea on the break and enter
charge and theft did not apply because he did not take the
gun—or fraudulently and without colour of right convert
the gun to his own use—with intent to deprive his father
temporarily of it. The Crown appealed to the New
Brunswick Court of Appeal arguing the trial judge erred on
the included offence of theft. The acquittal was overturned
and a conviction of theft entered. The actus reus had been
proven—the accused admitted to taking the gun without
his father’s permission. As for the mens rea, the accused did
not assert a colour of right defence. Even if he had, there
was no evidence he honestly believe that he had the right
to cut the chain and remove the gun without his father’s
permission. Colour of right might have been a plausible
defence for entering the home, however, it was not a
defence for cutting a chain to remove a gun from a locked
rack—which signaled notice to all that it was not to be
borrowed without the key holder’s permission.

Volume 7 Issue 5
September/October 2007

LEGALLY SPEAKING:

Colour of Right

“The term "colour of right" generally,
although not exclusively refers to a
situation where there is an assertion of a
proprietary or possessory right to the thing
which is the subject matter of the alleged
theft. One who is honestly asserting what he believes to
be an honest claim cannot be said to act "without colour of
right", even though it may be unfounded in law or in
fact. The term "colour of right" is also used to denote an
honest belief in a state of facts which, if it actually existed
would at law justify or excuse the act done. The term when
used in the latter sense is merely a particular application of
the doctrine of mistake of fact.” — Ontario Court of Appeal
Justice Martin, R. v. DeMarco,
DeMarco, (1973) 13 C.C.C. (2d) 369
(Ont.C.A.), references omitted.

YUKON
STAY NOT APPROPRIATE IN DESTROYED
VIDEO
A new trial was ordered after a judge ordered a stay in a case
where a police officer destroyed a VICS recording (video in
car system) of an encounter with the accused. In R. v.
Buyck, 2007 YKCA 11, the accused was charged with
assaulting a peace officer, resisting arrest, assault with a
weapon, and escaping lawful custody after a routine check.
A police officer attempted to arrest the accused after
stopping him in his vehicle, detecting a strong odour of
marihuana and seeing a marihuana stub in the ashtray. As
attempts to place handcuffs on the accused were made, he
picked up a shovel in the box of his pickup, swung it at the
officer, and then drove off, only to turn himself in the
following day. About three months later the officer again
stopped the accused, who was breaching his recognizance.
The accused apparently apologized to the officer for his
earlier behaviour but no notes were taken. The incident was
recorded on an in car video system. Unfortunately, the
officer did not connect the two incidents and the video was
recorded over as per police policy. At his trial, the accused
argued that the destruction of the video from the second
encounter violated his right to disclosure and his ability to

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25

make full answer and defence was affected. The judge
found the officer’s failure to preserve the video was
“unacceptable and inexcusably negligent”, violated the
accused’s right to full disclosure, and did irreparable
prejudice to the integrity of the judicial system. He ordered
a stay of proceedings which effectively ended the
prosecution. The Crown’s appeal to the Yukon Court of
Appeal was allowed and a new trial was ordered. A judicial
stay of proceedings will only be granted in the rarest of
cases, where a stay is the only appropriate remedy. First,
allowing the prosecution to continue in this case would
not perpetuate or aggravate the police officer’s conduct.
Nor did ending the prosecution outweigh society’s interest
in getting a verdict on the merits of the case. Here, a stay
was not an appropriate remedy for the breach of the
accused’s right to full disclosure ruled the Yukon Court of
Appeal.

SAFETY SEARCH INCIDENT TO
TRAFFIC STOP REASONABLE
R. v. Thibodeau, 2007 BCCA 489
A police officer saw the accused’s
vehicle driving on the wrong side of the
road late at night. Eventually, the car
veered back into its own lane and the
officer sopped it and spoke to the accused, the
driver. The officer asked the accused to produce
her driver’s license and registration. She produced
the registration, but was unable to produce her
driver’s license after she looked in her wallet for
some extended time. According to the officer, the
accused appeared more nervous than most people
who are simply being stopped for a Motor Vehicle
Act infraction. She was wearing a fanny pack around
her waist but avoided looking there for some time.
The accused turned her body away from the officer
at which point he could no longer see her hands. This
made him nervous and very concerned for his safety;
he wondered whether she might be looking for a
weapon. The accused handed him her driver's
licence, but kept herself turned away so that the
officer could not see her hands. He told her that he
wanted to see the bag and her hands. After she
said, "I don't think I have to do that", the officer
responded, "I need to see your hands and your bag.
I am concerned about what's in the bag." She then
passed the bag towards him. He reached into the
vehicle window and took control of the bag. The
zipper on the smaller of two zippered pouches on the

26

bag was open and the officer could plainly see a small
baggie of crystal methamphetamine. The accused
was arrested for possession of a controlled
substance, escorted to the police vehicle, read her
rights under s. 10 of the Charter, and given the
police warning that she did not have to say anything.
The vehicle was searched as an incident to lawful
arrest and a yellow backpack on the backseat was
searched; a larger quantity of drugs, a scale, cell
phones and notebooks was found. The accused was
then told she was under arrest for possession for
the purpose of trafficking and again informed her of
her rights.
During a voir dire in British Columbia Supreme Court
the trial judge admitted the methamphetamine and
drug paraphernalia. The trial judge found the
accused’s initial detention was not arbitrary because
the officer had witnessed an infraction of the Motor
Vehicle Act. The search of the accused’s fanny pack
was not a fishing expedition for evidence; the
officer was looking for weapons, not drugs. Nor was
the search unreasonable. The officer was justified
in concluding, objectively, that the search was
reasonably necessary to confirm that the accused
was not looking for a weapon in her fanny pack. In
the judge’s view (1) the accused seemed more
nervous than the circumstances, in the officer’s
opinion, would warrant, (2) she had turned her body
away from him, (3) she had looked in her wallet for
one or two minutes before starting to look in her
fanny pack for her driver's licence, and (4) the
officer could not see her hands and what she was
doing with the fanny pack. As for the search of the
backpack in the vehicle, it was proper as an incident
to arrest. The accused was convicted.
The accused appealed to the British Columbia Court
of Appeal arguing the trial judge erred in failing to
consider the totality of the circumstances when the
officer took the fanny pack. First, she argued that
once she made her hands visible and gave him the
fanny pack there was no need to search it because
he would have no longer had a concern for his safety.
Second, there was no suspicion of criminal activity,
unlike the leading case on investigative detentions
and searches in the Supreme Court of Canada
decision R. v. Mann, [2004] 3 S.C.R. 59.
Justice Newbury, delivering the opinion of the
unanimous British Columbia Court of Appeal, agreed

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Volume 7 Issue 5
September/October 2007

the search was reasonable. As for the first point she
stated:
[T]he constable was concerned for his safety,
based on the four factors outlined … and ... these
constituted objective grounds for that concern.
The request to see [the accused’s] hands and
fanny pack then began a course of steps – her
bringing the fanny pack forward, making her hands
visible, the officer’s reaching and taking the fanny
pack from her – that it would be unreasonable to
try to divide such that at some point before he
looked into the fanny pack with his flashlight, the
legal situation suddenly changed, and the search
became improper. In other words, it would be
unreasonable in my view to require the officer to
have suddenly said “Never mind” once he could see
[the accused’s] hands (if indeed he could, apart
from the fanny pack). The factors listed by the
trial judge still obtained throughout the few
seconds this series of steps would have taken.
[para. 9]

On the second point, Justice Newbury upheld the
trial judge’s ruling that the officer acted reasonable
even though it was only a motor vehicle offence he
was investigating, and not a criminal one.
With respect to Mann, I am not persuaded … the
Supreme Court’s concern generally for balancing
privacy expectations with concerns for officer
safety, do not have application, or have very
diminished application where only a Motor Vehicle
Act offence is concerned. Certainly, the fact [the
officer] was dealing with this type of offence as
opposed to a murder or bank robbery is one of the
circumstances to be considered as part of the
“totality”, but the fact remains that police
officers may have valid safety concerns even
where the offence is not a crime and even where
the person detained seems polite and cooperative. [para. 10]

The search of the backpack was also valid as an
incident to arrest.
Complete case available at www.courts.gov.bc.ca

JUDGE LACKS JURISDICTION
TO ORDER RETURN OF VEHICLE
R. v. Peric, 2007 ONCA 738
The police had towed a tractor-trailer
unit to a towing compound after it
collided with a train. The accused was
the lessee, not the driver of the unit,

Volume 7 Issue 5
September/October 2007

and was charged with criminal negligence and
dangerous driving because of the vehicle’s alleged
unroadworthy condition. The tractor - trailer
remained at the towing company’s compound for over
two years until the police and/or Crown released its
control of it. In the meantime, however, the towing
company disposed of the vehicle to recover the cost
of storing it. The accused brought a pre-trial motion
before the judge at his criminal trial in the Ontario
Superior Court of Justice seeking an order under
s.490 of the Criminal Code that the Crown return
the tractor-trailer unit to him. The accused’s motion
was dismissed.
The accused appealed to the Ontario Court of
Appeal submitting that the seizure and detention of
the tractor-trailer was never authorized by any
judicial authority. He argued that the procedures
respecting the seizure and detention of property set
out in ss.489, 489.1, and 490 of the Criminal Code
were not followed. He claimed just restitution of
value of the truck-trailer unit in the amount of
$42,000. He also contended that the police were
responsible for paying any costs of storing property
they have detained for the purposes of their
investigation. The Crown argued it was not
responsible for the storage costs or for the vehicle.
The Ontario Court of Appeal dismissed the accused’s
appeal. Since the towing company had disposed of
the vehicle the judge could not order the Crown to
return it. The vehicle, whether properly seized or
not, was no longer in the hands of the Crown. The
accused’s claim for just restitution of the value of
the truck-trailer was a civil claim, over which the
judge presiding at the criminal trial had no
jurisdiction. The accused did not seek any of the
remedies that were within the judge’s authority—
there was no prejudice to the fairness of the trial
and no evidence obtained from the Crown’s
inspection of the vehicle was sought to be excluded.
The issues of civil liability could be the subject of
further litigation, but were not within the purview of
the judge at the criminal trial.
Complete case available at www.ontariocourts.on.ca

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The British Columbia Association of Chiefs of Police, the Ministry of Public Safety
and Solicitor General, and the Justice Institute of British Columbia, Police Academy
are hosting the Police Leadership 2008 Conference in Vancouver, British Columbia,
location of the 2010 Winter Olympics. This is Canada’s largest police leadership
conference. The conference is held every two years and attracts international,
national and regional speakers and delegates.

The theme for this year is:
The Future of Police Leadership
One World, One Voice, One Purpose.
The subtitle of the conference ‘One World’ recognizes the globalization
of law enforcement and crime, ‘One Voice’ recognizes the
convergence of communications and technology, And ‘One Purpose’,
to break down some of the institutional barriers and recognize law
enforcement’s primary goal of crime reduction and prevention.

28

www.10-8.ca

Volume 7 Issue 5
September/October 2007