!"#$%&'(%()&*+ ,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB IN SERVICE: 10-8 !"#$%&'!(%)*+,A PEER READ PUBLICATION A PEER READ PUBLICATION ('>49;54<<41'346C<43'E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7 !""%$ !""% * !"#$%&'()*9&(),3)*:31#&- E6);*&,)*"/,*6),")$F*G)*$6&((*#"%*H",1)%*%6)4F A newsletter devoted to operational police officers in Canada. $8'*&*"O$(# IN MEMORIAM ./# 01234# 56# 5++7# 85,9:12,;<=# (;/>?1@<:# A1/B:<# C:>>B:2# ;D# ?4:# E1F1<# G;# D1?1<<9# >4;?# =K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@:3O# PB># H12?/:2# (;/>?1@<:# $?:H41/:# Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO # # # * # # # # A:3:I@:2#*86#5++U E1F1<#G;?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# # # 01234#W6#5++U # # &(0G#Z<@:2?1 @::/# H12?# ;D# 1# <12L:# in >BIK# Goyette was killed an automobile accident while responding to an emergency call. # # &(0G#Z<@:2?1 3213R=;J/# ;/# 1# =2KL,=:1:1234# J1221/?># ;K?# leave the roadway and hit a tree. # # 01234#W6#5++U D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# ?J;#B/#M2;>>12=O Constable Coghlan-Goyette and a !"#$%&'()*=)%),*>-63)4&## student ride-along both * (;/>?1@<:# C:>>B:2# 41=# @::/# # # 01234#W6#5++U sustained severe injuries. They were transported to a local 1>>BL/:=#?;#?4:#I;21TK1=#;/<9#;/:#J::R# # # to their &(0G#Z<@:2?1 hospital where they succumbed injuries a short time @:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;O later. !""&$ !""& * (;/>?1@<:# C:>>B:2# B># >K2FBF:=# @9# 4B># Constable Coghlan-Goyette # JBD:6# J4;# 1<>;# >:2F:># 1># 1# H;?1@<:6# 1/=# ?J;# 9;K/L# =1KL4?:2># 1L:>#*+#1/=#*5O * !",?",&(*5&4)$*:&(("@&; had served with the Sûreté du # Q:@2K129#5-6#5++8 # !""!$ !""! &(0G#Z<@:2?1 Source: Officer Down Memorial Page available at www.odmp.org/canada * * !"#$%&'()*.)#"3%*?1@<:# C:>>B:26# 1# ?;?1<# ;D# *W# On January 12, 2011 35-year-old Toronto Police# Service Sergeant Ryan Russell was struck and # Q:@2K129#5-6#5++5 H;#41F:#<;>?#?4:B2##?;#LK/DB2:#;F:2#?4:# killed by a stolen snowplow while attempting to arrest its driver. The # # 0;/?2:1<#G;?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/3%,"#1D/3(( !"#$%&'()*+&,-*."/,0&1)$ attempted to stop the plow. Other shot and wounded the # # # officers A:3:I@:2#5*6#5++*# XK<9#*Y6#5++Y# suspect a short time later after locating the vehicle again. # # # &(0G#01/B?;@1 &(0G#$1>R1?34:J1/ # # !"#$%&'()*5/,1)#*>))@&(0 * # # # # Sergeant Russell had served with Toronto Metropolitan Police # # #the01234#U6#5++* XK<9#*U6#5++Y# # # by &(0G#"K/1FK? Service for 11 years. His #is survived his wife and young son. &(0G#$1>R1?34:J1/ # # # # # # !"#$%&'( )**+%&$( ,"-.( /&0"$+12( 314&5( 161+2172&( 18( 019#U6#5++Y POLICE OFFICERS MURDERED IN THE LINE OF DUTY ---9":0;9"$4<%1.1:1 # !"#$%&'()*2"'3#*!&4),"# # * !"#$%&'()*5"6#*7%83#$"# VB/=>;2#G;3'J?02@0>;2?02??AB !" 28 Disturbance Requires More Than Crowd Observing !"#$"%&'()*$+',-).&%)/010%$2)3&)!%$1040"5) Police Make Arrest 670809:$);&"%$"%8< = 6*$>?+:)@?'A&8$<)BC);-0:2)@-&%&8)D$%$'10"$2) Execution Not Arbitrary B9E$,%0#$:( FG *+C$%()*$+',-)H?8%0C0$2)!");0',?18%+",$8)BC) Officer safety Concerns Must Be More Than I+''+"%)J>$,?%0&" FK L''$8%)*%+"2+'2)D&$8).&%)M$N?0'$)@'01+)O+,0$) Good Faith Requires An Honestly Held Reasonable ;+8$)O&');&"#0,%0&" Belief FP 42 H?25$).&%)M$N?0'$2)3&)J"2&'8$)D("+10,) National ;D*L) *$+',- Library of Canada FQ Prolonged Roadside Detention Pending Warrant Police Leadership 2011 Conference 30 34 38 Generalized & Non-Specific Cataloguing in Publication Unless otherwise noted all articles are authored by Mike Novakowski, MA. The articles contained herein are provided for information purposes only and are not to be construed as legal or other professional advice. The opinions expressed herein are not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your comments or contributions to this newsletter. If you would like to be added to our electronic distribution list e-mail Mike Novakowski at mnovakowski@jibc.ca. POLICE LEADERSHIP !"#$%&'#&()&*+,$!' (!*$#'-./-01'2.-APRIL 10-13, 2011 Mark&'(#% your)"*+,-"#.///% calendars.01+% !"#$% The British Columbia 2#343.1% 5'*(673"% 8..')3"43',% Association of Chiefs '9% 513+9.% '9% :'*3)+;%of 41+% Police, the Ministry of !3,3.4#&%'9%:(7*3)%<"9+4&%",-% Public Safety and <'*3)34'#% =+,+#"*;% ",-% 41+% Solicitor General, and >(.43)+% ?,.434(4+% '9% 2#343.1% the Justice Institute of 5'*(673";%:'*3)+%8)"-+6&%"#+% British Columbia Police 1'.43,@% 5',9+#+,)+% Academy41+% are:'*3)+% hostingA+"-+#.13B% the Police CDEE% Leadership 2011 3,% F",)'(G+#;% 5'*(673"H% 013.% 3.% 5","-"I.%This *"#@+.4% Conference2#343.1% in Vancouver, British Columbia. B'*3)+% *+"-+#.13B% )',9+#+,)+% ",-% J3**% B#'G3-+% is Canada’s largest police leadership conference ",% 'BB'#4(,34&%9'#%-+*+@"4+.%4'%-3.)(..%*+"-+#.13B%4'B3).% and will provide an opportunity for delegates to B#+.+,4+-%7&%J'#*-K#+,'J,+-%.B+"$+#.H% discuss leadership topics presented by world renowned speakers. D?+:)@?'A&8$)!",02$"%+:)*$+',-)/+RC?:)*&) KG Data 333456789:7:;<:=>?8596@A:=:@9:496B /&"5)L8)B"$)@?'A&8$)M$+8&"+9:$ www.policeleadershipconference.com Main entry under title: S?"8T)U+0:)V)H+0:W)U0::);XK)M$#0$R K= In service: 10-8. -- Vol. 1, no. 1 (June 2001) Monthly *?A'$1$);&?'%)Y$+'0"58)M08$ KZ Title from caption. L''$8%0"5) BCC0,$') M$:(0"5) B") [&'$) 3-+") P= “A newsletter devoted to operational police !"#$8%05+%&'<8)U'&+2)BA0"0&") officers across British Columbia.” !"#$%%& '()$*+,%$& "'($-.& /##& /*(,0#$%& /*$& /1()'*$-& ISSN 1705-5717 = In service, 10-8 23& 45(6& !"#$%&'($%)$*+#&%,-%&#$%./0+$%*1%2,&%,3$'4,5$%.6% 7,8$& 9':/8'+%8,.& 7;& <;22'(%='*-& >'#,0$?6& @)$& /*(,0#$%& 0'"(/,"$-&)$*$,"&/*$&A*':,-$-&='*&,"='*B/(,'"&A1*A'%$%&'"#3& 5(147$8%2,&%-,(20%*2%&#$%+658%2,&%5$/1('$0%,2%/% 1. Police - British Columbia - Periodicals. 2. see back cover /"-&/*$&"'(&('&2$&0'"%(*1$-&/%&#$5/#&'*&'()$*&A*'=$%%,'"/#& 14/7$9% "#*1% )$*+#&% '$:(*'$1% /% 1&'$2+&#% /20% Police - Legal status, laws, etc. - Canada /-:,0$6& @)$& 'A,",'"%& $CA*$%%$-& /*$& "'(& "$0$%%/*,#3& ()$& 4,20*&*,2*2+%-,'%)#*4#%-$)%,--*4$'1%/'$%&'/*2$09%"#$% Cases - Periodicals. I. Justice Institute of for more information 'A,",'"%& '=& ()$& D1%(,0$& E"%(,(1($& '=& F*,(,%)& G'#1B2,/6& H#$% ./0+$%*1%2,&%;(1&%<*22$0%,2%/%4#$1&8%*&%*1%<*22$0%,2%/% British Columbia. Police Academy. II. Title: In &'()*+',% -./0I& +$#0'B$%& 3'1*& 0'BB$"(%& '"& '*& service, 10-8. III. Title: In service, ten-eight. 7*-$1&67$9=%>%?,7*4$%@--*4$' 0'"(*,21(,'"%&('&(),%&"$+%#$(($*6&E=&3'1&+'1#-&#,8$&('&2$&/--$-& ('&'1*&$#$0(*'",0&-,%(*,21(,'"&#,%(&&$JB/,#&7,8$&9':/8'+%8,&/(&& PAGE 2 B"':/8'+%8,KL,2060/ +C!!"*D'D,&'E()F&G *&#(D$"H(#' +C*I$I(#' JIBC ALUMNI J"*'!"#$%&'J(K$#$&+ COMING SOON! National Library of Canada Cataloguing in Publication Data Volume 11 Issue 1 - January/February 2011 Doing action research in your own organization. David Coghlan and Teresa Brannick. Los Angeles, Calif. ; London : SAGE, 2010. H 62 C5647 2010 WHAT’S NEW FOR POLICE IN THE LIBRARY The Justice Institute of British Columbia Library is an excellent resource for learning. Here is a list of it’s most recent acquisitions which may be of interest to police. Action research. Ernest T. Stringer. Los Angeles : Sage Publications, c2007. HV 11 S835 2007 Association management evaluation toolkit: recognizing success and identifying opportunities for improvement. James B. Pealow. Toronto: Canadian Society of Association Executives, 2007. HD 62.6 P398 2007 Combating violence & abuse of people with disabilities: a call to action. by Nancy M. Fitzsimons. Baltimore : Paul H. Brookes Pub., c2009. HV 1568 F58 2009 Competency-based training basics. William J. Rothwell and James M. Graber. Alexandria, Va. : ASTD Press, c2010. LC 1031 R684 2010 The failure of risk management: why it's broken and how to fix it. Douglas W. Hubbard. Hoboken, N.J. : Wiley, c2009. HD 61 H76 2009 Focus groups: a practical guide for applied research. Richard A. Krueger, Mary Anne Casey. Los Angeles : SAGE, c2009. H 61.28 K78 2009 Fundamentals of social research. Earl Babbie, Lucia Benaquisto. Toronto : Nelson Education, [2009], c2010. H 62 B223 2009 Gamestorming: a playbook for innovators, rulebreakers, and changemakers. Dave Gray, Sunni Brown, and James Macanufo. Beijing ; Cambridge [Mass.] : O'Reilly, 2010. HD 66 G73 2010 Learn like a leader: today's top leaders share their learning journeys. editors, Marshall Goldsmith, Beverly Kaye, Ken Shelton. Boston : Nicholas Brealey Pub., 2010. HD 30.4 L396 2010 Learning in 3D: adding a new dimension to enterprise learning and collaboration. Karl M. Kapp, Tony O'Driscoll. San Francisco, CA : Pfeiffer, c2010. HD 58.82 K37 2010 Crisis communications: a casebook approach. Kathleen Fearn-Banks. New York : Routledge, 2011. HD 59 F437 2011 Developing quality technical information: a handbook for writers and editors. Gretchen Hargis ... [et al.]. Upper Saddle River, N.J.: Prentice Hall Professional Technical Reference, c2004. T 11 D417 2004 Missing women, missing news: covering crisis in Vancouver's Downtown Eastside. David Hugill. Halifax [N.S.] : Fernwood, c2010. HQ 150 V3 H84 2010 PAGE 3 Volume 11 Issue 1 - January/February 2011 Nice teams finish last: the secret to unleashing your team's maximum potential. Brian Cole Miller. New York: American Management Association, c2010. HD 66 M543 2010 The now habit at work: perform optimally, maintain focus, and ignite motivation in yourself and others. Neil A. Fiore. Hoboken, N.J. : John Wiley & Sons, c2010. BF 637 S8 F56 2010 On the farm: Robert William Pickton and the tragic story of Vancouver's missing women. Stevie Cameron. Toronto : A.A. Knopf Canada, c2010. HV 6535 C33 P64 2010 Police use of force: a global perspective. Joseph B. Kuhns and Johannes Knutsson, editors ; foreword by David H. Bayley. Santa Barbara, Calif. : Praeger, c2010. HV 7936 F6 P65 2010 Power friending: demystifying social media to grow your business. Amber Mac. New York : Portfolio, 2010. HF 5415.1265 M316 2010 Public health in the workplace. Jamie Knight and Laura Karabulut. Toronto : Carswell, 2010. HD 7659 06 K64 2010 Social media for trainers: techniques for enhancing and extending learning. Jane Bozarth. San Francisco : Pfeiffer, c2010. LB 1044.87 B693 2010 Study smarter, not harder. Kevin Paul. North Vancouver, B.C. : International Self-Counsel Press, c2009. LB 1049 P37 2009 Surprising studies of visual awareness. Volume 2 Daniel J. Simons. Champaign, IL : VisCog Productions, c2008. 1 videodisc (DVD) : digital, col. ; 4 3/4 in. Menu-driven interface to access the demo you want; viewer instructions to experience the demos for yourself; presenter instructions to help you use the demos; scientific explanations for each demo; credits and citations for further information. A new set of demonstrations and videos on visual memory. QP 491 S977 2008 D1070 (Restricted to in-house.) Surviving the baby boomer exodus: capturing knowledge for Gen X and Gen Y employees. Ken Ball and Gina Gotsill. Boston, MA : Course Technology, c2011. HD 6280 B344 2011 Superconnect: the power of networks and the strength of weak links. Richard Koch and Greg Lockwood. Toronto : McClelland & Stewart, 2010. HM 741 K68 2010 A quality of life approach to career development. Geoffrey S. Peruniak. Toronto : University of Toronto Press, c2010. HD 6955 P477 2010 The truth about leadership: the no-fads, heart-ofthe-matter facts you need to know. James M. Kouzes, Barry Z. Posner. San Francisco, CA : Jossey-Bass, c2010. HD 57.7 K684 2010 Real leaders don't do PowerPoint: how to sell yourself and your ideas. Christopher Witt; with Dale Fetherling. New York : Crown Business, c2009. PN 4129.15 W58 2009 The why of work: how great leaders build abundant organizations that win. Dave Ulrich, Wendy Ulrich. New York : McGraw-Hill, c2010. HD 57.7 U458 2010 PAGE 4 Volume 11 Issue 1 - January/February 2011 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Incidental or Collateral Crime 1;%<=>*1? POLICE MAY SEARCH VEHICLE FOR IDENTIFYING DOCUMENTS R. v. Burachenski, 2010 BCCA 159 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “Section 21(2) extends liability for crime in Two uniformed motorcycle officers two respects. The first has to do with the conducting speed enforcement '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ persons whose participation in an flagged down the accused for doing %9+ enterprise /$'8$+may #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 80 km/h in a 50 km/h unlawful attract liability. approximately zone. He did not immediately stop. And the second relates to the offence for @0,"$:9#56+3'$+5$A0 6&)*#-1+#$-+)"#$%&'()#'%*<+ Instead, he pulled over some four to five car lengths which participants in an unlawful down the road. Both officers (##$80/#$BB$=3)$6" associated this criminal enterprise may be held liable. behaviour with someone who was unlicensed or 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ The persons to whom s. 21(2) extends liability are those whose prohibited. The accused had no driver’s licence in #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ C?$D11$3,,980'65$3=$ participation in the offence actually committed would not be his possession, no other identification, and said he was not the registered owner of the >"#'$6"#$*#"+,1# vehicle. An captured by s. 21(1). These persons have participated in a prior %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ officer looked at the accused to see if he had a bulge unlawful enterprise with others and either knew or, in most cases #$)#+ /'44+other)99%&1+ #$)#+ in his-.'1-*8-+ pocket which%9+ might be a wallet, there was $ but F0G$!)9# at least,#$-+ should)"#$%&'()#'%*+ have known that one 7%"6$#+ (or more) of the none. Concerned that the information provided was participants in the original enterprise would likely commit the %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# inaccurate, police began to check it out. The officer offence charged in pursuing their original purpose. $ believed he &-.'-/<+ could arrest the accused in order to %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ 3$-+ confirm his identification for the Motor Vehicle Act The offence to which s. 21(2) extends liability is not the original I?$D5J+'/$0$4)+*#)$6 @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ offence, but did not actually arrest him. Rather, he “unlawful purpose” to which the subsection refers. The “offence” of 89)835#$ the SUV for #$-+ identification and, upon 3=$ 4#6 s. 21(2) is a different one that a participant in the original /$'8$+ #$-+ crime, )"#$%&'('*6+ 5"16-+ 8%"41+ searched $).-+ 6&)*#-1+ opening the middle console, saw what he believed “unlawful purpose” commits in carrying out that original purpose. to be flakes of marihuana, flaps3439)$+5$0$8#)7+ of crystal )"#$%&'()#'%*<+ And so it is that we sometimes say that s. 21(2) extends liability to methamphetamine, and a container of ecstasy. '36$#'/0/#$6"#$) those engaged in one unlawful purpose to incidental or collateral 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9+7)#'79'-1+ crimes: crimes committed by any participant (in the original On finding the drugs the officer formed M"0)6#) the view that? purpose) in carrying out the original purpose that the other knew he could arrest#$-+#%#)4'#A+ the accused for offences under the %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B $ soF0G$!)9# or should have known would likely be committed in pursuing the Controlled Drugs and Substances Act told him he %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ original purpose. was being detained for drugs. A pouch of marihuana $ FAG$H015# was found and the accused was again told he was )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8#'%*+'7+ $ Under s. 21(2), the liability of a party to a common unlawful being detained for drugs. He was handcuffed. In the purpose for an incidental crime committed by another)7+ )+ N"+,"$ meantime, officer the8)3*+',# #%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ /$%4->+an)*1+ *%#+continued #%+ B?$searching participant requires proof of the party’s participation in the vehicle for identification and for more drugs, finding (98)#7#$M39)6$3 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# of the likelihood that the incidental crime will be committed. passenger side, he located a box that contained KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q Consistent with general principle, each of these essential marihuana and hashish. The total value of the drugs elements, earlier described as “agreement”, “offence” and “knowledge”, must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation.”– Ontario Court of Appeal Justice Watt in R. v. Simon 2010 ONCA 754 at paras. 40-43, references omitted. was $740 and consistent with possession for the $ F,G$R'60)+3Q purpose of trafficking. Two cell phones were also found; they rang 30 times over the next 8 hours with $ F4G$S9#A#,? callers requesting meetings. There was also a text message on one of the cell phones belonging to the T?$!"#$+'=3)706+3' accused which was consistent with drug trafficking. www.10-8.ca '-$)"+&.$.%&'%+/012"& 5?CLFAG$3=$6"#$M" At trial in British Columbia Provincial Court, the 3$.4'*5"&-"$/&60$42$7& accused testified that the drugs were not'36+,#$ his and that 3=$ 6"#+) #V#),+5#$6"#7?$ 81+9"0"+8" PAGE 5 1:;<=>?&@ABC&DEEF $ F0G$!)9# $ FAG$H015# Volume 11 Issue 1 - January/February 2011 he did not know they were in the car. He said the car had belonged to his girlfriend, but she gave it to him because he needed it for work. He said other people used the car and suggested that they left the drugs and one of the cell phones in it. The trial judge found that the accused had been de facto arrested for an investigation into drug possession, the search lawful, and no s. 8 Charter breaches. The judge concluded the evidence did not raise a reasonable doubt and the accused was convicted on six counts of possessing a controlled substance for the purpose of trafficking. He was sentenced to nine months to be served conditionally in the community. The Arrest The officer subjectively believed that he had grounds to arrest, which were objectively reasonable since the accused produced no identification and had apparently committed an offence. “Police officers are entitled to arrest traffic offenders when it is necessary to establish their identity,” said Justice Bennett speaking for the Court. The officer began looking in the vehicle for identification documents and asked his partner to use the police radio to try to confirm the accused’s identity. The Search The accused then appealed to the British Columbia As for the search, the court noted that “the law is Court of Appeal arguing, in part, that his s. 8 Charter clear that the police are entitled to search a vehicle rights were violated in relation to the search that for identifying documentation when it is not exposed the drugs in his possession. He submitted produced by a driver who is being investigated for that the entire search was unlawful because the an offence.” Once the drugs were found the officer police decided to arrest him and take him to jail was still looking for identification papers immediately upon stopping and also for any further drugs. Since the “The law is clear that the him. He contended that the accused had been de facto arrested for an police should have patted police are entitled to investigation into the possession of drugs him down to see if he had search a vehicle for the continued search of the vehicle for identification, and if not, evidence was a search incidental to arrest. identifying checked via the police radio The search was lawful, there was no whether the name he documentation when it is e v i d e n c e t h a t i t w a s c o n d u c t e d p r ov i d e d wa s a c c u ra t e . not produced by a driver unreasonably, and there was no violation of Further, he suggested the police had no basis for who is being investigated s. 8. Whether the accused was properly given his right to counsel under s. 10(b) was searching his car and when for an offence.” not before the Court. The accused’s appeal they found the drugs in the was dismissed. console of the vehicle, they should have stopped searching, and called in a Complete case available at www.courts.gov.bc.ca police drug dog to locate the drugs. In an oral judgment the Court of Appeal disagreed. The accused was travelling at 80 km/h per hour in a 50 km/h per hour zone and the police were therefore entitled to stop him for a traffic violation. The accused said that he did not have any identification documents in his possession and the vehicle he was driving did not belong to him. An officer looked for a bulge in his pocket which might be a wallet but could not see one. ONE HAND v. THE OTHER On the one hand “trial judges are presumed to know the law with which they work day in and day out.” (R. v. Burns, [1994] 1 S.C.R. 656, see also R. v. McFadzen, 2011 ABCA 53 (sentencing), R. v. OseiAgyemang, 2011 ABCA 2 (parole ineligibility), R. v. Settle, 2010 BCCA 426 (mens rea for offence)). On the other hand the Newfoundland Court of Appeal recently emphasized that the Crown and defence counsel have a “responsibility in providing relevant case law to assist the court” (R. v. Adams, 2011 NLCA 3). PAGE 6 Volume 11 Issue 1 - January/February 2011 DE FACTO ARREST NOT JUSTIFIED: EVIDENCE EXCLUDED R. v. Orr, 2010 BCCA 513 A Marihuana Enforcement Team executed an electricity theft search warrant at a dwelling house. Although the residence was under surveillance for about two hours before the warrant was executed no one was seen to enter or leave the premises. One of the officers pounded on the front door and yelled, "Police. Search warrant", but there was no response. After waiting a few minutes he yelled the same commands, but again there was no response. As police used a ram on the front door a male voice from inside said something like "I'm coming". When the accused opened the door he was directed to show his hands, step out of the house, and was guided to the floor of the front porch. He was casually dressed and barefoot. He was told he was being detained for theft of hydro and that police had a warrant to search the house. A cursory search for weapons was conducted. He was asked to stand up, handcuffed, and a copy of the search warrant was placed in his shirt pocket. Other members of the team entered and cleared the residence finding a 358 plant marihuana grow operation. At this point the accused was arrested for production of marihuana, read his rights, and given the police warning. He was charged with producing marihuana and possession for the purpose of trafficking. At trial in British Columbia Provincial Court the officer testified he detained the accused for officer safety purposes - he did not know if there were other people in the residence and he did know what, if any, risks he faced. Another officer testified that everyone who answered the door would be arrested and handcuffed. The trial judge held that the takedown and handcuffing of the accused before the discovery of any illegal activity in the residence was not merely an investigative detention but rather a de facto arrest. No electrical by-pass had been found inside the residence and there was no evidence of hydro theft at the time of the de facto arrest. Nor had a marihuana grow operation been found. There were no suspects and the accused was a stranger to police with nothing to tie him to the suspected hydro theft. The judge concluded that the arresting officer did not subjectively have the requisite grounds to arrest the accused nor were the objective grounds present. The de facto arrest was unlawful and arbitrary and breached s. 9 of the Charter. The second arrest for production of marihuana was also arbitrary since the accused was only arrested because he was in the residence and opened the door. There was nothing to link him to the residence other than his presence and nothing to link him to the marihuana grow operation. Although the offence was serious and there is always some concern about the safety of police officers in this type of investigation, the judge found the Charter breach was also serious, the police had not acted in good faith, and the balance in this case tipped in favour of the rights of the individual rather than the societal interest in detecting and punishing crime. Evidence was excluded under s. 24(2) and the accused was acquitted. The Crown appealed the acquittals to the British Columbia Court of Appeal arguing the trial judge erred in finding the accused arbitrarily detained and that the evidence should not have been excluded. In the Crown’s view the police briefly detained the accused at first, which was followed by an arrest for marihuana production. But Justice Low, speaking for the Court, disagreed. He concluded that the conduct of the arresting officers went well beyond a mere pat-down search attendant to an investigative detention which supported the trial judge’s opinion that the accused was under de facto arrest. As for the second arrest, the trial judge did not err in finding it too arbitrary. There must be some connection between the person being arrested and the crime under investigation: PAGE 7 When the ultimate arrest was effected, the arresting officer had conducted no investigation as to the use of the house generally, apart from being informed of the presence of a grow operation, or as to the connection of the [accused] to the residence, apart from the fact that he had answered the door dressed casually and barefoot. In my opinion, something more was needed to connect the presence of the Volume 11 Issue 1 - January/February 2011 [accused] in the house to the illegal drug activity. It would not have taken much more but the arresting officer chose to continue the investigation with the [accused] under arrest, rather than in less intrusive and restrictive investigative detention. In so doing, he effected an unlawful arrest in breach of the [accused’s] rights under s. 9 of the Charter. [para. 14] several offences. As for the trial judge’s s. 24(2) analysis, the Court of Appeal was satisfied she weighed the appropriate factors in excluding the evidence. The Crown’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca ARREST DOES NOT REQUIRE PRIMA FACIE CASE FOR CONVICTION R. v. Ash, 2010 BCCA 470 The accused was stopped by police for failing to wear a seat-belt, an offence under British Columbia’s Motor Vehicle Act. The officer noticed a jar in plain view on the front seat console which contained a liquid he believed was “hash oil” (cannabis resin oil). He continued dealing with the seat-belt infraction. When he returned to the vehicle the container was gone. The officer then asked the accused to exit the vehicle whereupon he was arrested for possessing a controlled substance. A search of the vehicle incidental to the arrest uncovered drugs, a knife, bear spray, a baton and a significant amount of money. He was charged with drug and weapons offences. The accused then appealed, submitting that the arrest was not reasonable. In his view, the officer did not have a subjective belief that he was in possession of the hash oil. Further, he contended that the trial judge failed to apply the proper test for assessing the grounds of arrest by conflating the subjective belief of the police officer with the required objective standard. Justice Chiasson, speaking for the unanimous Court of Appeal, first noted that s. 495(1)(a) of the Criminal Code “authorizes a peace officer to arrest without a warrant when on reasonable grounds he or she believes an indictable offence has been committed or is about to be committed.” This provision requires the arresting officer to subjectively have reasonable grounds upon which to base the arrest. As well, those grounds must be justifiable from an objective point of view - a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. The police are not, however, required to demonstrate anything more than reasonable grounds. A prima facie case for conviction is not needed before making an arrest. In this case, it was apparent to the officer that the accused was the owner and driver of the vehicle and the hash oil container was in the front seat console beside him. The officer testified that he found the accused in possession of the hash oil. It was clear that the officer reasonably believed the accused was in possession of the drug. “The issue is not whether the Crown would be able to prove possession,” said Justice Chiasson, “but whether the officer had reasonable and probable grounds for believing he At trial in British Columbia Supreme Court the did so.” The Court of Appeal held that the officer’s accused challenged the admissibility of the items subjective belief was also objectively reasonable. found in his car on the basis that there were no The Court rejected the accused’s assertion that the reasonable grounds for the reasonableness of the officer’s arrest and the search violated his rights under s. “The issue is not whether the Crown belief was to be assessed from the point of view of a neutral arbiter 8 of the Charter. The trial would be able to prove possession, free of the predilections and biases judge concluded that the but whether the officer had of police. Instead, the proper arrest was lawful and approach is to view the grounds admitted the evidence. The reasonable and probable grounds from the point of view of a accused was convicted of for believing he did so.” reasonable police officer in the PAGE 8 Volume 11 Issue 1 - January/February 2011 arresting officer’s shoes, including a consideration of their experience and training. The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca MOTORIST NOT ARBITRARILY DETAINED IF GROUNDS CAN BE CLEARLY EXPRESSED R. v. Adams, 2011 NLCA 3 As drinking establishments were closing at about 3:30 a.m on a Saturday a police officer drove onto the parking lot of a shopping plaza which contained restaurants and a bar. He saw the accused’s vehicle pull out of a parking stall near the bar, drive slowly along the parking lot, and turn onto the street. There was no traffic coming but the vehicle turned very slowly and awkwardly. Although no offences were committed under Newfoundland’s Highway Traffic Act, given the hour of the night, the proximity to the bar, the officer’s experience, and observing a slow and awkward turn, the officer decided to pull the vehicle over to “check the situation out." After the stop the accused subsequently provided breathalyzer readings of 110mg% and 130mg%. At trial in Newfoundland Provincial Court the judge found the stop was not arbitrary. He held the police officer “had a good reason for wanting to see what was going on.” There was no s. 9 Charter breach, the breathalyzer evidence was admitted, and the accused was convicted of operating a motor vehicle while his blood alcohol content exceeded 80 mg%. On appeal to the Newfoundland Supreme Court the breathalyzer evidence was excluded, the accused’s conviction was set aside, and an acquittal was entered. The appeal judge concluded the accused’s detention was based on nothing more than a hunch and was therefore arbitrary, breaching s. 9 of the Charter. As well, relying on R. v. Mann, the appeal judge ruled that there was no nexus between the accused’s driving and a criminal offence. The Crown then appealed to the Newfoundland Court of Appeal. A breach of s. 9 of the Charter requires a detention to be “arbitrary”. The threshold for stopping a motorist, however, is relatively low and a motorist will not be arbitrarily detained if the officer has reasonable grounds that can be clearly expressed for stopping a particular, as opposed to any, vehicle. It must also be recognized that stopping motorists occurs in a different context than the investigative detention doctrine outlined in Mann, where the Supreme Court of Canada was dealing with police stopping an individual walking down a street, not driving a car. Justice Welsh, speaking for the New Brunswick Court of Appeal stated: [W]hen balancing the interests between the individual's right to privacy and legitimate police functions, the factors to be considered are different when the detention involves an individual walking down the street in an area where the police are searching for the perpetrator of an offence from when the driver of a motor vehicle is stopped for highway safety reasons such as impairment by alcohol. The concept of the nexus described in Mann has no practical application to the stopping and detention of a motorist as occurred in this case. [para. 16] Other Courts have recognized a distinction between a pedestrian and a motorist when balancing the competing interests of individual liberties and legitimate police functions, such as: • • Motorists have a lower expectation of privacy in their vehicles than they do in their home; Driving is highly regulated. Drivers know that they may be stopped for reasons pertaining to highway safety—as in a drinking-and-driving roadblock; “Given the social policy considerations associated with drinking and driving offences ... the courts have adopted a relatively low threshold for determining what constitutes reasonable grounds for stopping a motorist for highway safety reasons such as impairment by alcohol.” PAGE 9 Volume 11 Issue 1 - January/February 2011 • There is minimal intrusion on the individual motorist's Charter rights. The detention is generally brief and of minimal inconvenience, unless incriminating evidence turns up; The goal of roadside screening is to screen drivers at the road stop, not later at the scene of an accident; There is a broader societal concern in dealing with the carnage caused by those who commit offences involving drinking and driving. Drunk drivers pose a menace; and Driver’s exceeding the permissible blood alcohol content present a continuing danger to themselves, passengers in the vehicle and other highway users. circumstances of this case, it cannot be said that the police officer stopped [the accused’s] vehicle arbitrarily. He testified as to objective criteria he used to establish reasonable grounds for stopping that particular vehicle. While the amount of information was minimal, it was sufficient to satisfy the requirements of section 9 of the Charter.” In this case the appeal judge erred by relying on the decision in Mann and injecting into his analysis the requirement for a nexus between the individual to be detained and a recent or on-going criminal offence. This factor had no practical application in the circumstances. The appeal judge also failed to consider the relevant case law regarding the detention of motor vehicles. Editor’s note: The Newfoundland Court of Appeal • • • Here, the officer saw the accused execute a turn that was “very slow and awkward, unusual.” The bar was closing, the accused had been parked in the vicinity of the bar, and it was the officer’s experience that it was not uncommon to encounter individuals "who've had too much to drink that are out driving." Although the police officer would not have had reasonable grounds for stopping the accused’s vehicle without seeing the unusual turn, the “confluence of all these factors” constituted reasonable grounds, clearly expressed, for stopping the accused’s vehicle as distinct from other vehicles in the vicinity. “Given the social policy considerations associated with drinking and driving offences, particularly the dangers posed to users of the highways, the difficulties inherent in identifying motorists who have exceeded the permissible blood alcohol content, and the minimal intrusion on privacy rights, the courts have adopted a relatively low threshold for determining what constitutes reasonable grounds for stopping a motorist for highway safety reasons such as impairment by alcohol,” said Justice Welsh. “In the particular The Court of Appeal found there was no basis on which to exclude the breathalyzer readings, the over 80mg% offence had been proven beyond a reasonable doubt, and the accused was guilty. The Crown’s appeal was allowed, the acquittal set aside, and the conviction restored. Complete case available at www.canlii.org found the stop in this case was not arbitrary. However, even if it was it would likely have been saved as a reasonable limit under s. 1 of the Charter. Vehicle stops which are random, such as those authorized by provincial motor vehicle legislation, have been upheld as reasonably justified under s.1 of the Charter so long as they are conducted for a purpose related to highway safety or driving a car, such as checking driver’s licences, insurance and registration, sobriety of the driver, and/or the mechanical fitness of the vehicle (see for example R. v. Ladoucer [1990] 1 S.C.R. 1257 (S.C.C.)). INFORMATION MORE THAN MERE HUNCH OR EDUCATED GUESS: ARREST LAWFUL R. v. McKenzie, 2011 ONCA 42 After receiving information from a reliable confidential informer that s o m e o n e n a m e d “ D av e ” wa s involved in gun smuggling and gun trafficking, the police launched a short investigation but could not confirm the information in the tip. Several months later the police received a second tip from another confidential informer of unknown reliability about “Dave”. This tip had more information - Dave was entrenched in the gun subculture in the region; he was involved in smuggling firearms from the United States and trafficking them at the rate of 30 to 40 PAGE 10 Volume 11 Issue 1 - January/February 2011 firearms per month; and one of the guns had been used in a fatal shooting. An address for “Dave” was provided, which was the same as the accused. An intensive investigation was then conducted by the Provincial Weapons Enforcement Unit. arrested at gunpoint. His vehicle was searched and police found a small amount of drugs in the car and various firearms (a fully automatic machine pistol with three over-capacity magazines and a silencer, two pistols, and a revolver) in the vehicle’s door panels. Police obtained dial number recorder (DNR) warrants for the accused’s various telephones and At trial in the Ontario Superior Court of Justice the engaged in intermittent physical surveillance of him. accused was convicted on eight counts (numerous The information gathered from the DNR warrants firearms offences and one count of illegal possession showed a significant volume of telephone traffic, of drugs). The judge found that the police officers which was analyzed and demonstrated the accused had reasonable grounds to arrest the accused and had frequent contact with a number of persons who the search that followed did not breach his Charter had been charged with and, in some cases, rights. Even if there was a Charter violation, the convicted of firearms offences. The information also judge would not have excluded the evidence under showed that the accused was in frequent contact s. 24(2). Taking into account pre-sentence custody, a with a man named Roger Peddie, who lived in the sentence of six years imprisonment was imposed. region and frequently stayed with his girlfriend The accused then challenged his conviction to the residing in Kitchener. The police also obtained a Ontario Court of Appeal. tracking warrant for the accused’s automobile. The Arrest and Search Finally, the police obtained information from a third confidential informer that the accused would be The Court of Appeal dismissed the accused’s travelling to Kitchener to pick up firearms from arguments. Not only did the police have the “Roger” in a day or two. The police were able to requisite subjective belief that the accused was in verify that the accused had travelled to Kitchener unlawful possession of firearms, the requisite and also confirmed that Roger Peddie crossed the objective grounds were also established on the Canada-U.S. border with a woman who was not his totality of the evidence: girlfriend. Meanwhile the police observed the accused meet with two men, one By the time of the arrest, the of whom he had been in frequent “The careful and lengthy police had information from three independent sources that telephone contact with and had a investigation provided the [accused] was engaged in record for a firearms offence. The information that passed the unlawful trafficking in firearms. other man appeared to be As predicted by the second carrying a concealed firearm. In threshold from a mere hunch or informer, the [accused] was addition, the woman who had educated guess to reasonable shown to be involved in the gun crossed the border with Peddie subculture in the Durham and probable grounds.” returned alone to Canada. A Region. The activities in early cursory check of the automobile June 2007 suggested that the at the border did not result in any firearms or other person believed to be the source of the contraband being found. The next day the accused’s [accused’s] firearms was travelling to the United vehicle was tracked to the area of Peddie’s States after meeting with the [accused]. Then, girlfriend’s home in Kitchener. Peddie’s companion returned alone to Canada the day before the [accused] went to Peddie’s Believing they had reasonable grounds that the girlfriend’s neighbourhood. Finally, the counteraccused was now in unlawful possession of firearms, surveillance observed by the police confirmed they followed his vehicle. He engaged in counterthat the [accused] was probably in possession of contraband shortly after going to a residence surveillance. He made sudden lane changes, associated with Peddie in Kitchener. unexpected turns, and took a circuitous route. He was stopped in a “high-risk takedown” and was PAGE 11 Volume 11 Issue 1 - January/February 2011 RANDOM TEST SHOPPING IS NOT ENTRAPMENT This constellation of objectively discernable facts showed that the police had reasonable grounds to believe that the [accused] was in unlawful possession of firearms when he was arrested and his vehicle searched. The careful and lengthy investigation provided information that passed the threshold from a mere hunch or educated guess to reasonable and probable grounds. [paras. 7-8] R. v. Clothier, 2011 ONCA 27 Evidence Admissibility The Court of Appeal also agreed that even if there was a violation of the accused’s Charter rights the evidence should not be excluded under s. 24(2). “As to the seriousness of the Charter-infringing conduct,” said the Court, “if the police fell short of reasonable grounds, it was only to a minor degree. Any violation of the [accused’s] rights tends to fall on the less serious end of the continuum... The good faith of the police is demonstrated by the frequent resort to lawful means of investigation including judicially authorized DNR and tracking warrants. The actual arrest was conducted quickly and professionally. As to the impact on the [accused’s] protected interests, admittedly there was a significant intrusion into the [accused’s] liberty interest given his arrest in public at gunpoint. The intrusion into his privacy rights was less significant. The search of a motor vehicle on a public street is less of an intrusion into privacy interests than other intrusions, such as search of a private dwelling. Finally, as to the societal interest in an adjudication on the merits, ... the seriousness of the charged offences must not take on disproportionate significance. However, given the reliability of the evidence that was critical to the successful prosecution of these very serious offences, there was a strong societal interest in an adjudication on the merits.” Although the impact on the accused’s Charter-protected interests tended to favour exclusion, the seriousness of the Charterinfringing conduct and the societal interest in an adjudication on the merits favoured admissibility. On balance, the Court noted, the evidence was properly admitted and the accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca A convenience store had been randomly chosen for a spot compliance check from a master list of tobacco vendors. A tobacco enforcement officer went to the store with a 17-year-old test shopper. The test shopper went into the store and bought a package of cigarettes from the 19 year-old accused, a clerk working the counter. At no time did the accused ask the test shopper for age identification. After the test shopper left the store the enforcement officer entered, informed the accused that he had sold tobacco to an underage person, and issued a certificate of offence under s. 3(1) of Ontario’s Smoke Free Ontario Act, which prohibits the sale of tobacco to any person under the age of 19. At trial before a Justice of the Peace the accused argued he was entrapped. He claimed the charge against him should be stayed because the test shopping had been done without a reasonable suspicion that he, or the store, had previously sold tobacco to minors. The trial judge found there had been no entrapment and using test shoppers was an appropriate investigative technique for regulatory offences. The accused was convicted and fined $50. His appeal to the Ontario Court of Justice was dismissed. The appeal judge ruled the tobacco enforcement officer had conducted a bona fide inquiry and was entitled to do so without a reasonable suspicion. He dismissed the appeal. The accused then appealed to the Ontario Court of Appeal submitting the doctrine of entrapment, which developed in the criminal law, also applied to regulatory offences. The Crown, on the other hand, took the opposite view and contended that entrapment did not apply. Entrapment Entrapment is an aspect of the abuse of process doctrine and reflects judicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes. The doctrine of entrapment PAGE 12 Volume 11 Issue 1 - January/February 2011 seeks to balance two competing “The police should not be allowed to In this case the accused did objectives: (1) the police must not suggest that anyone randomly test the virtue of citizens have considerable leeway in the threatened him or induced by offering them an opportunity to techniques they use to him to sell cigarettes to the investigate criminal activity but test shopper. commit a crime without reasonable (2) at the same time their power suspicion that they are already to investigate should not be Smoke Free Ontario Act untrammeled. “The police engaged in criminal activity; or worse, Th e C o u r t o f A p p e a l should not be allowed to to go further and use tactics rejected the notion that a randomly test the virtue of citizens by offering them an designed to induce citizens to commit reasonable suspicion should be required for compliance opportunity to commit a crime a criminal offence.” checks under the Smoke without reasonable suspicion Free Ontario Act. Here, the Crown conceded that that they are already engaged in criminal activity; or the authorities acted without a reasonable suspicion. worse, to go further and use tactics designed to They neither reasonably suspected that the accused induce citizens to commit a criminal offence,” said or the stores in the area were engaged in illegal Justice Laskin. “To allow these investigative activity before using the test shopper. But Justice techniques would offend our notions of decency and Laskin ruled that the authorities could undertake a fair play.” When entrapment is proven the essential bona fide investigation into whether stores in the elements of the offence have been made out but a area were selling tobacco to minors without a court will stay the proceedings because fair play reasonable suspicion. would be offended and the administration of justice would be brought into disrepute. The Smoke Free Ontario Act is a regulatory statute promoting public health and safety. “It establishes a Entrapment can occur in two ways: legislative regime for controlling the display, 1. Government authorities provide a person with promotion, packaging, sale and use of tobacco, an opportunity to commit a crime without including when, how, where and to whom tobacco having a reasonable suspicion that the person can be sold,” said Justice Laskin. “The offences is already engaged in criminal activity or they under the Act are strict liability offences, which are acting in the course of a bona fide means that due diligence is a defence but investigation. An investigation will be bona negligence is not. All offences are punishable by a fide when it is directed at a geographic area fine, or, on multiple convictions, by a prohibition on where criminal activity is reasonably the sale of tobacco for up to 12 months. No one can suspected. When police have a reasonable be imprisoned for a breach of the statute.” Section suspicion that criminal activity is occurring in 3(1) prohibits the sale or supply of tobacco to a an area they are entitled to provide any person person under 19 while s. 3(2) requires vendors to in the area with the opportunity to commit the check for identification when the customer appears offence. Thus, police can lawfully act only on to be under 25. reasonable suspicion, either of an individual’s The reasonable suspicion requirement does not or an area’s criminal activity. apply to the offence of selling tobacco to a minor 2. Government authorities, though having a and government authorities can use random test reasonable suspicion or acting in the course of shopping to monitor compliance with the statute as a bona fide investigation, go beyond providing long as the random test shopping is done in good an opportunity to commit a crime by inducing faith. It cannot be done in a discriminatory way the commission of an offence. (such as targeting only stores owned by a particular ethnic group) or for an improper purpose. The twin rationales underpinning the reasonable suspicion PAGE 13 Volume 11 Issue 1 - January/February 2011 branch of the entrapment doctrine in criminal law have no relevance to a charge under the Smoke Free Ontario Act: 1. Permitting the state to offer a person an opportunity to commit a crime without a reasonable suspicion that the person is engaged in criminal activity amounts to random virtue testing and is an unjustifiable invasion of individual privacy. But this does not apply to stores selling tobacco because: (i) Stores selling tobacco operate in a regulated commercial environment. The s t o r e a n d t h e i r e m p l oye e s h ave a responsibility to the public in exercising reasonable care to ensure that selling tobacco to minors does not occur. People selling tobacco products have a greatly diminished expectation of privacy as some form of monitoring will be necessary to ensure that they meet their due diligence responsibilities. “The monitoring is done, not to punish past conduct, as would be the case for an offence under the criminal law, but to deter harmful conduct in the future,” said Justice Laskin. “In other words, to prevent harm to the public from the illegal sale of tobacco to minors.” (ii) Using random test shopping in not virtue testing, but rather compliance testing. “Virtue” is irrelevant to the strict liability offence of selling tobacco to a minor. A person can be convicted for merely being negligent. (iii) Test shopping takes place at a store that sells tobacco to the public as part of the store’s ordinary business. The opportunity to commit an offence when the test shopper asks to buy a package of cigarettes is no different from the opportunity presented when any underage customer asks to buy cigarettes. The test shopper does not present the store or its employees with an opportunity to commit an offence that they would not otherwise encounter in the ordinary course of their business. Any invasion of the store owner’s or employee’s expectation of privacy is minimal at best. 2. The rationale that prohibits the police offering a person an opportunity to commit a crime without a reasonable suspicion that they had already engaged in criminal activity because those who would not otherwise be involved in criminal activity might commit criminal offences also does not apply. “The opportunity provided to the store clerk to violate s. 3(1) when the test shopper asks to buy cigarettes is exactly the same as the opportunity provided when any underage person comes into the store and asks to buy cigarettes,” said Justice Laskin. “Test shopping does not provide an opportunity to the store clerk that is not routinely available in the course of the store’s business.” Since neither rationale underpinning the reasonable suspicion requirement of the entrapment doctrine applies to a charge of selling tobacco to a minor, government authorities may engage in random test shopping to monitor compliance with the statute. They need not have a reasonable suspicion of illegal activity before using this investigative technique. Furthermore, “random test shopping is the most effective way to achieve the government’s purpose of ensuring compliance with the statute and deterring future illegal sales of tobacco. Surveillance ... is largely ineffective. And expecting minors who have purchased tobacco to cooperate with the authorities by reporting an offence or giving them information is highly unrealistic. Prosecution for an offence may have some deterrent effect. But deterrence comes mainly from the threat of detection occasioned by random test shopping.” The discretion to use random test shopping, however, is not unfettered nor unreviewable by a court. Random test shopping must be done in good faith, used for a proper purpose, and carried out bona fide and without discrimination. If not, a court retains jurisdiction to stay proceedings under the general abuse of process doctrine. In this case, the test shopping was bona fide. The store targeted was randomly chosen from a master list of stores in the area. Complete case available at www.ontariocourts.on.ca PAGE 14 !"#$%&'!(%)*+,- !"#$%&'(%()&*+ ,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB !"#$%&'!(%)*+,- A PEER READ PUBLICATION Volume 11 Issue 1 - January/February 2011 A PEER READ PUBLICATION ON-DUTY DEATHS RISE $8'*&*"O$(# +*$8'*&*"O$(# &)(%('&%$#"! !""%$ !""% !""%$ !""% BA.'#@?'7%70'14<;>2=<;4:'948'73650'43210/*'.-, -,+*)%(!'&%$#"! * !"#$%&'()*9&(),3)*:31#&- * # E6);*&,)*"/,*6),")$F*G)*$6&((*#"%*H",1)%*%6)4F Constable Artem (James) Otchovski # # A:3:I@:2#*86#5++U # # E1F1<#G;?1@<:# C:>>B:2# ;D# ?4:# E1F1<# in# End of Watch: March 1, 2010 # # # &(0G#Z<@:2?1 Canada rose by three last year, equal G;# D1?1<<9# >4;?# Cause !"#$%&'()*<3"#30)*5"6#$%"# 7E2I=H5C%*'G;2<210'*;;(;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# C1/E';14!"#$%&'()*7#%6"#;*:",0"# /2FFC'4/25CD'5E>C2'(Accident to the 2007 total. In 2010 seven =K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@:3O# # # 01234#W6#5++U ./# 01234# 56# 5++7# 85,9:12,;<=# (;/>?1@<:# A1/B:<# C:>>B:2# ;D# ?4:# E1F1<# G;# D1?1<<9# >4;?# A:3:I@:2#*86#5++U =K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@:3O# NOITACPB># ILBU P DAER REEP A H12?/:2# (;/>?1@<:# $?:H41/:# E1F1<#G;#J1>#J;K/=:=#B/#?4:#12IO # # F4)6%*%)1,"H*%"#*((&6$*)G*F$)"F4 ,))66*,%/*%")*1),,"&H*;%")#6*E((&6$*)G*F$)",)6*,/"*),&*;)6E ;D# 1# <12L:# >BIK# # @::/# H12?#01234#W6#5++U PB># peaceH12?/:2# officers(;/>?1@<:# lost their $?:H41/:# lives on the# #($O"*&# *'8#$ 3213R=;J/# ;/#$%" 1#"! =2KL,=:1:1234# J1221/?># ;K?# & # 1 3 : * ) 3 , ) ( & 9 * ) ( ' & % $ # " ! * Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO job. This is 75% higher than the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total when only four on-duty peace officers deaths* (;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# were as reported by the Officer Down @::/#recorded, H12?# ;D# 1# <12L:# >BIK# Memorial Page. 3213R=;J/# ;/# 1# =2KL,=:1:1234# J1221/?># ;K?# D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# Motor vehicles, not guns, continue to pose the ?J;#B/#M2;>>12=O greatest risk to officers over the last 10 years. Since * !"#$%&'()*=)%),*>-63)4&## 2001, 29 officers have@::/# lost their lives in (;/>?1@<:# C:>>B:2# 41=# Constable Chelsey Robinson circumstances involving vehicles, including 1>>BL/:=#?;#?4:#I;21TK1=#;/<9#;/:#J::R# Royal Canadian Mounted Police @:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;O (3), and being struck by a vehicle (3). These assault !""&$ !""& Cause Death: Automobile Accident *$)4&5*#C(&1,"/?E,"';!#14/2FFXK<9#*Y6#5++Y# *C'4/25C*D'5E#>>CB42 #E 9@ #>3>':1C4*#< #:<<4 @15;?9 >/ ('#( A:3:I@:2#5*6#5++*# E2I=H5C;%&'@G";((&2: 14#=D:CF'BCF234 deaths account(;/>?1@<:# for 44%C:>>B:2# of all on-duty deaths, 7which * 8++<251#06-'5*;#9;#(;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# 21K2@:Q# !",?",&(*5&4)$*:&(("@&; # # #;4J #6:#DBJ # 01234#W6#5++U &(0G#01/B?;@1 &(0G#$1>R1?34:J1/ # : 3 B < ; H # 1 # > 1 # > : F 2 : > # ; > < 1 # B># >K2FBF:=# @9# 4B># @::/# H12?# ;D# 1# <12L:# >BIK# 1?2:@2:?4LK1= #L/K;9 #;J? #=/1 ###6:<@1?>##/;3 # &(0G#Z<@:2?1 is almost twiceJBD:6# the next cause1>#of 1#gunfire # *3213R=;J/# !"#$%&'()*5/,1)#*>))@&(0 ;/#!"#$%&'()*2"'3#*!&4),"# 1#"! =2KL,=:1;# !"#$%&'(%()&*+ >:2F:># H;#: * L1 # 01234#U6#5++* !"#$%&'()*.,"-8*+;,"( J1221/?># ;K?# #/:?J;2R# # JB?4# >:1234# XK<9#*U6#5++Y# & # 1 3 : * ) 3 , ) ( & 9 * ) ( ' & % $ # " ! * $ ! " " ! # # &(0G#Z<@:2?1 ,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB in the same 3;/>?1@<:6# 10 year period. average, seven !"#$%&'(%()&*+ 1/=# ?J;# On 9;K/L# =1KL4?:2># # = < ; , 2 1 : 9 , 5 8 # 7 + + 5 # 6 5 # 4 3 2 1 0 # / . # 01234#W6#5++U # # &(0G#"K/1FK? D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# &(0G#$1>R1?34:J1/ ,);/-UB+A<+*5%3#"6#8)*.#2*:)#@('I&%:$3#:"A !# *# *# ##W DE;##:,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB <14??;#?D;#1#2#6:2B:>B>>:>C :C ;#;#4 :4? #4?BV <1*F#1Potvin #<:#:B/<@11A?#>#:/<;@( 1?#D>/ (?1:= #&(0G#Z<@:2?1 officers lost their lives each year during the last ?/:I?52+1+H5 :#A6-#:5Constable 3#9B<#?J;#B/#M2;>>12=O E# ## Michael ## 1L:>#*+#1/=#*5O !"#$%&'()*5"6#*7%83#$"# 2;1GK#<21@F:1Q F;<<#1:?21BDD/#K>L1#J ;?##>?:/F:BI <#2?B2:14H?:#?A>;#<:#:3FB<1;4G#>2:3BDD;#:3B<;H ##?:;44?>#2:#9 !"#$%&'( * )**+%&$( !"#$%&'()*=)%),*>-63)4&## ,"-.( /&0"$+12( 314&5( 161+2172&( 18( !""! # 019#U6#5++Y :"3!""!$ BF,"2:*$;##:"36B%<#;7 G#*<)1#(;/>?1@<:# : 2%?$/#;"0 # #41=# ):@::/# C:>>B:2# = K < 3 / B # : 2 B D / K L # 9 @ # = : < < B R # > 2 : 3 B D D ; # 2 : 4 ? . # O > 2 1 : 9#+*#?>1H # 0 ( ' & ! * * #O3:@:KN#6=21>>;Police 2M#/B#?>K@#LK2---9":0;9"$4<%1.1:1 =#1#L/B2K= decade, while 2002 had the most deaths at 12. Royal Canadian Mounted # # 01234#W6#5++U # #43210# VB/=>;2#G;>BL/:=#?;#?4:#I;21TK1=#;/<9#;/:#J::R# U + + 5 # 6 W # # * * !"#$%&'()*.)#"3%*/;( #2:/?#21H #>#BP VB?4# ?4:# =:1?4# ;D# (;/>?1@<:# C:>>B:26# 1# ?;?1<# ;D# *W# &(0G#Z<@:2?1 A PEER READ PUBLICATION $#""! 1?2:End @<@:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;PUBLICATION 1J#>:@2;Q *)9:12>O ('&%$#"! Q:@2K129#5-6#5++5 * * * H;#41F:#<;>?#?4:B2##?;#LK/DB2:#;F:2#?4:# ((#3/"D%1$###6"",%5>**)$03#3##")3C<#?C5H=4','$;;H4'L 04'J=E1<'E>3'J/;(# Drowned #=14#>:#Y@+2+;Q5* #6=Y/*1#9#2<:K*XB>>:C#>!",?",&(*5&4)$*:&(("@&; # #*++5U#6+*+55#Cause #2*E1/GM(D125'LNN, H1>?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/349;54<<41'346C<43'E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7 -,+*)%(!'&%$#"! # # !"#$%&'!(%)*+,- # # # !"#$%&'!(%)*+,- # 2010 ROLL OF HONOUR # 1@;?B/10#G0(& 1?2:@?1@<:# # # C:>>B:2# B># >K2FBF:=# @9# 1< #D; #?2#1H #/::@# /#>1KJ;4B># ::4/31??11B>$##:GL02( ('>49;54<<41'346C<43'E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7 # # # # Q:@2K129#5-6#5++8 !""%$ !""% * !"#$%&'()*+&,-*."/,0&1)$ Superintendent Doug Coates Royal Canadian Mounted Police End of Watch: January 12, 2010 !"#$%&'()*2"'3#*!&4),"# Cause of Death: Natural Disaster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Ashmore, 2011 BCCA 18 The police obtained a wiretap authorization and began an undercover operation following a murder. The accused was befriended by an undercover officer in a “Mr. Big” style operation and told the officer how he had strangled the victim and that the killing had been carried out at the request of the victim’s common law spouse. He, along with three others, was arrested at about 3pm on a Friday. He was told he was being arrested for first degree murder; he faced the possibility of life imprisonment; he had the right to retain and instruct counsel in private without delay; he could call any lawyer of his choosing; there was a 24-hour telephone service available if he wished to speak to a legal aid duty counsel in private; he may be monitored by audio-video surveillance while in custody, except while speaking with counsel in private; and he had the right to remain silent, but that anything he said may be given in evidence. He said that he did not have a lawyer and he wished to speak with legal aid duty counsel. He was taken to police headquarters, and was processed and booked into the cellblock area. At police headquarters the accused was taken to a private telephone room. Police confirmed that he wanted to speak with legal aid duty counsel and an officer placed a call to the 24-hour legal aid number, leaving a message asking for a return call. A lawyer returned the call, was told that the accused had been arrested for first degree murder, and a private two and one-half to three minute conversation followed. After the call the accused indicated that he was satisfied with the opportunity he had been given to contact counsel. He spent the night in a cell and at about 9 am the following morning (Saturday) he participated in a teleconference hearing before a Judicial Justice of the Peace (JJP) who ordered him detained in custody in accordance with s. 515(11) of the Criminal Code. He was to be conveyed “to a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup” and to appear before a Provincial Court judge on Monday. After the hearing the accused was returned to his cell. At 1:15 pm that day he was interviewed for two hours at police headquarters. Part way through the interview the police played a video clip of the accused admitting to the undercover officer that he participated in the murder. After seeing the clip the accused confessed his involvement and described in detail his role and the roles of the other parties. At the end of the interview he agreed to participate in a reenactment. He was then returned to his cell. About three hours later the accused was taken from his cell to a different interview room at police headquarters for a re-enactment. He was advised that it was up to him whether he participated in it and that he had the right to consult with a lawyer. He said that he wished to speak with his girlfriend’s lawyer and was told that those arrangements could be made. When he then stated “Let’s just do the re-enactment”, the officer advised him that his participation was “strictly voluntary” and confirmed with the accused that he was “sure” he did not want to speak with a lawyer. The officer also confirmed that he had a right to consult a lawyer before participating in the re-enactment, was not obliged to say anything, and anything he did say may be given in evidence. Using a drawing of the apartment the accused described how events unfolded. Further reenactments then proceeded in three stages: (1) at another police station furniture was arranged to replicate the room in the apartment where the murder occurred and the accused demonstrated how the victim had been killed and how his body had been removed from the apartment; (2) at the apartment building where the murder occurred the accused demonstrated how the body had been taken down a stairwell and placed in a vehicle; and (3) where the body was dumped the accused demonstrated how he had disposed of it. On the way back to police headquarters the officer suggested that the accused call his mother, which he did the following day on Sunday (Mother’s Day). During this conversation the accused admitted his involvement in the murder. It was recorded. PAGE 23 Volume 11 Issue 1 - January/February 2011 At trial in British Columbia “The police practice of disclosing counsel advising a detainee. A reSupreme Court the accused enactment is nothing more than a was convicted of first degree information, be it true or false, to statement by conduct. It involves a murder by a jury. He did not person demonstrating, rather than encourage a detainee to talk deny participating in the simply recounting, how events does not, without more, remurder, but argued that it unfolded. It can hardly be said, for trigger s. 10(b) rights.” was not planned and example, that [the accused’s] deliberate. The evidence of response to ‘Tell me how you the accused’s statements and the re-enactments was strangled Mr. Sabine’ is of a different character than admitted. He then appealed to the British Columbia his response to ‘Show me how you strangled Mr. Court of Appeal challenging the admissibility of his Sabine’.” Furthermore, “even if a re-enactment could statements and the re-enactments. He argued, be considered to be a new procedure, a request to among other grounds, that he should have been participate in one was not a matter on which [the given further s. 10(b) Charter advice before being accused] required further legal advice,” said the shown the video clip of his statement to the Court of Appeal. “Although [the accused’s lawyer] undercover officer and again before being asked to did not specifically use the word ‘re-enactment’, he participate in the re-enactments. As well, he did counsel [the accused] against participating in a contended that after the JJP hearing he was in the line-up or a lie detector test, and to be aware that custody of the court and the police could no longer the police might ask him to participate in some form interview him without again giving him s. 10(b) of ‘test’ as a ruse to get him to talk. Given that rights. advice and the strong general admonition [the accused] received with respect to providing any Right to Counsel information to the police, he was in a position to be able to make a meaningful choice about whether to The Court of Appeal concluded that the accused was participate in the re-enactment.” not required to be given another opportunity to The accused also submitted that once an arrestee is contact counsel before being confronted with the remanded to the custody and supervision of the video clip from the undercover operation or before court and detained, the police must re-advise him of being asked to participate in the re-enactment. his rights in accordance with s. 10(b) before Neither of these events re-triggered the informational interviewing him. But the Court rejected this and implementational components of s. 10(b) argument, finding that a remand order did not have because they were not new (non-routine) the effect of shielding an accused from otherwise procedures. When the officer played the video clip lawful investigative action. “A remand order, by he “did no more than accurately disclose evidence itself, neither confers new constitutional rights on a the police had already gathered,” said Justice detainee, nor imposes limitations on what lawful Frankel. “The police practice of disclosing investigative techniques may be used by the police,” information, be it true or false, to encourage a said Justice Frankel. And further: detainee to talk does not, without more, re-trigger s. 10(b) rights.” [W]hen [the accused] was interviewed at police headquarters … he was lawfully As for the re-enactment, the detained, as the warrant of accused was re-advised of his “A re-enactment is nothing c o m m i t t a l authorized his right to consult a lawyer and more than a statement by detention at “a police lockup”. chose not to do so. Even if he The fact that [the accused] was conduct. It involves a person wasn’t re-advised of his right to questioned in interview rooms counsel, a re-enactment is not to demonstrating, rather than rather than in a cell is, in my be considered “a new (nonopinion, of no consequence. In simply recounting, how events routine) procedure that falls the circumstances of this case, it outside of the expectations of unfolded.” would be drawing too fine a PAGE 24 Volume 11 Issue 1 - January/February 2011 distinction to say that the lawfulness of a detention is vitiated because a detainee is interviewed in another part of the building in which he is being lawfully held or, to use the other example …, participates in an identification parade (i.e., a line-up) that takes place outside the cellblock area of a lockup or provincial jail. the re-enactment. The admission of this evidence would best serve the long-term interests of the administration of justice. Complete case available at www.courts.gov.bc.ca WHY IS THIS IMPORTANT? As [the accused’s] position vis-à-vis the investigation was the same before and after the remand order was made, the police were not required to re-advise him of his rights under s. 10(b) of the Charter. [paras. 104-105] There was no material change in the accused’s situation after his consultation with a lawyer such that a new s. 10(b) warning be given because of the remand. Arbitrary Detention During Re-enactments The Court of Appeal found the police had breached the accused’s s. 9 Charter rights to be free from arbitrary detention when he was moved from police headquarters and participated in the re-enactments at the other police station, the apartment, and the body dump location: The warrant of committal authorized the police to convey [the accused] to “a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup and deliver him/her to the keeper thereof”. It did not give the police the unilateral right to remove [the accused] from one of those places and keep him in their custody elsewhere for investigative purposes. The Crown has not referred to anything that would validate their actions. Accordingly, when [the accused] was taken from police headquarters solely for the purposes of the re-enactment, he was being unlawfully detained. Such a detention is constitutionally “arbitrary”. [para. 106] However, although there was a temporal and tactical connection between the accused’s arbitrary detention and his participation in the re-enactment, the evidence was admitted anyways under s. 24(2). So too was the accused’s telephone conversation with his mother, which was also temporally and tactically connected to the accused’s participation in In the 2010 Supreme Court of Canada trilogy of Sinclair, Willier, McCrimmon, one of the questions the Court needed to address was at what point a detainee, who has been properly accorded their right to counsel at the outset of their detention, has the constitutional right to further consultations with counsel. The majority opined that a detainee has a renewed right to counsel and should be given an opportunity to speak to a lawyer again where there is a change in circumstances such as: ✓ new “non-routine” procedures involving the detainee (eg. participation in a physical lineup or polygraph); ✓ a change in the jeopardy facing the detainee (the investigation takes a new and more serious turn as events unfold); or ✓ reason to question the detainee’s understanding of their s. 10(b) right to counsel. Since these decisions other provincial appellate courts have looked at different circumstances to determine whether a renewed right to counsel was triggered. Here are some circumstances where courts have found an additional opportunity to speak with a lawyer did not arise: ‣ recording an arrestee’s voice during an interview for later voice comparison purposes to a wiretap coversation was not a new “non-routine procedure (Wu, ABCA); ‣ participating in a re-enactment was not a new “non-routine” procedure. A re-enactment is nothing more than a statement by conduct (Ashmore, BCCA); ‣ playing a video clip from a Mr. Big operation did not re-trigger the right to counsel. It did nothing more than accurately disclose evidence the police had already gathered (Ashmore, BCCA); ‣ police practice of disclosing information, be it true or false, to encourage a detainee to talk does not, without more, re-trigger s. 10(b) rights (Ashmore, BCCA); ‣ following a remand the detainee’s position vis-àvis the investigation is the same before and after the remand such that the police are not required to re-advise the detainee of their rights under s. 10(b) of the Charter (Ashmore, BCCA). PAGE 25 Volume 11 Issue 1 - January/February 2011 STARTING SENTENCE FOR WHOLESALE COCAINE TRAFFICKING IS 4 1/2 YEARS What Did the Accused’s Lawyer Tell Him? Do you ever wonder what a lawyer says to a client? During the Ashmore case the accused called his lawyer to testify. The lawyer said he frames the legal advice he gives in a positive manner so as to inform those under arrest what they should do. Here is what he said he told the accused: • That he had the right to remain silent. (This was repeated two or three times.); • That he should not say anything to the police beyond identifying himself; • That the police were entitled to ask him all the questions they want, and would do so, but that he should repeatedly say he does not want to talk to them; • That he should assert his right to silence by using expressions such as: “I don’t want to talk to you”; “I have nothing to say to you”; and “My lawyer told me not to talk to you”. (This was repeated two or three times.); • That he should not listen to the police as they will exaggerate evidence, misplay evidence, lie about what evidence they have, and try to trick him; • That the police might put someone in his cell and “bug” his conversations; • That he should act on the basis that the police are listening to all his conversations, except those with a lawyer; • That he should not provide the police with, or consent to the warrantless taking of, any bodily samples, such as hair, spit, blood, tissue, or anything from which a DNA sample could be obtained; • That he should be careful of any waste, such as blowing his nose into a tissue. Waste should either go into the toilet or be cared for; • That in the event that the police obtain a warrant for a bodily sample, he should say “I am not consenting but I will comply with the warrant”; • That the police were entitled to take his photograph but that he should not participate in any line-ups or take any lie detector (polygraph) tests; • That the police might ask him to participate in a test as a ruse to get him to talk; • That if he wanted to apply for legal aid, then he should do so at the earliest opportunity; • That the legal aid office was closed on the weekend but a legal aid lawyer would be available to him at the courthouse; and • That in a murder case the police have 24 hours to take an accused before a judge or justice of the peace, but there is no chance of being released before going to court. He should speak to a legal aid lawyer when he gets to court to start the process of seeking release. R. v. Ashmore, 2011 BCCA 18 R. v. Nishikawa, 2011 ABCA 39 The accused sold 0.5 grams of cocaine to an undercover officer for $80 then, after he was targeted for investigation police stopped his vehicle and found 10 ounces of cocaine with an estimated street value of $47,000. He pled guilty in Alberta Provincial Court. On sentencing the Crown sought a four-year prison term while the defence proposed a conditional sentence. The judge imposed a conditional sentence of 10 months for trafficking and 2 years less a day for possession for the purpose of trafficking, to be served concurrently. The Crown then successfully appealed the sentence submitting it was demonstrably unfit. The Alberta Court of Appeal has set starting points for trafficking in cocaine, whether at the commercial or wholesale level, which can be adjusted for the offence and the offender. The sentence for commercial trafficking in cocaine at something more than a minimal scale starts at three (3) years while the starting point at the wholesale trafficking level is four and a half (4.5) years. In this case the possession offence was for trafficking at a wholesale level. Although at the low end of the range, the Court of Appeal imposed a sentence of 30 months imprisonment after considering the accused’s guilty plea, his favourable pre-sentence report, his family history, and his positive efforts in overcoming his addiction. Complete case available at www.albertacourts.ab.ca “Cocaine is a particularly insidious drug, one that wreaks havoc not only upon all who are addicted to it and those near them, but also upon society at large.” R. v. Nishikawa, 2011 ABCA 39 PAGE 26 Volume 11 Issue 1 - January/February 2011 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7@ was convicted of several firearm, counterfeit, and possession of stolen property offences. !"# 2304 The Ontario Court of Appeal, however, overturned the trial judge’s ruling and excluded the evidence. 7916 “The23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ reality of the drug trade is that The police were careless. The affiant officer made an 4#5+ the'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ supply chain depends on a wide erroneous statement that surveillance officers saw 9'4# containers of paint in the accused’s garage. His %9+ /$'8$+ #$-+ )"#$%&'('*6+ 8%"41+ $).-+ variety of individuals, all of whom are5"16-+ suggestion that he was rushing to complete the @0,"$:9#56+3'$+5$A05#4$3'$0$,05# 6&)*#-1+#$-+)"#$%&'()#'%*<+ indeed vital to the criminal enterprise paperwork for the search warrant was not an excuse (##$80/#$BB$=3)$6"#$0'5>#)5? for inserting this erroneous detail. “Significant !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Drug Couriers & Sentencing as a whole. That certainly includes the couriers of the 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ carelessness on the part of the police that leads to drugs, especially the couriers of large quantities of hard the issuance of an invalid #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ C?$D11$3,,980'65$3=$0$*#"+,1#$0)#$8 search warrant must drugs. These couriers are not on the periphery of drug nonetheless be placed on the serious side of the %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4$=3 state misconduct spectrum,” said Justice Simmons. trafficking; they are integral 7%"6$#+ to it, constituting, as they-.'1-*8-+ %9+ #$)#+ $ F0G$!)9# #$)#+ #$-+ )"#$%&'()#'%*+ /'44+ )99%&1+ do, an indispensable part of the illegal distribution and Plus, although the police made efforts to comply %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# with the Charter by applying for a warrant, the sale#$-+ of drugs. It must be5"16-+ remembered trafficking #$-+ &-.'-/<+ 3$-+ $ %9+ )"#$%&'('*6+ /$-*+that 8%*1"8#'*6+ invalid warrant authorized a search of a dwelling in a prohibited drug includes transport and delivery of house which, in this I?$D5J+'/$0$4)+*#)$63$A13>$+'63$0' @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ case, was a factor pointing 3=$ As 4#6#)7+'+'/$ 6"#$ that drug.#$-+ By including these activities trafficking, to the of evidence. Justice /$'8$+ )"#$%&'('*6+ 5"16-+ in8%"41+ $).-+strongly 6&)*#-1+ #$-+exclusion89)835#$ well-established that a Parliament signalled the high level of culpability that Simmons noted, “It is 3439)$+5$0$8#)7+55+A1#$5,)##' )"#$%&'()#'%*<+ dwelling house attracts a high expectation of privacy '36$#'/0/#$6"#$)+/"6$63$,39'5 must attach to those carrying out these roles”.– Alberta and that an illegal search of a person's home 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# ' %*+'9+7)#'79'-1+ M"0)6#) ? person's right constitutes a significant breach of the Court of Appeal Justice Watson in R. v. Nishikawa, 2011 %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B to be#$-+#%#)4'#A+ free from unreasonable search $ F0G$!)9#and seizure.” ABCA 39 at para. 10. %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ $ FAG$H015# Similarly, even though the seized items were POLICE CARELESSNESS RESULTS )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8#'%*+'7+ $ reliable, highly probative, and central to the prosecution’s important 8)3*+',#$ factors did "04$ not 6"#$ 73 B?$ N"+,"$ #%+ -D);'*-+IN #$-+EXCLUSION 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )*1+ *%#+case, #%+ these outweigh the significant harm to the long-term R. v. Dhillon, 2010 ONCA 582 (98)#7#$M39)6$3=$M0'040$+'$I 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# occasioned by the admission of the evidence. This Police obtained and executed a was an intrusive search of the accused’s home and search warrant. They were looking KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q the warrant was issued because of significant for containers of stolen paint, bills of $ F,G$R'60)+3Q carelessness in preparing the Information to Obtain. lading, shipping documents, and The accused’s convictions were set aside and $ F4G$S9#A#,? four handguns and ammunition even acquittals substituted. though the only offence alleged in the search warrant was related to the stolen paint. T?$!"#$+'=3)706+3'01$496<$+7835 Police found $371,670 in counterfeit 5?CLFAG$3=$6"#$ M"0)6#)$ +5$63$/+ “It is well-established that a dwelling house attracts a money, a loaded handgun, ammunition '36+,#$ 3=$search 6"#+)$of)+/"65U$ '36$ and an extra magazine, and cargo from high expectation of privacy and that an illegal four separate tractor trailer thefts. At trial #V#),+5#$6"#7?$ a person's home constitutes a significant breach of the the Crown redacted from the $ F0G$!)9# person's right to be free from unreasonable search and Information to Obtain significant portions of the details provided by the seizure.”$ FAG$H015# confidential informant. The judge !"#$ (#*#'6"$ Z3)6"$ D7#)+,0'$ M3'=#)#',#$ 3'$ ("0J#'$ quashed the warrant but admitted the Complete case availableW?$D$831+,#$3==+,#)$'##4$'36$70 at www.ontariocourts.on.ca P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ evidence under s. 24(2) of the Charter. The accused www.10-8.ca '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P)+6+5"$ PAGE 27#V8#)65$ >+11$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ 1#/01$6)0,J?$ M34#$ 088)3*#4$ 5,)##'+' +'560'60'#3951<$983'$4+5,3*#) 01,3"31$ +'$ 6"#+)$ A34+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1 175(1)(a).” Ontario Court of7%"6$#+ Justice in/'44+ R. v. )99%&1+ Osbourne,-.'1-*8-+ %9 #$)#+ #$-+– )"#$%&'()#'%*+ 2008 ONCJ 134 at para.21. %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7 %9+ #$-+ )"#$%&'('*6+ 5"16-+OF /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/ CONSUMPTION ALCOHOL @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7 CAN BE A FACTOR IN /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)*#-1 DANGEROUS DRIVING )"#$%&'()#'%*<+ R. v. Settle, 2010 BCA 426 Justice Lang disagreed with the majority. In his opinion the trial judge did not err by misinterpreting or misapplying the law. He was aware that an externally manifested disturbance was necessary and concluded that such a manifested disturbance had occurred after considering the location and volume of the accused’s remarks, and the context, including the nature, degree of intoxication and volatility of the crowd and the time and circumstances of the event. Further, the trial judge found the crowd was not gathering in reaction to the accused’ subsequent arrest, but instead because of the accused’s actions beforehand. 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# The British Columbia Court of '%*+'9+7) Appeal has ruled that a trier of fact #$-+# %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B may take into consideration the %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8 consumption of alcohol by an )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8# accused in deciding if they are guilty dangerous#$-+ driving causing bodily harm, if #%+of-D);'*-+ 7"==%&#'*6+ )99'1).'#+ )7+even )+ /$%4->+ )*1+ * they are acquitted of operating a motor vehicle 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+G KLLM+G %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# offence of dangerous driving concerns the manner of KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ an accused’s driving, not its consequences. The Complete case available at www.ontariocourts.on.ca www.10-8.c “A ‘public disturbance’ requires more than a crowd observing – or even shouting anti-police sentiments at – police officers in the course of arrest.” mens rea for the offence is a marked departure from the standard of care of a reasonably prudent driver in all of the circumstances facing an accused. It is a modified objective test that does not require proof of subjective intent. Instead the test involves the objective foresight of a reasonably prudent driver of the risk of harm created by the accused’s deliberate conduct. Evidence of an accused’s actual state of mind (intentional conduct), if available, is a relevant consideration. So too is evidence of reckless or wilfully blind conduct. Thus, evidence of an accused’s voluntary consumption of alcohol may be !"#$ (#*#'6"$ Z3)6"$ 3'$ ( relevant in establishing theD7#)+,0'$ mens rea of M3'=#)#',#$ dangerous driving. “Where such conduct demonstrates a P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"# '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)6 A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$5 1#/01$6)0,J?$ PAGE 29 Volume 11 Issue 1 - January/February 2011 recklessness in creating a risk or danger to other users of the highway it may, when considered with the evidence of driving conduct, establish a pattern of disregard for the safety of other users of the highway that amounts to a marked departure from the standard of care of a reasonably prudent driver.” In dismissing the accused’s appeal the Court found that “it was open to the trial judge to find that the manner of the [accused’s] driving, on this stretch of road, at this time of night, was objectively dangerous and that, when considered with the evidence of the [accused’s] consumption of alcohol that day, amounted to a marked departure from the standard of care of a reasonably prudent driver in all of the circumstances.” Complete case available at www.courts.gov.bc.ca PROLONGED ROADSIDE DETENTION PENDING WARRANT EXECUTION NOT ARBITRARY R. v. Trieu, 2010 BCCA 540 Police obtained a search warrant relating to a suspected theft of hydroelectricity at a residence in the accused’s name. They were also investigating and had warrants to search three other homes along the same street for suspected theft of electricity. Officers attended with the search warrant and set up surveillance in unmarked vehicles along the street where the home was located at about 9 a.m. The front door and garage were being watched and no one had been seen coming or going until 12:15 p.m. when a car driven by a male was seen leaving the garage of the property. Shortly thereafter the vehicle was pulled over and its driver, the accused, was advised that the police had a search warrant for electrical theft at the property he had just left. The officer asked the driver for his licence, which showed the address for which the search warrant had been obtained. The accused was told that he was being detained for “theft of hydro investigation” pending the execution of the search warrant. When he was advised of his right to counsel he said he wanted to exercise it, but was not permitted to contact a lawyer at that time. The officer !"#$!!%&'("$)*+# LEGALLY SPEAKING: !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Proving Possession of Grow-op 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$“Evidence that establishes mere '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$knowledge of the criminal conduct %9+ /$'8$+ )"#$%&'('*6+ taking place in #$-+ the residence is not5"16-+ 8%"41 6&)*#-1+#$-+)"#$%&'()#'%*<+ enough. There must also be evidence from which it can be3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'inferred that the accused person owned the marijuana crop, cultivated the crop, aided #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+# or abetted somebody else in the criminal operation, or %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1 #otherwise some control7%"6$#+ over the /'44+ crop.”–)99%&1+ British-.'1-*8-+ % #$)#+ #$-+ had )"#$%&'()#'%*+ Columbia Court of Appeal Justice Low in R. v. Bi, 2011 %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+ BCCA 10 at para. 2 in the context whether an8%*1"8#'*6+ accused found #$-+ &-.'-/ %9+ #$-+ )"#$%&'('*6+ 5"16-+of /$-*+ to be living in the upstairs of a house was criminally implicated in @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:) the grow operation police found in the basement. /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)*#-1 did not want the accused to make any phone calls )"#$%&'()#'%*<+ until the warrant was executed nor could he provide privacy at the roadside. Upon entering the home 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9+7) police found a large marijuana grow operation and #$-+ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B several documents linking the accused to the %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8 residence. After the preliminary results of the search were noted, the accused was arrested for producing )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8 marijuana and was again advised of his Charter #%+ -D);'*-+ #$-+counsel. 7"==%&#'*6+ )99'1).'#+25)7+ )+ /$%4->+ )*1+ * rights to consult Approximately minutes 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+ KLLM+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# where he was permitted to contact counsel. About KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ 45-50 minutes had elapsed from the time of his detention until he was given an opportunity to contact counsel. He was subsequently released from custody on a Promise to Appear. www.10-8.c '-$)"+&.$.%&'%+/012"& '-$)"+&.$.%&'%+/012" 3$.4'*5"&-"$/&60$42$7 81+9"0"+8" At trial in British Columbia Supreme Court the judge found, among other things, that the accused’s s. 10(b) Charter rights had been breached because of the delay in permitting him to contact counsel. However, no evidence had been obtained as a result of that breach. In all the circumstances the judge concluded that there was no justification for the exclusion of evidence under s. 24(2). The accused was convicted producing marihuana and !"#$ (#*#'6"$ of Z3)6"$ D7#)+,0'$ M3'=#)#',#$ 3'$ ( possession for the purpose of trafficking. He then 1:;<=>?&@ABC&DEEF P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$" R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P PAGE M3197A+0?$ 30 !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#) A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$ 1#/01$6)0,J?$ Volume 11 Issue 1 - January/February 2011 theft, without regard to any other circumstances. [The officer] referred to a “possible takedown” of “suspects”; not the automatic detention or arrest of anyone seen leaving the premises. The evidence does not go as far in this respect as to amount to an automatic and indiscriminate policy whereby mere presence for any length of time at or near the premises triggered automatic detention or arrest. Here there was evidence of theft of electricity at the property, and [the accused] was seen leaving the property in the circumstances I have described, which involved his presence there for a considerable period of time, and the absence of any other persons associated with the residence. [references omitted, paras. 64-65] appealed to the British Columbia Court of Appeal arguing, in part, that his roadside detention prior to the execution of the search warrant breached s. 9 of the Charter because it was not based on proper grounds and was unjustifiably prolonged. Arbitrary Detention The accused argued that he had been detained simply as a result of a policy determined at the outset of the investigation to detain any person or persons seen leaving the residence. He submitted that the mere fact that he was seen leaving a residence associated with an apparent theft of electricity, without more, was an insufficient basis to detain him at that time and amounted to nothing more than a police hunch that he had some involvement in the suspected theft. But Justice Prowse, speaking for the Court of Appeal, rejected this approach: The initial roadside detention was not arbitrary and therefore did not breach the accused’s s. 9 Charter rights. Prolonged Detention [W]hile it is not suggested that the information The accused also argued that his continued available to the police constituted reasonable grounds for arresting [the accused], I am satisfied detention for some 25 minutes was no longer that it constituted reasonable grounds for reasonably necessary in the circumstances since the suspecting that he was involved in the criminal police had ascertained his identity and checks offence of theft of electricity in the residence he turned up no previous criminal record. In his view was seen leaving. He was the only individual this was more than a brief detention, amounted to a seen in relation to this single family residence de facto arrest, and was therefore arbitrary. The over the course of approximately four hours of Crown, on the other hand, contended that the surveillance, during the last two hours of which accused’s continued detention was necessary to both the front door and garage door were under enable the orderly execution of the search warrant, constant surveillance. This was not a fleeting which was conducted immediately following his connection. Nor was this a case detention. Further, the police were where many individuals were “[T]he further relatively involved in parallel investigations of connected with the residence, and all were arrested simply by short period of detention three other residences on the same virtue of that connection ... . was necessary to ensure block at the same time such that the Here, the police did not purport accused’s immediate release could have to arrest [the accused] when that the police were not imperilled all of the investigations. More they first detained him; rather importantly, the Crown suggested, the placed in jeopardy they placed him under what a c c u s e d ’s r e l e a s e c o u l d h a v e amounted to investigative should [the accused] endangered the officers involved in detention. alert any occupants of executing the warrants since he could have alerted any occupants of those Nor do I accept that what either his own or the occurred here amounted to a premises to the police presence. The other residences of the “standardless sweep” based on Crown also pointed out that the police a blanket policy adopted to did not handcuff the accused, a clear impending searches.” simply detain everyone seen indication that they did not regard him leaving any of the four as being under arrest. The Crown also said that, in residences under investigation for electrical PAGE 31 Volume 11 Issue 1 - January/February 2011 light of all the circumstances, the 25-minute lapse from detention to arrest did not turn the lawful detention into one which was arbitrary or otherwise unlawful. Primarily for the reasons of the Crown, Justice Prowse was not satisfied that the accused’s continued detention amounted to an arbitrary detention in the circumstances, nor did it give rise to a de facto arrest: In my view, the further relatively short period of detention was necessary to ensure that the police were not placed in jeopardy should [the accused] alert any occupants of either his own or the other residences of the impending searches. It is also significant that his further detention was only until the police safely entered and secured the residence. At that point, given their discovery of an active grow operation, [the accused] was arrested. [para. 73] Despite the other Charter breaches found, the evidence was admitted, the accused’s appeal was dismissed, and his convictions upheld. The Authority’s agents and employees shall have at all reasonable times, free access to the equipment supplied with electricity and to the Authority’s meters and apparatus and the wires leading therefrom on the customer’s premises to ascertain the quantity or method of use of service. The technician had been responding to a report of an overloaded transformer causing flickering lights in the neighbourhood, but DID NOT testify to that as the reason for conducting the service test. Had he done so, the British Columbia Court of Appeal would have had no problem accepting the technician’s entry onto the property at 10:15 pm as being at a reasonable time. An overloaded transformer or the threat of power failure would justify entry onto private property to address public concerns. But the evidence was that the service check was only ROUTINE. Hence, the Court of Appeal found the technician’s attendance on the property in these circumstances at 10:15 pm was unreasonable. The fact that entry is restricted under the Tariff to reasonable times is a clear indication that not all times are considered reasonable, and that Hydro employees cannot attend on private property at will, regardless of the circumstances. In my view, reasonable residents of private property are likely to conclude that strangers entering onto their property at 10:15 at night without invitation are up to no good. The presence of an apparent intruder on their property might dispose them to call 911, or, in a worst-case scenario, take matters into their own hands. In other words, unannounced entry onto private property late at night could well result in breaches of the peace, or in emergency services being deployed and public expense incurred, without good reason. [para. 48] Complete case available at www.courts.gov.bc.ca Side Bar Hydro Meter Checks The search warrant relating to theft of hydroelectricity that the police relied upon in Trieu was largely based upon information obtained from meter tests conducted on and off the property by a BC Hydro technician. The technician went onto the property at 10:15 pm to conduct a service check. He read the meter attached to the outside of the accused’s garage and then compared those readings with the electrical load on the underground service box located about 10 feet off the property. The technician’s right to attend on private property to check Hydro equipment was found in the BC Hydro and Power Authority Electrical Tariff, enacted pursuant to regulatory powers found in s. 125 of the Utilities Commission Act, which stated: The explanation that Hydro did not have sufficient staff to attend to all Hydro business during daylight hours was not accepted. “I do not consider it to be a basis for finding that any hour of the night or day is a reasonable time for checking meters on private property,” said Justice Prowse. “Absent situations calling for immediate attention ... , mere convenience cannot justify attendance on private property late at night.” R. v.Trieu, 2010 BCCA 540 PAGE 32 Volume 11 Issue 1 - January/February 2011 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7@ “Impressive newsletter, keep it up.” - Corporal, New Brunswick !"# 2304 “I find the newsletter very informative and look forward to each issue.” - Constable, British 7916 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “[The common law investigative Columbia 4#5+ '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ detention power] flows from the “I thoroughly enjoy the magazine.” - Sergeant, 9'4# %9+ /$'8$+ )"#$%&'('*6+ 8%"41+ $).-+ ancillary powers#$-+ doctrine and the5"16-+ Ontario @0,"$:9#56+3'$+5$A05#4$3'$0$,05# 6&)*#-1+#$-+)"#$%&'()#'%*<+ duties of police to preserve the peace, “I truly enjoy your publication and read it (##$80/#$BB$=3)$6"#$0'5>#)5? whenever I can. I am particularly interested in the !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Investigative Detention prevent crime and protect life and property. The power 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ British Columbia is not, however, a general power to detain whenever case law section.” - Constable, #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ C?$D11$3,,980'65$3=$0$*#"+,1#$0)#$8 use your Case>"#'$6"#$*#"+,1#$+5$56388#4$=3 Law articles for training such a detention will assist the police in the execution “I often %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ purposes for our frontline officers as they address of their duties. In order that an7%"6$#+ investigative #$)#+ #$-+ )"#$%&'()#'%*+ /'44+ detention )99%&1+ -.'1-*8-+ %9+ #$)#+- Sergeant, $ F0G$!)9# current issues.” Ontario not be arbitrary and thereby offend s. 9 of the Charter, %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# “A fellow officer passed on previous copies of the $ it must fulfill two conditions. First, the police must %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/<+ which 3$-+ are fantastic learning tools.” newsletter have "reasonable grounds to detain" in the sense that Police Officer, OntarioI?$D5J+'/$0$4)+*#)$63$A13>$+'63$0' @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ 89)835#$ 3=$ 4#6#)7+'+'/$ 6"#$ they reasonably suspect that the5"16-+ individual detained /$'8$+ #$-+ )"#$%&'('*6+ 8%"41+ $).-+“[I]6&)*#-1+ read the #$-+ newsletter religiously when available. 3439)$+5$0$8#)7+55+A1#$5,)##' was involved in a crime under investigation. There It's a fantastic source and a great way to stay )"#$%&'()#'%*<+ current on case law and its applications.” '36$#'/0/#$6"#$)+/"6$63$,39'5 must be both a subjective and objective basis for that Military Officer, Canada 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9+7)#'79'-1+ M"0)6#)? belief. Second, the detention must be "reasonably # $-+#%#)4'#A+ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B always love reading 10-8.” - Crown Counsel, $ F0G$!)9# necessary" in all the circumstances, including the “I British Columbia %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ $ FAG$H015# nature of the liberty interfered with and the public )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8#'%*+'7+ $ newsletter is GREAT reference material for purpose the interference serves..”– British Columbia “This front line.” Police Officer, Ontario B?$ N"+,"$ 8)3*+',#$ "04$ 6"#$ 73 #%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )*1+ *%#+ #%+ Court of Appeal Justice Lowry in R. v. Greaves, 2004 BCCA (98)#7#$M39)6$3=$M0'040$+'$I 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# KLLM+GHH!+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+!"#$"#%&&#'()#*'+,#KLLM+GHH!+ !"#$"#%&&#'()#*'+,# “Thanks for putting out a great newsletter. It’s great reading I can apply on the job.” - Constable, KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q TEN-EIGHT TURNS ELEVEN British Columbia $ F,G$R'60)+3Q “In www.10-8.ca Service: 10-8” is now into its eleventh year of “I found the newsletter to be informative as well $ F4G$S9#A#,? publication. It started in 2001 and has become a popular read among Canada’s law enforcement community. Here are some of the comments the newsletter has received from its readers. as an engaging read and I am currently plowing through the archives.” - Border Services Officer, T?$!"#$+'=3)706+3'01$496<$+7835 Canada '-$)"+&.$.%&'%+/012"& 5?CLFAG$3=$6"#$M"0)6#)$+5$63$/+ 3$.4'*5"&-"$/&60$42$7& “[I] find the 10-8 Newsletter very informative and '36+,#$ 3=$ 6"#+)$ )+/"65U$ '36$ “I love the read.” - Constable, Nova Scotia beneficial to effective policing knowledge.” #V#),+5#$6"#7?$ 81+9"0"+8" Constable, British Columbia “I find your articles very interesting, and easy to $ F0G$!)9# Prince Edward Island 1:;<=>?&@ABC&DEEF “Great read!” - Constable, understand.” - Educator, Alberta $ FAG$H015# “The whole set up is fantastic. ... Thanks a “The publication is excellent and I find it extremely !"#$ (#*#'6"$ 3'$ ("0J#'$ million.” - Detective,Z3)6"$ Alberta D7#)+,0'$ M3'=#)#',#$ helpful.” - Constable, British Columbia P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P)+6+5"$ PAGE 33#V8#)65$ >+11$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ 1#/01$6)0,J?$ W?$D$831+,#$3==+,#)$'##4$'36$70 M34#$ 088)3*#4$ 5,)##'+' +'560'60'#3951<$983'$4+5,3*#) 01,3"31$ +'$ 6"#+)$ A34(.43)+% ?,.434(4+% '9% 2#343.1% Register Today 5'*(673";%:'*3)+%8)"-+6&%"#+% Gordon Scobbie Conference keynote speakers include ... 1'.43,@% 41+% :'*3)+% A+"-+#.13B% CDEE% 5',9+#+,)+% 3,% General Rick Hillier (Ret) F",)'(G+#;% 2#343.1% 5'*(673"H% 013.% 3.% 5","-"I.% *"#@+.4% Assistant Chief Constable, West Midlands Police, UK, B'*3)+% *+"-+#.13B% Rick )',9+#+,)+% ",-% J3**% B#'G3-+% ",% Social Media Lead, Hillier's passion, leadership and outspoken 'BB'#4(,34&%9'#%-+*+@"4+.%4'%-3.)(..%*+"-+#.13B%4'B3).% Association of Chiefs of Police Officers (ACPO) "UK nature have captured the B#+.+,4+-%7&%J'#*-K#+,'J,+-%.B+"$+#.H% Policing 2.0. - The Citizen hearts and minds of APRIL 11-13, 2011 FG FK FP FQ KG K= KZ P= Canadians across the country. A man who takes pride in his country, his team and the significance of his mission, General Hillier is one of Canada's most celebrated leaders. 333456789:7:;<:=>?8596@A:=:@9:496B Gordon joined Strathclyde Police in 1980, serving operationally in uniform and CID through the ranks, as well as in other areas of the business including Force Personnel, introducing a national performance appraisal system for Scotland and being the first police force in the UK to achieve accreditation for investors in people. He then served for 3 years at the Scottish Police College delivering leadership training before returning to force to establish a disclosure bureau to provide conviction and non conviction information on those wishing to work with children and vulnerable adults. +C!!"*D'D,&'E()F&G *&#(D$"H(#' +C*I$I(#' J"*'!"#$%&'J(K$#$&+ Hillier tells it like it is - with confidence and a straight-talking manner. As Chief of the Defence Staff, Canada's highest ranking position in the Canadian Forces, he oversaw our country's most important mission in Afghanistan. Since retiring from that role, he's become more active in business and community programs, as organizations see the value in learning from and engaging with such a strong leader, motivator and team builder as Rick Hillier. and Digital Engagement" 3& 45(6& !"#$%&'($%)$*+#&%,-%&#$%./0+$%*1%2,&%,3$'4,5$%.6% *(,0#$%& He then served as an operational Chief Inspector %&'"#3& 5(147$8%2,&%-,(20%*2%&#$%+658%2,&%5$/1('$0%,2%/% before transferring to West Midlands Police on one"#*1% of Canada's most'$:(*'$1% charismatic and %,'"/#& Considered promotion in October 2004 as Superintendent, 14/7$9% )$*+#&% /% 1&'$2+&#% /20% influential soldiers, General Rick Hillier will Operations Manager at Coventry City Centre . He #3& ()$& challenge convention and inspire pride in being 4,20*&*,2*2+%-,'%)#*4#%-$)%,--*4$'1%/'$%&'/*2$09%"#$% was then promoted to Commander at Solihull in /6& H#$% Canadian, all while sharing his trademark August 2006 and following completion of the ./0+$%*1%2,&%;(1&%<*22$0%,2%/%4#$1&8%*&%*1%<*22$0%,2%/% Strategic Command Course he was successful in his "& '*& Newfoundland charm and humour. to join West Midlands Police as Assistant 7*-$1&67$9=%>%?,7*4$%@--*4$' application /--$-& For more information Chief Constable. Gordon has been in post since and to register: +%8,&/(&& www.policeleadershipconference.com June 2009, holding the Citizen Focus portfolio. ng in PAGE 34 Volume 11 Issue 1 - January/February 2011 Banquet Dinner Entertainment Rex Murphy Rex Murphy is one of Canada's most respected opinion leaders. His witty intellect and profound insight into issues affecting Canadians are the reasons why they tune in regularly to his weekly CBC radio show, Cross Country Checkup, watch him on CBC TV's The National, and read his column in The National Post. He has a unique ability to examine a topic and articulate it in the most profound yet digestible way. Murphy's audiences become so engaged they don't even realize it's happening. Cross Country Checkup is Canada's only national open-line radio program, broadcast live across the nation every Sunday afternoon. Each week, Murphy moderates a lively discussion on an issue of national interest or importance and invites listeners to call in with their opinions and thoughts. Rex Murphy is a stimulating speaker, accomplished storyteller, and knows what makes Canadians tick. His innate ability to speak on a variety of topics makes him a great fit for anyone looking for a fresh and honest perspective on the issues facing them today. Each speech made by Murphy is customized to your topic and audience. Plus Ryan Walters, David Kennedy and Julian Fantino. REGISTRATION The registration fee for the Police Leadership 2011 Conference is $385 (plus applicable taxes). The registration cut off date is March 21, 2011. The conference fee includes a reception on Monday evening, lunches on Tuesday and Wednesday, and a banquet dinner on Tuesday. Each participant will receive a "welcome package" upon registration. Register early, as the number of delegates are limited and past conferences have sold out prior to the registration cut-off date. Ron James Stand-up comedian and host of The Ron James Show on CBC. One of this country's most popular and treasured comedians, Ron James has been called "more Canadian than warm mitts on a radiator," by Rick Mercer, and "devastatingly funny and clever" by The Globe and Mail. A straight-talking stand up from the East Coast, James has honed his unique brand of intellectual everyman comedy for the past thirty years. In 2009, after a string of hit CBC specials, he launched his own CBC variety show, The Ron James Show, which quickly became the network's biggest new comedy show in years. Prior to hosting his own CBC show, Ron James spent nine years with Second City, and starred in several CBC specials, including Quest for the West and The Road Between My Ears, which is the CBC's bestselling comedy DVD. His specials routinely draw nearly a million viewers. He's been nominated for a Genie Award, won a Gemini as part of the writing team on This Hour Has 22 Minutes, and was voted the inaugural Canadian Comedian of the Year. James was also the only comedian invited to perform when Conan O'Brien brought his Late Night show to Canada. Simply put, Ron James is one of the funniest, most kinetically charged comedians this country has produced. With rapid-fire jokes and a poet's sensitivity to language, his stand-up sets may be the best gauge going for what it means to be Canadian and what it feels like to live with a unique brand of self-awareness that is shared, coast to coast, by over 30 million people. Razor-sharp, clean, and accessible, James cuts a wide swath through contemporary culture. He draws belly laughs, elicits chin-scratching flashes of insight, and collects rapturous ovations by telling stories from across Canada. Some of the stories are about him; but mostly, they're about us. PAGE 35 Volume 11 Issue 1 - January/February 2011 Advanced Strategic Communications Seminar Speakers and Topics Social Media and Policing in the Digital Age Della Smith, Q Workshops Inc. “Social Media: Promise or Peril” With the introduction of Social Media networks, how people get information has changed forever. There is no longer a single source of accurate information. People are relying on their peers for information and trusting what they learn online rather than traditional media or corporations. Social media is fast, interactive, unrestricted, and freewheeling. It has democratized communication. It has also changed policing. Tim Burrows, Toronto Police Service “Media Relations Officer” Facebook, Twitter, and YouTube are not only ways to deliver information about the police agency but also an effective investigative tool and key in operational strategies. However, the policing world has to manage the competing interests of security, reputation, privacy, and public interest. Kim Bolan, The Vancouver Sun “The Real Scoop Blog on Crime” The Advanced Strategic Communications Seminar is a two-day pre-conference workshop that will bring social media pioneers to speak about how to tap into this technology and how to develop social media strategies that can be adapted to the policing environment. When: April 10-11 Where: Westin Bayshore, Vancouver, BC Cost: $585 plus HST Space is limited to 200 participants Ron "Cook" Barrett, Capitol Region Gang Prevention Center “Gang Prevention Specialist for NY” David Toddington, Toddington International Inc. “Social Media Intelligence Gathering” Assistant Chief Constable Gordon Scobbie West Midlands Police, UK “UK Policing 2.0 - The Citizen and Digital Engagement” Mary Lynn Youn, UBC School of Journalism “Canada's Media is Changing in a Digital Age” Chris Gailus, Global TV “Anchor 6:00 News” Kyle Friesen, DOJ “Risks and Pitfalls” Eric Weaver, DDB Canada Advertising “Social Marketing: A Profound Cultural Shift” Delegates are responsible for booking their own rooms. The Westin Bayshore has a block of rooms reserved for the Police Leadership 2011 Conference delegates. Reservations should be made by requesting the "Police Leadership Conference" rate. This room rate is being held until March 17, 2011. Book early as the conference rate can only be guaranteed for this block of rooms. If you want more information on the hotel and amenities, you can visit the hotel website at www.westinbayshore.com. In addition, to the conference dates of April 11th to 13th, 2011, the Westin Bayshore has extended conference rates from April 9 to 17, 2011 for those delegates who want to extend their stay either before or after the conference and enjoy the conference rates extended to Police Leadership 2008 Conference delegates only. Rates are $180 in the main building and $182 in the tower (based on single occupancy). The Westin Bayshore, Vancouver, British Columbia HOTEL FAX: (604) 691-6980 HOTEL TELEPHONE: (604) 682-3377 TOLL FREE 1 800 WESTIN 1 E-MAIL: bayshorereservations@westin.com HOTEL RESERVATIONS PAGE 36 Volume 11 Issue 1 - January/February 2011 1;%<=>*1?=0@=A7@ !"#$!!%&'("$)*+#, LEGALLY SPEAKING: !"#$ 2304 7916 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “Sadly, possession of child pornography facilitated through the internet is on the rise. It is an 4#5+ '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ abhorrent crime that victimizes the most vulnerable members of our society and hence the 9'4# #$-+to )"#$%&'('*6+ 5"16-+and 8%"41+ $).-+... A message must go out that this need%9+for/$'8$+ sentences reflect denunciation deterrence. @0,"$:9#56+3'$+5$A05#4$3'$0$,05# sort6&)*#-1+#$-+)"#$%&'()#'%*<+ of conduct will not be tolerated.”– Ontario Court of Appeal in R. v. Nisbet, 2011 ONCA 26 at (##$80/#$BB$=3)$6"#$0'5>#)5? !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Child Pornography Sentencing paras. 1-3, upholding 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ a sentence of six months after police examined the accused’s computer and found a number of files showing children aged 4 to 14 being depicted in all types of sexual activity with other children and adult males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olume 11 Issue 1 - January/February 2011 OFFICER SAFETY CONCERNS MUST BE MORE THAN GENERALIZED & NON-SPECIFIC noticed marihuana and paraphernalia associated with marihuana production. Following the discovery of the grow-operation the accused and his wife were arrested for marihuana production and advised of their rights. A second telewarrant under the R. v. Chuhaniuk, 2010 BCCA 403 Controlled Drugs and Substances Act (CDSA) was obtained now authorizing the police to search the The police obtained a telewarrant “Residence and Outbuildings” on the property. authorizing them to search only the Police located over 1,200 marihuana plants and accused’s “residence” for evidence growing equipment such as lights, timers, air filters, of electricity theft. The property was and fans in the bunker, and 170 marihuana plants, in a rural area, consisted of several bags of marihuana, $14,000 in cash, and various a c r e s , a n d had several outbuildings located a documents from the summer considerable distance from the “[I]f police officers have house. residence. A search team was assembled and during the briefing all reasonable grounds to be At trial in British Columbia officers were made aware that the concerned that there is a Supreme Court the accused warrant was limited to the residence. argued that police lacked Some officers were instructed to go possibility that someone authority to approach and enter the front and back doors while others who poses an immediate risk the outbuildings without a were tasked with securing the to their safety or the safety warrant, breaching his s. 8 outbuildings. Upon their arrival at the Charter right to be free from property police used bolt cutters on a of others is in such other u nreasonable search and locked driveway gate. When police place or premises, then they seizure in doing so. He further knocked at the residence an occupant contended that the evidence answered the door. She was detained can take reasonable steps seized from the outbuildings while the accused, located at the rear to minimize that risk.” after the second warrant was of the residence, was arrested. Other obtained should have been officers immediately approached excluded. The Crown, on the other hand, submitted outbuildings, not covered by the warrant, to allay that there had been no s. 8 breach because the their “safety concerns”. At a shed, an officer saw two police were acting under the exigent circumstances electrical meters mounted at its front and smelled exception found in s. 11(7) of the CDSA and officergrowing marihuana. He could not see inside safety concerns justified the warrantless entry of the because there were no windows and the doors were outbuildings. locked. He obtained a key from the occupant and opened the shed. He saw equipment sometimes The judge found the initial warrant only authorized a used in the marihuana production. search of the main residence on the property, not the outbuildings. He acknowledged that the need for the The officer then went to a garage on the property police to discharge their duties safely could give rise and again detected the odour of marihuana. He to exigent circumstances, but in this case there were entered using a key and heard muffled voices none that would justify the warrantless entries of the coming from a small room where he found a radio outbuildings. After considering s. 24(2) of the playing. He saw a trap door, opened it, and found an Charter the judge admitted the evidence of the grow underground bunker where he discovered a operation in the bunker but the marihuana, cash, marihuana grow-operation. A second officer and documents seized from the summer house were checked a summer house by walking around it and excluded. The accused was convicted of producing looking through the windows. He heard music marihuana and possessing marihuana for the coming from its basement, announced his presence, purpose of trafficking. He was sentenced to a year in and entered, detecting a strong odour of jail. marihuana. No one was inside but the officer PAGE 38 Volume 11 Issue 1 - January/February 2011 Outbuildings Security-Checks The accused then appealed his convictions to the British Columbia Court of Appeal. He accepted that the police had lawful authority to come onto his property under the authority of the first warrant to enter and search his residence. However, he submitted that the police had no authority to examine and enter the outbuildings solely out of a concern for their safety. The Crown, on the other hand, contended that a search warrant authorized the police to enter onto the property named in the warrant and go anywhere on that property. The only limitation imposed, in the Crown’s view, was which places on the property the police could physically enter and search. In its factum on the appeal the Crown wrote: Common sense dictates that where the police have a warrant to search a particular residence at a particular municipal address, the warrant authorizes the police to enter onto the property (or “place”) as specified in the warrant, and to survey the property, including any outbuildings, without necessarily entering into those outbuildings. The warrant authorizes the police to enter onto the property, and into the residence, but not into the outbuildings. This gives the police authority to examine the exterior of the residence and if necessary survey the property to ensure they are not presented with safety risks in approaching, entering and searching the residence. the outbuildings to ensure their safety, the safety concerns were not objectively reasonable. There was no information to suggest that occupants “were violent or in possession of weapons or that they associated with known criminals. Accordingly, the common-law power to minimize any risks associated with the execution of a warrant was not engaged.” While I agree with the Crown that the police had authority to be on the McCoubrey Road property and, as discussed below, that they were entitled to take reasonable steps to ensure their own safety and the safety of others, I do not agree that the warrant clothed them with unfettered authority to “survey” the entire property and “clear” all structures on it. Having said that, I wish to make it clear that I am not saying that it would be unlawful for a police officer to approach another building for the purpose of communicating with someone. For example, had [the corporal] not received a response to his knock on the [man residence] door, he would not have been precluded from going to the outbuildings to try to find someone who could assist him in gaining entry to the residence. This case, however, falls to be decided on what the police did, and their purpose in doing it. [para. 55] And further: The Court of Appeal had a different view however. Justice Frankel, writing the opinion of the Court, found that the officers’ actions in conducting the security checks of the outbuildings, from the outset, amounted to a “search”, were unlawful, and violated s. 8 of the Charter. Although the police honestly believed they needed to conduct a cursory search of I know of no authority for the proposition that a warrant to search one building on a property, without more, gives the police the right to examine the exterior and interior of other buildings on that property without entering them. This is no doubt because to reach such a conclusion would be to seriously diminish the privacy interests the Charter is intended to protect. To accept the Crown’s submission would mean that officers could attempt to look into every building on a property, even ones located “[T]he police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns. Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk..” PAGE 39 Volume 11 Issue 1 - January/February 2011 a considerable distance away from the building named in the warrant and with no apparent connection to the criminal activity under investigation. For example, on the Crown’s theory, had there been a cabin in the woods well away from the clearing in which the [main] residence was located, the police would have been entitled to approach it, examine the exterior, and look through the windows. There can be no question that police officers are acting in the exercise of a lawful duty when they execute a search warrant. The critical issue is whether conducting what I would call “security checks” of places or premises on the same property as the place or premises covered by a warrant is a justifiable use of a power associated with that duty. In my view it is. ... “[P]olice officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties”. Accordingly, if police officers have reasonable grounds to be concerned that there is a possibility that someone who poses an immediate risk to their safety or the safety of others is in such other place or premises, then they can take reasonable steps to minimize that risk. [para. 65] This does not mean that the police cannot take reasonable steps to protect themselves and others during the execution of a search warrant. I recognize, as the Crown pointed out in its submissions, that the execution of warrants can give rise to officer-safety concerns and that those concerns can be heightened when the place being searched is on a multi-structure rural or semi-rural property. However, the interests of law enforcement must be balanced with the rights of members of the public. Exigent Circumstances Under s. 11(7) of the CDSA there is an “exigent circumstances” exception to obtaining a warrant. Exigent circumstances can include situations where there is an imminent danger of the loss, removal, destruction or disappearance of evidence if the search or seizure is delayed or where immediate action is required for the safety of the police: In my view, when a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns. Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk. [paras. 57-59] Clearly, when police officers have the grounds necessary to obtain a warrant and a reasonable basis to believe that the evidence being sought will be lost or destroyed before a warrant can be obtained, they can act without a warrant. ... This approach is similar to that taken with respect to the authority of the police to conduct searches incidental to investigative detentions. In those cases, the police have a common-law power to detain a person for investigation and, in certain circumstances, the police can conduct a limited protective search of a detainee. Similarly, the approach taken with respect to unannounced (i.e., no knock) forced entry into a dwelling-house in the execution of a search warrant was also instructive. In such cases, a no-knock entry can be made in response to concerns for police and occupant safety based on an individualized assessment of the circumstances. The Court continued: Similarly, ... there will be situations where safety concerns will satisfy an exigent circumstances exception to a warrant requirement. [references omitted, paras. 70-71] But not all officer safety concerns will exempt the need for a search warrant. “While safety concerns can trigger a statutory exigent circumstances exception to a warrant requirement, it does not follow that such concerns will always satisfy those exceptions. Those concerns must make obtaining a warrant impracticable,” said Justice Frankel. “I do not accept that officer-safety concerns that arise only upon, and as a result of, the commencement of a search are sufficient to justify that search being conducted without a warrant.” PAGE 40 Volume 11 Issue 1 - January/February 2011 As for s. 11(7) of the CDSA, it does not apply with respect to the shed and the garage for two reasons. The first is that [the officer] began his security checks of those buildings before he had reasonable grounds to believe they contained drugs or evidence of drug-related offences. Accordingly, the first requirement of that provision—reasonable grounds to obtain a warrant—was not met. As for the second requirement—the impracticability of obtaining a warrant—even after [the officer] detected the odour of marihuana outside the shed and garage, there was nothing to indicate that any evidence in those buildings could be lost or destroyed before a warrant could be obtained. BY THE BOOK: Drug Search Warrants s. 11 Controlled Drugs and Substances Act (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (a) a controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed, In so far as the summer house is concerned, [the other officer] similarly did not have reasonable grounds to obtain a warrant when he began his security check of that building. Those grounds only came to light after he entered the premises. [paras. 75-76] (c) offence-related property, or As for officer safety, there was no doubt it is often a concern in marihuana grow operations. Although the Crown need not prove a probability of potential violence to investigators, there must be reasonable grounds for the possibility of violence before exigent circumstances exist for officer safety reasons. Admissibility Although all of the evidence was obtained in violation of s. 8, the Court of Appeal found the evidence from the shed and garage admissible. Police acted out of an honest, but mistaken belief that entry was necessary in the interests of officer safety to check the outbuildings. They then obtained a second warrant after they first entered before conducting a full search of the outbuildings. The expectation of privacy in the shed and garage was low and the production and distribution of marihuana were serious offences, with the public having an interest in the successful prosecution of those who engage in large-scale commercial marihuana-related activity. The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca (d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. ... ... ... (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. “Although marihuana is not a “hard” drug, its production and distribution are serious offences. The public clearly has an interest in the successful prosecution of those who engage in large-scale commercial marihuanarelated activity.” PAGE 41 Volume 11 Issue 1 - January/February 2011 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7@ showing a high rate of speed. This belief was based on his previous experience encountering people taking pictures of themselves engaged in criminal Search Warrants activity. However, he had not seen the accused a camera or reaching for the glove 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “In carrying out [the analysis of the holding compartment. He also felt the accused was so '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ information in an ITO] it is important focused on his driving that he did not notice the %9+ /$'8$+ #$-+throughout )"#$%&'('*6+the5"16-+ 8%"41+ $).-+ him. police car behind to keep in mind !"#$%&'()#'%*+,-.'-/+0#)*1)&1 !"#$ 2304 7916 4#5+ 9'4# @0,"$:9#56+3'$+5$A05#4$3'$0$,05# After scrolling through some "family photos" on the (##$80/#$BB$=3)$6"#$0'5>#)5? camera, the officer came across several photographs 6&)*#-1+#$-+)"#$%&'()#'%*<+ analysis that the warrant is presumed to be valid and the correct question is 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ of the accused and others with firearms. After seeing whether the [accused] has established that there was the photographs the C?$D11$3,,980'65$3=$0$*#"+,1#$0)#$8 #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ officer’s concern for his own safety was heightened because it appeared the no basis for its authorization. This point cannot be %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4$=3 accused had access to firearms. He was also stressed much. The presumption that the-.'1-*8-+ #$)#+ #$-+too)"#$%&'()#'%*+ 7%"6$#+means /'44+ )99%&1+ %9+about #$)#+the possibility $ F0G$!)9# concerned of firearms being left decision of the issuing justice must be upheld unless inside the vehicle as $it was going to be taken to a %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ FAG$H015# local towing3$-+ company’s lot. He then searched the $ the#$-+ applicant meets the5"16-+ burden/$-*+ of demonstrating its #$-+ %9+ )"#$%&'('*6+ 8%*1"8#'*6+ &-.'-/<+ vehicle and found aI?$D5J+'/$0$4)+*#)$63$A13>$+'63$0' cardboard box containing invalidity.”– Ontario Court of Appeal Justice Juriansz in $60,000 (30 bundles x $2,000) inside the hatch@"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ 89)835#$ 3=$ 4#6#)7+'+'/$ 6"#$ R. v. Campbell, ONCA 588 at para. 45. 8%"41+ $).-+ back. He also#$-+ found a backpack containing a loaded /$'8$+ #$-+2010)"#$%&'('*6+ 5"16-+ 6&)*#-1+ 9 mm semi-automatic pistol. 3439)$+5$0$8#)7+55+A1#$5,)##' )"#$%&'()#'%*<+ GOOD FAITH REQUIRES AN '36$#'/0/#$6"#$)+/"6$63$,39'5 At trial in British Columbia Supreme Court the 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# ' %*+'9+7)#'79'-1+ HONESTLY HELD REASONABLE accused was convicted of unauthorized possession M"0)6#) ? BELIEF of a#$-+#%#)4'#A+ restricted weapon in a motor vehicle (the %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B $ F0G$!)9# loaded pistol) and possession of property obtained R. v. Caron, 2011 BCCA 56 %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ $ FAG$H015# by crime (the money). Even if the officer had a )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7 +9"*8#'%*+'7+ $ subjective basis as to why he examined the contents A police officer on highway patrol of the digital evidence of driving at 6"#$ 73 N"+,"$ 8)3*+',#$ "04$ #%+ -D);'*-+duty #$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )*1+ *%#+camera #%+ toB?$gather "clocked" a vehicle on radar high speeds, it was not objectively reasonable. “It traveling at 165 km/h per hour in a (98)#7#$M39)6$3=$M0'040$+'$I 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# and I am concerned $thatF0G$P)+6+5"$M3197A+0Q$ absent evidence of wide emergency lights and siren and practice that persons actually photograph their pursued that vehicle. At one point the vehicle KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q speedometer while they are speeding, I think that it slowed to 120 km/h and crossed over a double$ permit F,G$R'60)+3Q would be dangerous to that type of search to yellow centre line and into the on-coming lane to continue,” said the trial “It is close to the line $ judge. F4G$S9#A#,? pass a truck. The officer followed the vehicle for of what might be legitimate versus indiscriminate approximately two kilometers before it pulled over. fishing for evidence.” Nonetheless, the trial judge The accused, who was the driver and sole occupant T?$!"#$+'=3)706+3'01$496<$+7835 admitted the pistol and money as evidence under s. of the vehicle, was arrested for dangerous driving. 5?CLFAG$3=$6"#$ M"0)6#)$ 24(2) of the Charter. The evidence was non- +5$63$/+ He was advised of his rights, handcuffed, and placed conscriptive and would not undermine fairness. '36+,#$ 3=$ trial 6"#+)$ )+/"65U$ '36$ him in the rear of the police vehicle. The officer As well, the judge found the officer acted in good went back to the accused’s vehicle to look for its #V#),+5#$6"#7?$ faith with an honest subjective belief that the camera registration. He opened the glove compartment but F0G$!)9# of the vehicle’s may have contained $photographs did not find the registration. Instead, he found a speedometer, which, among other things, mitigated digital camera. He turned it on and scrolled through $ FAG$H015# the seriousness of the Charter breach. The offences the photographs in its memory thinking that there !"#$ (#*#'6"$ Z3)6"$ D7#)+,0'$ M3'=#)#',#$ 3'$ ("0J#'$ were very serious, the gun and cash were crucial to might be photographs of the accused’s speedometer W?$D$831+,#$3==+,#)$'##4$'36$70 the Crown’s case, and the exclusion of the evidence P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ www.10-8.ca '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P)+6+5"$ PAGE 42#V8#)65$ >+11$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ 1#/01$6)0,J?$ M34#$ 088)3*#4$ 5,)##'+'/ +'560'60'#3951<$983'$4+5,3*#)+ 01,3"31$ +'$ 6"#+)$ A34