POLICE ACADEMY

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

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

TRINITY OF SPECIFIC,
OBJECTIVE FACTS AMOUNTS
TO ARTICULABLE CAUSE
R. v. Coles, 2002 PESCTD 36
A police officer stopped the accused
after he had followed him drive at a
speed well below the speed limit,
signal well in advance of his turn, and
proceed through a crosswalk just as
a pedestrian entered it. As a result of the interaction
with the driver, the officer formed the opinion he had
sufficient grounds to make a demand for samples of his
breath. Subsequent samples provided were in excess of
the 80mg% limit. At trial, the judge found the
detention was arbitrary and contrary to s.9 of the
Charter. As a consequence, the evidence of impairment
and certificates of analysis were excluded as evidence
and the accused was acquitted. The Crown appealed to
the Prince Edward Island Supreme Court arguing the
judge erred in finding that the accused was arbitrarily
detained.
Supreme Court Justice Campbell framed the question
on appeal as “whether there was satisfactory reason
for the police officer to stop this particular vehicle on
that night, as opposed to any other vehicle on the
road”. Such a reason could arise from either a
“presumed breach of a statutory provision” or from a
common law articulable cause detention. If neither
could be justified, then the detention would be
arbitrary.

Statutory Authority
Unlike other provinces (such as British Columbia and
Ontario), Prince Edward Island’s motor vehicle
legislation does not authorize the random stopping of
motorists. However, s.10(1)(d) of its Highway Traffic
Act does empower the police to stop drivers where
they have a reasonable belief the vehicle is being
operated contrary to the Act. In assessing whether an
officer has a reasonable belief, the Court must look
beyond the subjective belief of the officer (he had an

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July 2002

honestly held belief that an offence had been
committed at the time he stopped the vehicle) and also
consider objective criteria. This objective assessment,
does not however, require the technical assessment of
the precise parameters that would be undertaken by a
court in deciding if the driver was guilty or not. In
other words, “the Crown does not have to prove
“beyond a reasonable doubt” that the officer’s belief
was “reasonable””. Nor is it necessary to determine
that the officer was “correct”; it is simply a test to
determine whether there was an objective foundation
for the officer’s subjective belief.
In this case, the officer’s attention to the vehicle was
heightened because it was traveling below the speed
limit and had prematurely signaled a turn. Although
neither of these actions themselves were offences in
the officer’s mind, the officer did have a reasonable
belief the driver failed to yield to a pedestrian.
Furthermore, s.10(1)(c) of the Act permits a police
officer to direct traffic to ensure safety of the
highway. This would allow the officer to stop the
accused if he believed the accused’s action was a public
safety hazard, which was the case. The stopping of the
accused was therefore not arbitrary, random, or
without foundation.

Common Law Authority
Under the common law, the police may stop persons
where they have an articulable cause, which has been
defined as “a constellation of objectively discernable
facts which give the detaining officer reasonable cause
to suspect that the detainee is criminally implicated in
the activity under investigation1”. In concluding that
the officer had an articulable cause to stop the
accused, Campbell J. stated:
There were three specific, objective, discernable facts,
namely the slow driving, the early signalling, and the
alleged failure to yield that caused the police officer to
select the [accused’s] vehicle. It was not a hunch. It was
not a random stop. There was a rational foundation for
the detention. It was not a[n] arbitrary detention…

1

R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.)

And further:
I am of the opinion that the three specific and
articulable observations, when taken together with
rational inferences from those facts, would constitute
objectively discernible facts and provide reasonable
grounds to suspect the driver to be impaired. The fact
that, subjectively, the officer did not connect the three
observations and suspect impairment does not preclude
finding, on an objective analysis, that there were grounds
to suspect impairment, and therefore, grounds to stop
the [accused].

As a result, the Crown’s appeal was allowed and a new
trial was ordered.

SEIZURE OF DETAINEE’s
CLOTHING 12 HOURS AFTER
ARREST REASONABLE
R. v. Stubinski (No.1), 2002 BCSC 612
Police attended a residence in
response to a 911 call to find a
person, who was being treated by
ambulance attendants outside on the
sidewalk, alleging she was assaulted by the accused who
was apparently inside the home. Several people were
living in the residence, including the accused and the
complainant who slept on a mattress lying on the dining
room floor. They also shared a bathroom with three
other residents of the house. Police knocked on the
door and were told the accused was asleep on the
mattress. The police woke up the accused, confirmed
his identity, and requested he come outside. The
accused was subsequently arrested for assault at 10:20
pm, handcuffed, and transported to the police
detachment. The complainant was further interviewed
at the police office and told police she had been
sexually assaulted. The following morning, at about
9:00 am, the police re-attended the home and
interviewed one of the other residents of the house in
the police car. He reluctantly told police he had seen a
toilet bowl plunger being used in the assault. After the
interview, the officer followed the resident back into
the house and asked where the plunger was. The
resident stated he did not know, but the officer
continued to follow him into a bathroom on the main
floor where he pointed out the plunger. The officer
noted a reddish stain on the handle of the plunger,
which was thought may be blood. Without a warrant,
the officer seized the plunger.

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The officer then returned to the police office at 10:30
am where he asked the accused, who was being
photographed in the identification section, to remove
his shorts. The officer, again without a warrant, seized
the shorts. The accused challenged the admissibility of
the plunger, the DNA evidence derived from it and the
shorts, arguing that the warrantless search and
seizures were unreasonable and violated s. 8 of the
Charter. The Crown countered that the search and
seizures, although warrantless, were nonetheless
reasonable as an incident to lawful arrest.

The Plunger
For a search and/or seizure to be reasonable as an
incident to arrest, the search must be truly incidental
or connected to the arrest. Although the officer had a
proper purpose in searching the bathroom, to discover
evidence, the search did not flow from the arrest the
preceding evening. At or about the time of the arrest,
the police had no intention of searching the residence
and “no effort was made to secure the residence when
the police left it despite the fact other people lived in
the house”. It was not the arrest of the accused that
caused the police to search the bathroom, but the
information received the following day from the other
resident of the house. In short, the search for and
seizure of the plunger was unreasonable because it
flowed from witness information received about eleven
hours after the arrest, not from the arrest itself, and
therefore could not be justified as an incident to
lawful arrest. The plunger and any derivative DNA
evidence resulting from its examination was ruled
inadmissible under s. 24(2) of the Charter.

The Shorts
Although the shorts were seized almost twelve hours
after the arrest, their seizure was incidental to the
arrest. Justice Tysoe opined, at para. 31:
[The accused] was in the custody of the police from the
time of his arrest to the time of the seizure and he was
still being processed at the RCMP Detachment when the
shorts were seized. Although there was a longer period
of time between the arrest and the seizure of the shorts
than there was between the arrest and the seizure of
the plunger, the normal dealings by the police with an
accused person following arrest had not yet come to an
end when the shorts were seized and the seizure formed
part of the arrest process. I rule that the seizure of
the shorts did not violate s. 8 of the Charter.

Complete case available at www.courts.gov.bc.ca

2

REMOVING LUGGAGE FROM
CONVEYOR BELT
UNREASONABLE

apparently as a matter of routine, at the Vancouver
International Airport takes place without the consent of
the travelling public. I do not accept that by checking
their luggage for domestic flights passengers surrender
control of it for all purposes. (emphasis added)

R. v. Truong, 2002 BCCA 315

In this case, the police were acting only on a suspicion
and did not have the authority to take the bag from
the conveyor belt and remove it from the control of
the airline. The seizure was conducted without a
warrant and was therefore unreasonable. However, the
investigatory seizure was minor and the evidence was
admissible under s. 24(2).

The accused and a traveling
companion, who were at an airport’s
departure level awaiting a domestic
flight out, attracted the suspicion
of the police. Their behaviour and
luggage type fit the profile of a drug courier. The
officer who watched them check in contacted other
officers who were located in an area to which their
baggage would be sent along a conveyor belt. The
accused’s bag was removed from the conveyor belt and
set on the ground so that a police dog could sniff the
bag. The dog indicated on the bag and the officers
could also smell the odour of bleach, often used to
mask the smell of marihuana. The accused was arrested
and the bag was opened. In the bag police found 52
pounds of marihuana. At trial, the judge held that
there was no violation of the accused’s s. 8 Charter
right and convicted the accused. The accused appealed,
arguing that the police had no lawful authority to take
control of the bag by removing it from the conveyor
belt and place it on the ground. This, it was suggested,
was a breach of s. 8 and the resultant evidence should
be inadmissible. The constitutionality of the dog sniff
was not argued.
The majority of the British Columbia Court of Appeal
(2:1) held that although the police were acting to
intercept contraband at the airport, at the time the
bag was removed from the conveyor “the police were
acting on a suspicion” and “had no reasonable…grounds
to believe that the [accused] had committed an
offence”. Passengers who check their luggage for
domestic flights do not expect that the police will
handle it for general investigative purposes. They
entrust their luggage to the airline for safe transport
to the intended destination and only properly
conducted searches for security are authorized under
statute (Aeronautics Act, Air Carrier Security
Regulations). However, this statutory power to search
for air safety does not eliminate the right against
intrusions for criminal investigation purposes. Donald J.
stated:
I think most passengers would feel their privacy was
invaded if at the check-in booth the police took away their
luggage to be sniffed by a police dog. What occurs unseen,

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July 2002

Although agreeing with the majority that the evidence
should be admissible, Newbury J. disagreed with the
majority on the analysis of the accused’s privacy
interest in his luggage:
In my view, it would be slicing the cheese too fine to find
that a person checking in for a flight at Vancouver
International Airport would expect that his or her
luggage would be searched for purposes of air safety, but
would nevertheless have a reasonable expectation of
privacy for other purposes. One either has a reduced
expectation of privacy or one does not. Airports are
obvious conduits for the smuggling of everything from
banned seeds and plant materials to currency to illegal
narcotics. To suggest that when one travels by air one
has a lower expectation of privacy because of security
issues but not because of issues of smuggling and illegal
activity, is simply to ignore modern realities.

Newbury J. also noted that if a person can be briefly
detained for investigative purposes on a standard of
articulable cause, a similar standard to move the bag
off the conveyor belt to permit a police dog to sniff it
would also be arguably justified where “objectively
discernable” facts exist. The accused’s appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“The Charter right to silence comes into play when a
person is caught within the state’s control. Underlying
that right is the principle that a person who is detained
by state authority has the continuing right to decide
whether to make a statement to persons in authority,
provide evidence against himself, or remain silent. A
person who is not within the state’s control does not
need protection from the state’s coercive power” 2
BCCA Justice Huddart
2

R. v. M.C.W. 2002 BCCA 341

3

EXPLANATIONS OFFERED IN
COURT IRRELEVANT TO
FORMING OF OPINION
R. v. Harder, 2002 SKQB 216
A police officer observed the
accused’s vehicle weaving within its
lane and barely cross a centre and
shoulder line on four occasions as it
ascended a hill. The officer
activated his lights and the accused promptly came to a
stop. He immediately and without difficulty produced
his licence and registration to the officer. The officer
detected an odour of alcohol coming from the accused
at the time he was seated in his vehicle. Further, the
accused admitted to having consumed alcohol, appeared
docile or perhaps tired, and did not appear to be acting
in a “completely normal manner”. The officer demanded
the accused provide a sample of his breath. Later,
when the officer asked the accused to be seated in the
police car and breath in his direction, the officer
detected an extremely strong odour of liquor. The
accused was convicted at trial of driving with a blood
alcohol level in excess of 80mg% but appealed to the
Saskatchewan Court of Queen’s Bench arguing that the
taking of the samples violated his right to be secure
against unreasonable search and seizure and should be
excluded as evidence because the officer did not have
the necessary reasonable and probable grounds to
demand them.
The test for determining the existence or absence of
reasonable and probable grounds to make a demand was
summarized by Kovach J. as follows:
The Criminal Code requires that an arresting officer must
subjectively have reasonable and probable grounds on
which to base a demand. Those grounds must, in addition,
be justifiable from an objective point of view. That is to
say, a reasonable person placed in the position of the
officer must be able to conclude that there were indeed
reasonable and probable grounds for the demand. On the
other hand, the officer need not demonstrate anything
more than reasonable and probable grounds. Specifically,
the officer is not required to establish a prima facie case
of impaired driving before making a demand.

In assessing whether the officer had reasonable and
probable grounds to make the demand, the trial judge
erroneously considered the strong odour of liquor
detected on the accused’s breath after the demand
was made. Post demand observations cannot be

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considered when reviewing the presence or absence of
reasonable and probable grounds. However, the
difference between the odour detected at the window
and the extremely strong odour detected after the
demand was insufficient to remove the objective
justification for the demand. Even though the trial
judge erred in considering the post demand
observations, the remaining grounds relied upon were
justifiable from an objective point of view. The results
of the breath tests were admissible as evidence.
The accused also testified during the trial voir dire
explaining away many of the officer’s observations
concerning his appearance and driving which were
consistent with sobriety. On this issue, Kovach J.
concluded:
[T]he explanations provided in testimony had not been
proffered to the constable at any time, either prior or
subsequent to the demand. Had the explanations been
proffered, the constable would have been required to
consider them, together with all other information
available to him, prior to formulating his opinion.

The Saskatchewan Court of Queen’s Bench refused to
interfere with the trial judge’s verdict, the accused’s
appeal was dismissed, and the conviction was upheld.
Complete case available at www.lawsociety.sk.ca

59-MINUTE DELAY
BETWEEN ARREST & BREATH
DEMAND PROPER
R. v. Squires,
(2002) Docket: C37147 (OntCA)
A police officer responded to a
report of a rollover accident and
found the accused lying on his back
in a ditch about 15 metres from the
overturned crushed car. As the
accused attempted to sit up, the officer was concerned
about possible injuries and convinced the accused to lie
down. The officer immediately noted blood on the
accused’s face and a smell of an alcoholic beverage as
the accused mumbled “gibberish”. The officer formed
the opinion that the accused was the driver of the
vehicle and arrested him for impaired driving at 1:03
am. Ambulance and fire personnel arrived and the
accused was transported to the hospital arriving at
1:35 am. At 1:56 am the attending physician advised
the officer that he could speak to the accused. The

4

officer then read the accused his right to counsel in
relation to the impaired driving (which he indicated he
understood and declined to contact a lawyer) and the
official warning followed by the breathalyzer demand
at 2:02 am (59 minutes after the arrest). The accused
was presented to a qualified breathalyzer technician
and after three attempts failed to provide a sample.
At trial, the accused was acquitted of impaired driving,
dangerous driving, and refusing to provide a breath
sample because the judge was not satisfied beyond a
reasonable doubt that the accused was the driver of
the vehicle. Despite the officer having reasonable and
probable grounds, the accused was under no legal
obligation to take the breath test because there was
insufficient evidence to support he was the driver. The
Crown successfully appealed to the Ontario Superior
Court of Justice. Frate J. held that the trial judge
erred in concluding that once he formed a reasonable
doubt whether the accused was driving, the accused
was no longer obligated to provide a sample.
Furthermore, even though the demand occurred 59
minutes after the arrest, it was nonetheless made as
soon as practicable under the circumstances. The case
was sent back to the trial judge to enter a conviction
with respect to the refusal to provide a breath sample
and sentence the accused. The accused further
appealed to the Ontario Court of Appeal arguing that
the Superior Court Justice erred in concluding that
the officer had reasonable and probable grounds to
arrest the accused for impaired driving and that the
demand was made as soon as practicable.

Reasonable and Probable Grounds
“Reasonable and probable grounds” under s.254(3) of
the Criminal Code requires a subjective belief by the
officer that must be objectively justified. Here, the
police relied upon an odour of alcohol, glassy eyes,
slurred speech, and disorientation in addition to the
fact there was a crushed car involved in a single vehicle
accident with an injured man lying in a ditch 15 metres
from the car approximately one minute after the
accident; all which occurred on a clear night in a quiet
rural community. Doherty J. for the unanimous Court of
Appeal held that any reasonable person would reach
the conclusion that the officer had reasonable and
probable grounds to arrest the accused for impaired
driving.

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July 2002

As Soon as Practicable
Section 254(3) of the Code requires that the demand
for breath samples be made “forthwith or as soon as
practicable” after the police have formed their opinion
that reasonable and probable grounds exist. Although
the demand was not made “forthwith” (it was made 59
minutes after arrest) it was made “as soon as
practicable” (which has been synonymously interpreted
to mean “within a reasonably prompt time” and not “as
soon as possible”). The officer acted professionally and
humanely when he postponed the additional legal steps
following the arrest in the interest of the accused’s
health. Furthermore, the officer acted in accordance
with the legal requirement that the demand and
Charter warnings be given “once an accused is able to
understand the questions and respond to them in a
meaningful way”. The demand was lawful and the appeal
was dismissed.
Complete case available at www.ontariocourts.on.ca

USE OF 37mm GAS GUN
NEGLIGENT: POLICE PARTIALLY
LIABLE FOR DAMAGES
McLean v. Seisel et al.,
(2002) Docket:98-CV-159410 (OntSCJ)
The plaintiff sued the police as a
result of personal injuries suffered
when she was rendered legally blind
in her left eye after police
discharged tear gas from a 37 mm gas gun in an effort
to apprehend her. Members of the plaintiff’s family
also made claims under Ontario’s Family Law Act for
loss of guidance, care, and companionship. The 33-yearold plaintiff, who was diagnosed with a schizoaffective
disorder, suffered periodic episodes of psychotic
behaviour lasting a few days because she refused to
comply with a drug regimen. Incidents included
wandering in the street, wandering into another
person’s residence, talking to herself, rambling
incoherently, lunging at a police officer with a knife,
setting fire to her apartment, attempting suicide, and
assaulting a 12 year old girl. Inevitably, the police
would be called, she would be apprehended under the
Mental Health Act, taken to a psychiatric facility for
treatment, and released after being treated with
sedatives and psychotic drugs.

5

The plaintiff’s mother, sensing her daughter was
heading for a relapse, called the police to apprehend
her before she deteriorated. The police attended, but
left after determining she was fine. Later that evening
the police re-attended after receiving a complaint that
the plaintiff threatened a neighbour and her children.
Police observed swastikas written with red lipstick on
the plaintiff’s windows, a cross and “666” written in
red lipstick on her door, and fresh white paint on the
door handle. After knocking on the door and
attempting to communicate without success, the
attending officer attempted to open the door but
found it had been barricaded with furniture. Opening
the door slightly, the officer introduced pepper spray
into the apartment hoping the plaintiff would exit as a
result. The plaintiff responded by throwing objects at
and through the door.

“pepper spray” were not used. A firearms and tactics
instructor testifying for the plaintiff provided an
opinion that the muzzle blast was “dangerous and
inappropriate” because there was no real safety
problem for the heavily protected ETF officers with
the 120 lb plaintiff seated on the toilet talking to
herself. The officers could have simply burst through
the door and arrested the plaintiff who would not have
been able to react in time to pose a danger. Another
plaintiff witness, an ex-police officer and former ETF
leader testified the police failed to adequately
negotiate with the plaintiff. Furthermore, the police
failed to comply with their own procedure manual which
endorses the use of tear gas “when all options have
been totally exhausted and negotiations have
completely broken down or if other circumstances
dictate…”.

The officer contacted the Emergency Task Force
(ETF) for assistance and eight ETF officers attended.
The officers entered the apartment and discharged a
37 mm (muzzle blast) gas gun. The plaintiff ran into the
bathroom and locked herself in. A second muzzle blast
was discharged 5 minutes later, from outside the
apartment, through the bathroom window within less
than 3 feet of the plaintiff’s face as the plaintiff was
seated on the toilet. At this time other ETF members
entered the bathroom and took the plaintiff into
custody. It was this second discharge that left the
plaintiff legally blind in her left eye.

In recognizing that the police perform “an unenviable
but necessary service for the protection and safety of
the community and the emotionally disturbed person
involved”, the Court concluded that the police were
partially responsible for the plaintiff’s injuries:

In assessing whether the police were negligent, Dyson
J. of Ontario’s Superior Court of Justice posed the
following questions:
•
•

•

Did the police act reasonably under the
circumstances?
Did they know or ought they to have known that
acting as they did would result in serious injury to
the plaintiff?
Were less lethal approaches to the apprehension
of the plaintiff obvious and available?

Prior to the second discharge of the gas gun, an officer
could hear the plaintiff talking unintelligibly to herself.
She was contained in a very small room, did not pose a
physical threat to the police or herself and at no time
did anyone observe her with a knife in her hand.
Furthermore Dyson J. found other less lethal options
“such as merely making loud vocal noises, putting one’s
face which is covered with a gas mask into the window,
prodding the plaintiff with a baton, or the use of

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July 2002

[T]he firing of the second muzzle blast into the
bathroom was unreasonable, unnecessary, excessive and
constitutes negligence on the part of the police. I find
the police negligent in using the muzzle blast weapon
when less lethal means were available. Further, I find
that the police knew or ought to have known that by
firing the muzzle blast at such close range serious
personal injury was probable. Also, I find that the police
were negligent in failing to follow the prescribed
procedure outlined in their own manual with respect to
mediation.

Having found the police negligent, Dyson J. also found
the plaintiff 50% at fault because it was through her
conscious decision to discontinue drug therapy that
precipitated the behaviour which lead to the police
intervention and the resulting incident. The plaintiff
was awarded $56,500 in damages for pain and
suffering, permanent physical injury, loss of sight,
disfigurement, and psychological trauma. The plaintiff’s
mother received $5,000, the plaintiff’s sister received
$2,000, and the plaintiff’s daughter received $4,000
for loss of guidance, care, and companionship.

Note-able Quote
“You can easily judge the character of a man by how he
treats those who can do nothing for him” Goethe,
18th/19th century German poet, novelist, playwright, and
philosopher

6

SUSPECT NOT DETAINED:
UNDERCOVER POLICE TRICK
ACCEPTABLE
R. v. Cooper, 2002 ABCA 141
The accused, who was convicted of
murdering two children he was
babysitting, appealed his convictions
arguing he was denied his right to
silence under s. 7 of the Charter
and further, that the investigative methods used by
the police were so oppressive his statement was not
voluntary. Following the accused’s arrest, he refused to
make a statement while he was in custody. An
undercover officer was placed in a holding area with
the accused and offered him a place to go after he was
released. Although the accused could have stayed at
other places in town, he chose to go with the
undercover officer and his partner to an apartment
following his release. The undercover officer offered
the accused a couple of “weak” alcoholic beverages and
was questioned repeatedly about the incident. Although
he initially stated he did not want to talk about it, the
accused eventually made an inculpatory statement.
The right to silence protected under s. 7 of the
Charter prevents the police from denying a person,
under their control during the criminal process, the
choice of whether to speak or not. This may include the
use of tricks. In this case, the accused was not
detained, either physically or psychologically, which
would have rendered him under police power.
The common law confessions rule requires that
statements made to persons in authority must be
voluntary. However, the accused was not under the
impression he was speaking to a person in authority and
therefore the confessions rule did not apply. The
appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

POSSESSING A FIREARM: A
PRIVELEGE, NOT A RIGHT
Firearms Act and Reeves, 2002 BCPC 0181
A firearms officer refused an
application for a firearms licence on
the basis of the applicant’s “history”
of violent and criminal behaviour for

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July 2002

the “murder” of his wife 21 years ago. The applicant
sought review of the decision in the Provincial Court of
British Columbia arguing that the firearms officer had
erred. The test on review to the Court was not
whether the judge would or would not grant a licence,
but whether the officer had reasonable grounds for
not granting it. Although the officer improperly used
the word “murder” (he should have used the word
“killing” because the applicant was convicted of
manslaughter), Smith J. found that the possession of a
firearm is a privilege, not a right, and the officer acted
within the scope of his authority and would have been
wrong to grant the licence based on the applicant’s
background. The application was denied.
Complete case available at www.provincialcourt.bc.ca

TIME OF ACCIDENT
INFERRED FROM FACTS
R. v Jinks, 2002 BCPC 0176
A police officer attended the scene
of a single vehicle accident where a
vehicle operated by the accused had
ended up overturned in a ditch a
short distance from a local pub. A
nearby resident attended the accident after hearing
tires squealing and a loud bang. She found a vehicle
flipped upside down in a 10 ft. deep ditch with the
engine running. She yelled for her son to call 911, and
with the help of another motorist, assisted the sole
occupant (the accused) from the driver’s door and out
of the ditch. The accused fell over into some brambles
and mud as he tried to get onto the highway from the
ditch. Paramedics attended and the accused initially
misidentified himself. Following a head-to-toe medical
examination, the accused signed a waiver refusing to go
to the hospital. A police officer soon arrived and spoke
to the ambulance driver who informed the officer that
the accused was the driver and sole occupant of the
vehicle, had alcohol on his breath, had supplied an
incorrect name, had been with the nearby resident
until the ambulance arrived, and had not consumed
anything after the accident. The officer could smell
liquor on the accused’s breath, observed that the
accused was exhibiting poor balance, staggering,
swaying, was talkative, and had watery eyes.
Furthermore, the paramedic who checked over the
accused told the officer there was no medical need to
transport the accused to the hospital against his
wishes.

7

The officer began his investigation, advised the
accused he was being detained for impaired driving and
driving over the legal limit, provided his Charter rights,
and demanded breath samples. The accused argued
that the officer did not have reasonable and probable
grounds to believe that the alleged offences had taken
place within the previous 3 hours, as the demand
section requires. The Crown argued that the only
logical conclusion considering the time of the 911 call,
the instant dispatch of the police, the scene found by
the officer, and that the accused was being treated by
the ambulance attendants was that the accident
occurred within the 3 hour limitation. The trial judge
agreed with the Crown and found the accident had
taken place well within the previous three hours prior
to the officer forming his opinion. Thus, the officer’s
conclusion that care and control occurred within the
preceding 3 hours was reasonable. Moreover, the
officer had the necessary grounds to make the
demand; he observed the accused’s symptoms, which
were objectively sustainable after review. After
considering all of the evidence including that of the
nearby resident, the attending paramedic, and the
police officer, the accused was convicted of impaired
driving.
Complete case available at www.provincialcourt.bc.ca

PASSENGER IN CAR HAS NO
STANDING TO ARGUE s.8
CHARTER BREACH
R. v. Campbell, 2002 ABQB 380

A police officer on foot patrol
observed a car been driven in which
the accused, the front passenger,
was talking on a cellular telephone.
The rear passenger was acting
rather frantically upon seeing the officer. The car
pulled into a park lane near a hotel and the officer saw
a man lean in towards the window of the vehicle. As the
officer walked closer to the vehicle, it sped away with
the driver failing to signal lane changes on at least two
occasions. The foot patrol officer called for assistance
and the vehicle was stopped by other police officers.
While speaking to the occupants, police noted the rear
passenger had difficulty speaking as if he had
something in his mouth. Police subsequently seized two
spitballs of cocaine. The driver/owner of the vehicle
had $240 in his pocket while another $180 was found in

Volume 2 Issue 7
July 2002

his wallet and packaging for cocaine was located under
his seat. A cellular telephone was found on the rear
seat next to the back passenger. Two incoming
telephone calls to the cellular were answered by police
and the callers used language commonly used to
purchase cocaine. The was charged with possession of
cocaine for the purpose of trafficking and possession
of proceeds of crime (cash). The accused argued, in
part, that he had “third party” standing to challenge
the admissibility of the evidence obtained in violation
of the other vehicle occupants’ Charter rights.
Section 8 of the Charter protects a person from
unreasonable search or seizure. This right however,
does not protect a person from all intrusions into their
privacy by the police, but only when they have a
reasonable expectation of privacy. The accused, or
applicant in the exclusion of evidence, must first
establish that they had a personal (or individual)
expectation of privacy in the place searched or item
seized. In using the relevant factors identified by the
Supreme Court of Canada in assessing a reasonable
expectation of privacy, Alberta Court of Queen’s Bench
Justice Lee found that although the accused was in the
front passenger seat of the car using a telephone, he
did not have a reasonable expectation of privacy. He
did not have possession or control of the property, he
did not claim ownership, nor did he have the ability to
regulate access to the vehicle. In rejecting the
accused’s further argument that because he was an
alleged partner in the dial a doper scheme he had “a
reasonable expectation of privacy in the evidence
tendered against him”, the Court held that the
expectation of privacy must be established at the time
of the search, not later on because the rights of two
other persons involved with the accused may have been
infringed. The accused was unable to demonstrate any
identifiable legal interest in the property seized from
the other two persons or from the vehicle. Thus, the
accused “failed to establish…any interest in the
searches conducted…other than a desire to exclude
the evidence” and his application was dismissed.
Complete case available at www.albertacourts.ab.ca

Note-able Quote
“In law a man is guilty when he violates the rights of
others. In ethics he is guilty if he only thinks of doing
so”. Immanuel Kant, 18th century Prussian geographer
and philosopher.

8

KNOCK ON DOOR
TO GATHER EVIDENCE
UNREASONABLE
R.v Boughner,
(2002) Docket:C34662 (OntCA)
Members of a joint forces drug unit
received reliable information that
the accused was a mid-level cocaine
supplier in the area and that a Mr.
Morden was a street level dealer and
one of the accused’s customers. The police conducted
surveillance of a motel where a pickup truck belonging
to the accused was observed. After observing several
vehicles enter the parking lot and the occupants enter
and leave room 29, the police stopped a car leaving the
motel after its passenger entered the unit and exited
2 minutes later and drove away. As the police
approached this car, a passenger swallowed a piece of
paper believed to be a packaged fold of cocaine. No
drugs were recovered. Police continued surveillance of
the motel room and observed the accused (who at the
time they believed was Mr. Morden) leave and return to
the unit. The police did not believe they had sufficient
grounds to obtain a search warrant for the motel unit
because they did not recover any cocaine from the car
they stopped. Shortly before midnight, the police
decided they would knock on the door to identify the
occupants and seek permission to search the room. The
officers intended to “freeze the room” if Mr. Morden
answered the door by using as much force as necessary
to enter and arrest him for a drug offence. The police
would then apply for a search warrant.
The police knocked on the door and when asked who
was there by a man who came to the window, replied
“Mike”. The man opened the door a few inches and the
officer held up his badge and identified himself as a
police officer. The man, appearing shocked, his eyes
nearly doubling in size, slammed the door closed. Police
recognized the man as the accused, kicked in the door
and yelled “Police”. The accused ran to the back of the
room and yelled something about a gun. The officers
vacated the motel room and took cover in the parking
lot. A couple of minutes later the accused emerged
from the motel unit, surrendered to police, and was
arrested for possession of cocaine for the purpose of
trafficking. The police re-entered the room to ensure
there were no other occupants and to search for the
gun. The toilet was running and several items

Volume 2 Issue 7
July 2002

associated with drug trafficking and the use of cocaine
were observed, but the gun was not found. A second
search was conducted and 66 grams of cocaine and
$1000 in cash were found hidden in the bathroom. The
accused’s wife later turned over a loaded handgun she
had removed from the room.
At trial, the accused made a motion to exclude the
cocaine, money, handgun, and drug paraphernalia seized
from the motel room. The trial judge held that the
police seriously breached the accused’s privacy right
under s.8 of the Charter by knocking on the door.
However, he also found that the accused’s reaction at
the door provided exigent circumstances that evidence
might be destroyed and the further utterance about
the gun provided additional grounds for arrest in
relation to a weapons offence. The searches of the
motel room were thus incidental to lawful arrest.
Despite the original breach, the trial judge held that
the exclusion of the drug related evidence was not
warranted. Moreover, the gun was not obtained in a
manner that violated the accused’s rights. It was
turned over to the police after the completion of the
searches, by the accused’s wife who had it in her
possession. Consequently, the accused was convicted.
The accused appealed to the Ontario Court of Appeal
arguing, in part, that the trial judge erred in relying on
the accused’s reaction at the door to provide exigent
circumstances and in finding that he was arrested
lawfully. Further, even if he was lawfully arrested for
drug offences, the search was for a gun and was not a
lawful incident to arrest. Laskin J., writing for the
unanimous appeal Court, found the trial judge erred in
holding that the police entered the room lawfully. In
finding “that the purpose of knocking on the motel
room door was to secure evidence against the
occupants”, the trial judge was correct in concluding
that the door knock was unlawful. Allowing “the police
to “bootstrap” their justification for entering the
motel room based on illegally obtained evidence” was
improper. On the other hand, when the police heard
the accused shout something about a gun the
circumstances facing the police significantly changed
and now involved an “immediate public safety concern”.
Whether the police were entitled to lawfully arrest
the accused at this point was not so clear. Ontario’s
highest court found it unnecessary to conclusively
determine this issue. Even if the trial judge erred in
admitting the evidence, no substantial wrong or
miscarriage of justice occurred. The evidence of the
accused’s wife was sufficient to warrant a conviction

9

without the admission of the physical evidence. The
accused’s conviction appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

POLICE ENTRY TO CHECK FOR
MISSING PERSON UNLAWFUL:
BUT EVIDENCE ADMITTED
R. v. Rhodes, 2002 BCSC 667
The
police,
investigating
the
disappearance of a man, attended
the accused’s residence because it
appeared she was the last person to
see or talk to him and she had his
car and keys. The landlady attended the residence with
the police and agreed to unlock the door. The police
observed that the windows were closed, the curtains
were drawn, and there was no car in the driveway. Prior
to entering, the officers knocked loudly and yelled
“Police” several times. Upon entry, the police found the
body of the missing man in the living room, obviously
the victim of foul play. The police immediately secured
the residence and posted an officer outside. A search
warrant was subsequently obtained on the strength of
the warrantless search. Following the execution of the
warrant, the police took photographs of and videotaped
the crime scene. In addition to the man’s body being
taken from the residence, police seized several items
including an axe with blood matching the victim’s DNA.
During a voire dire on the charge of second degree
murder, the accused argued, among other things, that
the warrantless search of the residence was
unreasonable and that the location, examination, and
identification of the victim’s body was inadmissible.
Furthermore, the axe and other evidence obtained as a
result of the tainted search warrant, along with any
expert or opinion evidence derived from it, should also
be excluded.
One of the attending officers testified he never
considered obtaining a search warrant prior to locating
the body of the victim because he did not know a crime
had been committed nor did he believe he had
reasonable grounds to obtain a warrant. He testified he
entered the residence to check for the victim, the
accused, and her children. He was acting on a hunch and
did not know what he was going to find. The other
officer also did not consider that there was a crime
yet committed and testified she wanted to check the
residence to ensure the accused and her children were

Volume 2 Issue 7
July 2002

not hurt. She chose to enter without a warrant because
the victim was missing for several days under strange
circumstances.
Stromberg-Stein J. of the British Columbia Supreme
Court concluded that the initial entry of the police into
the accused’s residence was a warrantless search
based on a mere suspicion or hunch. As a consequence,
the information obtained from this unreasonable
search must be excised from the information to obtain
the search warrant and without it the warrant could
not be supported. Thus, the searches and seizures at
the accused’s home become warrantless and a breach
of the accused’s s .8 Charter right.
In assessing whether the evidence should nonetheless
be admissible under s. 24(2) of the Charter, the Court
found the police acted in bad faith because “they
knowingly, deliberately, wilfully and flagrantly violated
the sanctity and privacy of the accused’s home”. The
police acknowledged an absence of reasonable grounds
and there was no evidence that the entry was
motivated by a sense of urgency or necessity.
Furthermore, there was no common law or statutory
power permitting the police to enter the accused’s
residence even though the officers believed they had a
common law power to check the residence to see if
anyone was inside, either dead or alive. StrombergStein J. concluded that the obtaining of a search
warrant was not only impracticable, but impossible
because the police had only a mere hunch or suspicion
and not the necessary reasonable grounds. Despite
these findings, the evidence was reluctantly admitted.
Complete case available at www.courts.gov.bc.ca

INCIDENTAL SEIZURE
UNREASONABLE: NOT RELATED
TO ARREST
R. v. Kitaitchik,
(2002) Docket:C32740 (OntCA)
The accused appealed his second
degree murder conviction to the
Ontario Court of Appeal by arguing,
in part, that the trial judge erred in
admitting evidence that was obtained in violation of the
accused’s s. 8 Charter right. The accused, who was a
suspect in the murder, was arrested at his home for
possession of stolen property. A witness had received
some property, belonging to the homicide victim, from

10

the accused and reported this to the police. The day
after the arrest, the accused was taken from his cell
to a private room and asked to remove all of his
clothing. In exchange, the accused was given a fresh
set of clothing obtained from his home. Several fibers
found on the clothing were consistent with a ligature
and sweater found at the murder scene. Although the
investigating officer who ordered the clothing seized
testified he did not have reasonable grounds to arrest
the accused for the murder at the time, he stated that
the seizure related to the murder investigation and not
the possession of stolen property charge. However, he
believed he had the authority to seize the clothing as
an incident to the accused’s arrest for the possession
offence.
The trial judge concluded that the common law power
of search incident to a lawful arrest did not allow the
police to search for or seize items for offences
unrelated to the reason for arrest. Here, the clothing
was seized in relation to the murder and not in relation
to the possession offence for which he was arrested.
The search was not lawful as an incident to arrest and
was thus unreasonable. However, the evidence was
nonetheless admissible under s.24(2) of the Charter.
The accused submitted that the trial judge seriously
misapprehended the seriousness of the Charter breach
and the effect of the exclusion of the evidence on the
administration of justice. He argued that the accused
was subjected to the equivalent of a strip search
resulting in a violation of the most intimate of privacy
rights. In rejecting the argument that the trial judge’s
assessment of the seriousness of the breach was
unreasonable, Doherty J. for the unanimous appeal
Court stated:
[The accused] was not subjected to a strip search as
described in R. v. Golden [(2001) 159 C.C.C. (3d) 449
(S.C.C.)]. While the seizure of his clothing was clearly an
intrusive act, it was not akin to stripping him for the
purpose of viewing or examining his most private areas.
The seizure occurred in a private room with only one
other person present. No force or intimidation was used
and the [accused] was immediately provided with a fresh
set of his own clothing. No attempt was made to examine
the [accused’s] body. The [accused] did not testify on
the voire dire and it is sheer speculation to suggest that
he was somehow humiliated or traumatized by the
seizure.

circumstances, a person has a reduced expectation of
privacy.

The accused further argued that the judge erred in
finding that the officer acted in good faith. He
suggested that the officer should have known that he
was not entitled to seize the clothing for a murder
investigation as an incident to the lawful arrest for a
different charge. Ontario’s highest court stated that
although “it is now clear that the power to seize as an
incident of arrest does not extend to the seizure of
material to provide evidence of an offence other than
the offence for which the person was arrested”, at the
time of the accused’s arrest (1991) the law in this
regard was unsettled. The officer’s belief that he
could seize the clothing was not unreasonable.
Furthermore, Doherty J. went on to add that the s. 8
violation resulted from the investigating officer not
fully appreciating “the impact of the evidence in his
possession and his authority to seize the clothing in
relation to the possession charge”. He stated:
I would add two further considerations. First, even
though the officer testified that he did not have
reasonable and probable grounds to charge the [accused]
with murder at the time he seized the clothing, I think,
on any objective assessment, he had such grounds. There
was a clear basis for inferring that the theft and the
homicide were part of the same transaction. The officer
had very good reason to believe that the [accused] was in
possession of stolen property taken from the victim’s
apartment shortly after the theft and homicide
occurred.
The [accused’s] possession of the stolen
property so close in time to the theft and homicide
provided reasonable and probable grounds to believe that
he was implicated in the homicide. Second, although the
officer did not purport to seize the clothing in relation to
the possession charge on which the [accused] was
arrested, the clothing was capable of providing evidence
to support that charge. If the clothing placed the
[accused] at the scene of the theft, it would provide
cogent support for the charge that he was in possession
of stolen property knowing that the property had been
stolen.

As a result, the appeal court could not find that the
trial judge erred in his assessment of good faith with
respect to the conduct of the police. The appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

And later:
The seizure also occurred after a lawful arrest and the
[accused] was lawfully in police custody. In such

Volume 2 Issue 7
July 2002

11

KICK TO GROIN RUPTURING
TESTICLE NOT EXCESSIVE
Bolianatz v. Edmonton Police Service,
2002 ABQB 284
The plaintiff sued police claiming
damages for assault during an
arrest. The plaintiff got into an
altercation outside a downtown hotel
with a male from whom he had been
earlier ripped off in a drug transaction. A uniformed
police officer observed the plaintiff on top of another
male dealing blows to his head. The officer pulled his
car partly onto the curb, exited his vehicle, identified
himself as a police officer, and shouted at the two to
stop fighting. After the men failed to respond to the
officer’s directions, the officer tried to grab their
arms without success. The officer then grabbed the
two by their collars and tried to separate them. When
ordered to get to the ground, the second male
complied. However, the plaintiff did not comply with
the officer’s demand, braced himself on the police car
with one hand, and grabbed hold of the officer’s gun
belt with the other.
Bar patrons from across the street attended the area
to watch what was occurring. The officer did not know
if these persons were friends of the men but knew he
had to get the situation under control. He considered
calling for backup on his radio, but both his hands were
occupied. He could use the baton or pepper spray on his
belt, but he would have to release the other man who
may have run away, could go after the plaintiff, or
assault the officer. The plaintiff was too close for the
use of pepper spray and the officer did not want to
injure the plaintiff’s eyesor receive splash back, which
would render him defenceless. The officer chose to
kick the plaintiff as hard as he could, striking him in
the groin. The plaintiff was arrested, handcuffed and
subsequently driven home after neither party wished
to pursue charges. As a result of the kick, the
plaintiff’s testicle ruptured and after surgery was the
size of a “pea” which made him feel like a “freak”.

Section 25(1) Criminal Code
Section 25(1) of the Criminal Code provides a defence
to police officers, protecting them from criminal and
civil liability, if they act on reasonable grounds and do
not use unnecessary force. The onus for proving the
justification lies with the police officer using the

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July 2002

force. To claim a defence in s. 5(1) the officer must be
“required or authorized by law to perform an act in
administering or enforcing the law and that he acted on
reasonable grounds”. Reasonable grounds requires
officers believing they have reasonable grounds and
that their belief is objectively established on the
evidence.

Lawful Arrest
Bensler J. of the Alberta Court of Queen’s Bench
concluded that the officer could ground an arrest, thus
be acting lawfully, in three ways:
•

Assault: Section 495(1) of the Criminal Code allows
the police to arrest persons they find committing a
criminal offence. The officer found the plaintiff
on top of the other man getting the better of him
and the arrest was necessary to prevent the
continuation of the assault.

•

Assaulting a peace officer: During the officer’s
intervention, the plaintiff grabbed his gun belt.
This was sufficient to provide the officer with
reasonable grounds to restrain the plaintiff for
the purpose of arresting him for assaulting a peace
officer.

•

Breach of the peace: A breach of the peace
involves “an act or actions which result in actual or
threatened harm to someone or where public alarm
or excitement is caused”. Section 31 of the
Criminal Code allows an officer who witnesses a
breach of the peace to arrest anyone they find
committing the breach or who on reasonable
grounds the officer believes is about to join in or
renew the breach. Furthermore, at common law the
police have the power to arrest or detain persons
for apprehended breaches provided the officer
has reasonable grounds the breach will be imminent
and the risk of occurrence is substantial. In this
case, the assault was clearly a breach and was
attracting the attention of and generating
excitement with the patrons from the bar across
the street. The officer acted reasonably in
believing that a “further breach of the peace was
imminent and that risk that it would occur
substantial”.

Section 27(1) Criminal Code
Section 27(1) of the Criminal Code permits anyone,
including the police, to use force to prevent the

12

commission of an offence likely to cause immediate and
serious injury to a person and for which the person may
be arrested without warrant. Here, the use of force
was necessary to prevent the plaintiff from assaulting
the other man. Assault is an offence for which the
person may be arrested under s.495(1) of the Code and
the continued striking to the victim’s head would likely
cause immediate and serious injury.

Excessive Force
The test for determining whether a police officer used
excessive force will require an examination of a number
of factors including “the seriousness of the offence,
the heat of the moment, the conduct of the offender,
and the availability of other means of arrest”.
However, “an officer is not expected to measure
carefully the exact amount of force that the situation
requires”. The proper test is whether the force was
objectively reasonable from the situation in which the
officer found themselves. In this case, Bensler J.
would “not second guess [the officer’s] decision given
the volatile situation in which he found himself” and
concluded the officer was justified.
Complete case available at www.albertacourts.ab.ca

CHRISTMAS CARDS
DEMONSTRATE ATTITUDE OF
OFFICER
R. v. Detillieux 2002 BCPC 0212
A police officer and strike force
member received information from
two reliable sources that the
accused
was
trafficking
in
methamphetamine and was spending some time in the
area of an apartment known to the officer as an
address where trafficking occurred and where he had
previously arrested two or three people before, one
for a drug offence. The officer was also told that two
other people spending time at this apartment had
outstanding warrants. The officer also received
information from an outside agency that the accused
was wanted on an outstanding warrant for careless use
of a firearm and possession of a restricted weapon
with ammunition. The officer and three other members
set up surveillance on the apartment building to locate
any of the three wanted persons without success. A
week later, the officer was on his way home from the
detachment when he saw the accused wearing a
backpack and headphones leave the apartment building

Volume 2 Issue 7
July 2002

and step out onto the street. The officer drove around
the block, parked his car, and proceeded on foot.
The officer observed the accused speaking to two
young females and a brief hand contact between the
accused and one of the females. When the two females
separated from the accused, the officer who was in his
civilian clothes and in possession of his badge, pepper
spray, and a small flashlight, jogged up to the accused,
and told him he was under arrest for the outstanding
warrant. The officer patted down the accused and
found an address/phone book and a large sum of cash in
his pocket and a cell phone in his jacket. As the officer
began to unzip the accused’s jacket, he said he had a
starter pistol in his pants, which the officer removed.
The accused was Chartered and read the police warning
from a card. The officer telephoned the police
detachment for assistance and while awaiting the
arrival of other officers, searched the accused’s
backpack where he found a large baggie of
methamphetimine. The gun, a starter pistol modified to
fire .22 calibre ammunition, was loaded. The accused
was charged with drug and weapons offences. During
the voire dire, the accused argued that he was
subjected to an unreasonable search and seizure.

The Arrest
The officer testified that he did not have reasonable
grounds to arrest the accused for trafficking prior to
the search. With respect to the arrest warrant, the
officer testified he had not taken steps to update the
status of the warrant since he had received the
information 8 days prior to the arrest. The accused
testified he had met the officer at the courthouse two
days before the arrest and told him he was taking care
of the warrant while the officer confirmed he had
spoken to the accused at the courthouse, but could not
recall the conversation about the warrant. The officer
also agreed in cross examination that part of his duty
as a police officer was to intimidate and scare people in
an effort to create the impression he was watching
them and would get them and send them to jail. The
accused filed as evidence, five Christmas cards the
officer had sent to persons he had arrested for drug
related crimes stating, “We know you’re dealing drugs.
Stop it, or I’ll arrest you”. Pothecary J. held that the
officer, if he had a reasonable belief the warrant was
outstanding, should have arrested the accused at the
courthouse. Furthermore, by not checking on the
status of the warrant after that date, the officer did
not act in good faith. The judge found that the officer

13

deliberately did not call the dispatcher before making
the arrest so he would avoid finding out the warrant
was no longer outstanding. Thus, the arrest was not
lawful.

The Detention
The police are entitled to detain persons for the
purpose of investigation but may only search those
persons for safety reasons, not evidence. The
detention in this case was based on a “narrow suspicion”
and therefore the officer did not have reasonable
grounds to search for evidence of a drug transaction.
Although the officer testified he searched for his
safety, the trial judge held that it was a search for
drugs and not a search for weapons. During the
“apparent pat-down” of the accused, the officer
removed items only logically connected to drugs, not
safety. Furthermore, the officer’s attitude as
demonstrated by the sending of the Christmas cards,
and his description of his police task, showed a
deliberate and flagrant ignoring of persons rights.
Pothecary J. stated:
I am satisfied that [the officer] has taken it upon
himself to “clean up Maple Ridge” and that he believes
this is something he is entitled to do by any means
necessary. I disagree with that interpretation of his job,
his duties and his entitlements. This has caused me to
seriously doubt the objectivity one expects of a trained
and experienced police officer in making his observations,
recording his observations, and later testifying to those
observations when required to do so in court.

The Charter breach was ruled serious and the evidence
was excluded.
Complete case available at www.provincialcourt.bc.ca

SPECULATIVE INCIDENTAL
SEARCH UNREASONABLE:
EVIDENCE NONETHELESS
ADMITTED
R. v. Pniak, 2002 SKQB 202
The accused was stopped for
speeding and found to be a
prohibited driver. He was arrested
and Chartered for driving while
prohibited and searched by an
officer. Noting a bulge in his inside jacket pocket, the
officer reached in and found several grams of loose

Volume 2 Issue 7
July 2002

marihuana. The accused stated the marihuana had been
in his pocket for a long time. As the officer showed it
to his Corporal, the wind blew it away. The accused was
informed he was also under arrest for possession of a
controlled substance. The accused’s vehicle was
searched and the police found three vials containing
Ritalin and Talwin. The accused was then arrested for
possession of a controlled substance for the purpose of
trafficking. At trial, the Court of Queen’s Bench judge
found the search of the vehicle to be unreasonable.

Search Incidental to Arrest
For a search to be reasonable as an incident to a lawful
arrest, the search must be truly incident to arrest. In
this sense, it must be made for safety or evidentiary
reasons. McLellan J. held that the search of the
vehicle to discover more marihuana was “purely
speculative”:
The marihuana had obviously been in the accused’s pocket
for some time. The state of the marihuana did not
suggest any recent usage by the accused. There was no
suggestion that the accused appeared under the
influence of any drug.

Although the police do not require reasonable grounds
to believe they will locate evidence, there must be a
reasonable prospect of finding evidence related to the
charge. They did not and therefore had no valid
purpose incidental to the arrest.

Reasonable Grounds to Search
Warrantless vehicle searches “may be conducted in
circumstances in which an officer has reasonable and
probable grounds to believe the vehicle contains
evidence of the commission of an offence, and exigent
circumstances will not permit the obtaining of a search
warrant”. Acting on a mere suspicion is not sufficient.
The police did not have reasonable grounds to believe
there would likely be more marihuana in the vehicle,
and even if they did, the police had control of the van
and moved it to the detachment. They were not facing
any urgency with respect to the van and could have
obtained a warrant.

Admission of the Evidence
Although the police violated the accused’s right to be
secure against unreasonable search or seizure, the
breach was minimal. A person’s expectation of privacy
with respect to a vehicle is less than a home or their
person and more so when the vehicle is in the control
of the police. The accused was lawfully arrested and

14

was the search was not obtrusive even though it was
based on only suspicion. The evidence was admitted and
the accused was convicted.

ASSAULT BY OFFICER RENDERS
STATEMENT INADMISSIBLE
R. v. Sabri,
(2002) Docket:C34474 (OntCA)

Complete case available at www.lawsociety.sk.ca

OFFICER’s OPINION
SUFFICIENT TO WARRANT
IMPAIRED CONVICTION
R. v. Wadhams, 2002 BCSC 852
A police officer, who observed the
accused stumble into the side of his
truck, enter it, and drive away
erratically, stopped him in his
driveway after he exited his vehicle.
The officer observed that the accused’s eyes were
watery and glassy, the whites were pink, his body was
“rotating”, and he had difficultly removing his licence
from his wallet when requested. The officer also
testified he could smell a faint odour of alcohol but
could not state if it was coming from the accused’s
breath or his clothing. The officer formed the opinion
that the accused was “very drunk” and a breathalyzer
test was unnecessary. The accused was convicted of
impaired driving but appealed to the Supreme Court of
British Columbia arguing there was no evidence (such as
a breathalyzer analysis, a witness testifying he
consumed liquor, or an odour of alcohol on the accused’s
breath) that he was impaired by alcohol. In dismissing
the appeal, Williamson J. held that intoxication is not
such an exceptional condition that only a medical
expert can diagnose it. Ordinary persons may provide
their opinion that a person is drunk. He stated:
Here the police officer formed the opinion the accused
was “very drunk”. He did so, [one] can assume, on the
basis of the various observations he made which were
consistent with a person being drunk. A drunk person is,
given the normal understanding of the word, impaired by
alcohol.

Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Character is like a tree and reputation like its shadow.
The shadow is what we think of it: the tree is the real
thing”. Abraham Lincoln, U.S. president

Volume 2 Issue 7
July 2002

The
accused
and
his
three
companions were arrested by the
police
for
murder
after
an
undercover officer arranged to meet
the accused in a parking lot. During a subsequent
interview, he told the police that the victim fell to the
ground after he had hit the victim in the jaw following
an altercation between the two while walking on the
street. During the trial voire dire, the accused alleged
he was repeatedly assaulted and threatened by the
police following his arrest, which included:
•
•

•

At the scene of the arrest having his face pushed
into the trunk of the police car;
While in the police elevator being punched in the
hip causing a bruise and which injured the wrist of
the officer in the process; and
In the interview room being repeatedly slapped and
threatened to be sent back to Iraq along with his
family if he did not tell the police what happened.

As a consequence, the accused told police what
happened and then repeated his statement on video.
Although the trial judge rejected most of the
accused’s testimony, he concluded that the accused
had been assaulted in the elevator when he was being
escorted to the cell block by the two detectives. The
accused was struck with such force that it bruised the
accused’s hip as depicted in a photograph taken the
following day and caused a cut to the officer’s wrist
under his bracelet. Even though the officer denied
hitting the accused or needing a bandage, a video
recording of the officer interviewing another person an
hour after the elevator incident showed the officer
with a bandage on his right wrist. The bandage was
then missing from the videotaped interview of the
accused and the officer could not provide an
explanation. Despite this finding, the trial judge
concluded that the assault was not sufficiently
connected to the statements to affect their
voluntariness. The statements were held to be
admissible and the accused was convicted of
manslaughter. The accused appealed to the Ontario
Court of Appeal arguing that the trial judge erred in
finding his statements were voluntary.

15

The confessions rule requires that the Crown prove
beyond a reasonable doubt that a statement given to a
person in authority (police officer) was voluntary. In
this case, the finding that the assault occurred was
fatal to the admissibility of the statements.

Credibility
First, the officers’ credibility was adversely affected
by their denial of the assault and the truthfulness of
their entire evidence concerning the first interview
was suspect. Moreover, this concern was amplified by
the fact the accused’s first statement was not
recorded despite the availability of recording
facilities. The trial judge did not subject the officers’
credibility to the same scrutiny as that of the accused.
The officer’s credibility was “seriously undermined”
and the burden of proving the voluntariness of the
statement beyond a reasonable doubt was not
satisfied.

Voluntariness
Second, the trial judge erred in concluding that the
assault was not sufficiently connected to the
statements. The intervening six hours between the
interview and the assault when the accused was in cells
was not sufficient to break a temporal connection. The
same two detectives in the elevator were the ones who
interviewed the accused. There was a reasonable
doubt that the statement was not made without fear
of prejudice. The first statement in the interview room
was not made voluntarily and should have been ruled
inadmissible. Since the second recorded statement was
a derivative of the first, it was also is inadmissible and
a new trial was ordered.
Complete case available at www.ontariocourts.on.ca

ARTICULABLE CAUSE VEHICLE
SEIZURE REASONABLE
R. v. Hart, 2002 BCSC 659
The police were investigating a
report by two 5 and 7 year old girls
who were playing near their rural
homes that they were taken and
placed in car, driven to a secluded
area, and were sexually assaulted. The suspect was
described as a tall, slim white male, with blue eyes and
blond hair pulled back in a pony tail and wearing a green
jacket, black shirt, black jeans, and a large belt buckle.
The vehicle driven by the suspect was described as a

Volume 2 Issue 7
July 2002

small grey four door with red seats, a black dash, black
steering wheel, and a container between the front seat
holding CD’s. The following day the police attended a
local restaurant at a service station complex and found
the accused, who matched eight of ten suspect
descriptors, seated at a table with three other
persons. After speaking with the suspect, this person
identified himself and indicated he drove a grey 1987
Chevrolet Spectrum that was parked in the parking lot.
An officer went to the parking lot and located a 1987
four door grey Chevrolet Spectrum with dark red seat
covers and a box of CD’s on the front floor.
As a result, the police requested the accused
accompany them to the station to provide a statement.
When he told the police he would drive himself to the
detachment, the officer told him they would prefer he
accompany them. He agreed, returned to his
companions, gave his car keys to a friend, and asked
him to take the vehicle home. As the friend approached
the vehicle, the police, who were watching it, told him
the vehicle wasn’t going anywhere. The vehicle was
subsequently towed to and secured at the police
identification bay. Following the interview, the accused
was arrested and his clothing was seized. The next day,
a search warrant was obtained for the vehicle.
A voire dire was held to determine the admissibility of
evidence (including forensic evidence) obtained from
the search of the car and the seizure of the accused’s
clothing. The police officers testified they did not
have reasonable grounds to arrest the accused at the
restaurant nor did they had enough grounds to obtain a
search warrant. However, the police felt they had
exigent circumstances and that they should secure the
vehicle but not search it. It was not until the interview
with the accused that the police felt they had
reasonable grounds to obtain a search warrant. The
accused argued that at the time the police seized the
car in the parking lot, they did so unlawfully and
committed a theft; they did not have reasonable
grounds and were acting unlawfully. Further,
information obtained from conversations with the
accused that was subsequently ruled inadmissible (see
R. v. Hart, 2002 BCSC 634) was used to support both
the search warrant and the subsequent arrest.

The Seizure of the Car
Warrantless seizures are prima facie unreasonable and
the Crown bears the burden of proving that the seizure
was reasonable. The vehicle was seized at the
restaurant when the police denied the accused’s friend

16

access to it. Although the police did not have
reasonable grounds to arrest, the British Columbia
Supreme Court concluded that they did have an
articulable cause to detain the vehicle to preserve
potential evidence while seeking judicial authorization.
Parret J. stated:
In my view, the concept of articulable cause exists in this
country and, although an exercise of such power must be
exceedingly rare given the parameters of the Charter, I
find that the seizure of the accused’s vehicle in the
particular circumstances of this case was a valid exercise
of this power.
I find the seizure in the circumstances of the present
case to be directly analogous to the securing of a
potential crime scene while the investigation proceeds. I
find that the seizure, within the first of the three
prerequisites outlined by Lamer, C.J.C., in Casalake,
[(1998), 121 C.C.C. (3d) 97 (S.C.C.)], was authorized by
law.
The authorities are legion that speak of the diminished
or lower expectation of privacy that attaches to motor
vehicles. When that diminished expectation of privacy is
balanced against the state’s interest in law enforcement
and the investigation of serious offences, the balance, in
this instance, falls very much on the side of the
authorities. In addition, the seizure in this case was
utilized for the express and limited purpose of
preserving potential evidence and no search was
conducted until a judicial authorization was obtained on
the basis of an Information to Obtain which disclosed
full details of the seizure.
I find that the seizure of the accused’s vehicle in the
unique circumstances of this case does not constitute a
breach of the accused’s s. 8 Charter rights. I further
find that the seizure in the circumstances was a
reasonable step taken to preserve what might well be
crucial and sensitive evidence.

The Search Warrant
The accused argued that the search warrant was “an
attempt to paper over an unlawful act”. Search
warrants are presumed valid and the burden in
challenging a warrant rests with the accused who must
establish that there was no basis upon which the
justice should have been satisfied in the existence of
reasonable grounds. Even though the statement made
by the accused was ruled inadmissible and must be
excluded from the information used to support the
warrant, there remained ample evidence upon which a
search warrant could be properly issued. The warrant
was valid and the search it authorized did not violate
s.8 of the Charter.

Volume 2 Issue 7
July 2002

The Seizure of Clothing
The accused submitted that the arrest was founded
upon the statements unlawfully obtained by the police
and the arrest was therefore unlawful. As a
consequence, the seizure of the accused’s clothing was
unreasonable and should be excluded. In describing the
power of arrest, Parret J. stated:
A peace officer is empowered by the provisions of s. 495
of the Criminal Code to arrest without warrant “ . . . a
person . . . who, on reasonable and probable grounds, he
believes has committed . . . an indictable offence”. There
are two aspects to determining whether or not an arrest
is valid; the first is a subjective belief on the part of the
police officer that reasonable and probable grounds
existed for the arrest; and secondly, the requirement
that, viewed objectively, such grounds existed. This
latter requirement is met by applying the test of
whether a reasonable person standing in the shoes of the
officer, would have believed that reasonable and
probable grounds to make the arrest existed.

At the time of arrest, the officer believed he had
reasonable grounds. Furthermore, the objective
information available to the police was sufficient to
constitute reasonable grounds and a reasonable person
with the same information would have believed
reasonable grounds existed. Although the objective
criteria may have existed before the officer made the
arrest, it did not affect the arrest’s validity. The
detention may have affected the admissibility of other
conversations but it did not render the arrest invalid
where proper grounds excised. The arrest and
subsequent seizure of the accused’s clothing incidental
to the arrest was lawful.
Complete case available at www.courts.gov.bc.ca

8 MINUTE DELAY IN TAKING
BREATH SAMPLES AS SOON AS
PRACTICABLE
R. v. Cresswell,
(2002) Docket:C37055 (OntCA)
A police officer demanded the accused
provide a sample of his breath into a
roadside screening device. Because the
device did not work, a replacement was
delivered to the officer 15 minutes
later and the accused failed. He was arrested for
driving over 80mg% and read his right to counsel
followed by the breathalyzer demand. The accused was

17

transported to the police station where he was
permitted to call his father 8 minutes after arrival.
The breathalyzer technician was taking samples from
another person and 10 minutes expired between the
time of this persons last sample and when the
technician began the input process on the intoxilyzer in
anticipation of the accused’s samples. The accused
provided samples of 150mg% and 140mg%. At trial, the
accused was convicted of over 80mg% but appealed to
the Ontario Superior Court of Justice arguing that the
samples were not taken as soon as practicable and the
delay was unexplained.
Hockin J. concluded that the there was only an 8
minute delay from the time the accused completed his
call to his father and the time the technician began the
intoxilyzer set up process. The legal test is not “the
very earliest moment” and the Crown was not required
to account for each minute. Further, absent express
language in the Criminal Code, there is no requirement
that a technician with two persons from whom samples
are to be taken must be received at once even though
the machine is technically capable of it. The accused
further appealed to the Ontario Court of Appeal again
contending that the samples were not taken as soon as
practicable. Although the appeal court granted a new
trial on a credibility issue, it held that the lower courts
did not err in finding that the samples were taken “as
soon as practicable” despite the eight minute delay
from the end of the accused’s telephone conversation
and the time the set-up began
Complete case available at www.ontariocourts.on.ca

STAY NOT WARRANTED
DESPITE POLICE ASSAULT
R. v. Madeley,
(2002) Docket:C29491 (OntCA)
The accused appealed his first
degree murder conviction for the
shooting death of his 14 year old
girlfriend’s grandmother to the
Ontario Court of Appeal, arguing, in part, that the trial
judge should have stayed the proceedings. During an
interrogation following the accused’s arrest, one of the
investigating officers assaulted him while demanding he
reveal the whereabouts of the murder weapon. The
accused told the police where he had discarded the gun
and they subsequently recovered it. While the police
officers discussed erasing the videotape and denying

Volume 2 Issue 7
July 2002

the assault, they took no action. Although, the Crown
learned of the incident and disclosed a copy of the
videotape to the accused, they did not disclose the
police discussions about denying the incident until after
the trial had proceeded. The officer who assaulted
the accused subsequently plead guilty to assault and
the others involved in the discussions to destroy the
tape were disciplined under Ontario’s Police Services
Act. At trial, the judge excluded as evidence the
videotaped interview, an audio-taped interview
revealing the whereabouts of the gun, the rifle itself,
and other evidence. The accused brought a motion for
a stay of proceedings alleging the breaches of the
accused’s ss. 7 and 10(b) Charter rights along with the
actions of the police and Crown constituted an abuse of
process which impeded his ability to make full answer
and defence. The trial judge concluded that the police
conduct in this case, although “blatant and
inexcusable”, did not justify the extraordinary remedy
of a stay of proceedings. On further appeal, Carthy J.
for a unanimous Ontario Court of Appeal was unable to
conclude that the trial judge’s decision would be an
injustice. The appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

STRIP SEARCH
UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. B.B., 2002 BCCA 388
A
police
officer
received
information from another officer
that a previously proven reliable
source told him that the accused, a
young offender, was in possession of cocaine, carried it
in his underpants, and would be dealing it by using a cell
phone from a red Chevy Sprint registered to a “J.M.”.
The accused was known to the officer, from casual
street sources, as a cocaine dealer and he had dealt
with him on a previous file. The officer, in the company
of a police cadet and civilian ride along, observed the
accused later that evening driving a vehicle matching
the description provided. The vehicle was stopped and
found to be registered to “J.M.”. As the officer
approached the car, he observed the accused turn off
a cell phone. The officer detained the accused under
the Controlled Drugs and Substances Act and
conducted a strip search by asking the accused to take
down his pants and underwear in the car. The officer

18

noticed a plastic baggie, subsequently found to contain
nine flaps of cocaine, in the accused’s genital area. The
cocaine and some cash, which was also found, were
seized. The accused was arrested and charged with
possession of cocaine for the purpose of trafficking.
At trial, the judge found that the officer had
reasonable grounds to detain and search the accused
based on the detailed information received by the
officer earlier that day. The informant was reliable and
had previously provided useful information in the past
and the events that unfolded were also consistent with
the tip. Finally, there was information from the casual
street sources that the accused was a drug dealer.
Concerning the need for the strip search in the car,
the trial judge accepted the three reasons advanced by
the officer:
1.

2.

3.

if the information had turned out to be incorrect,
the accused would be on his way and would not have
to be taken down to the station to be searched;
it was very busy and there was a limited number of
officers working. The officer did not feel justified
in taking the accused to the station and going
through the process of booking him in; and
the need to protect the evidence from possible
destruction by the accused during the drive to the
station.

tip were reinforced by the events as they unfolded, and
the additional information possessed by [the officer] as
to [the accused’s] reputation as a drug dealer, were
factors which the trial judge was entitled to consider in
determining whether the detention was justified.

Unreasonable Search or Seizure
In light of the Supreme Court of Canada’s decision in R.
v. Golden 2001 SCC 833, the accused submitted that
there were no exigent circumstances to strip search
the accused in the field rather than at the police
station, a five minute drive away. In the absence of
such grounds, it was argued the search amounted to an
unreasonable search and seizure. In the case of a field
strip search, the onus is on the Crown to prove that
there are reasonable grounds to believe a strip search
is warranted as well as exigent circumstances
justifying the search be conducted on the street prior
to being transported to the police station. In this case,
the reasons provided by the officer were not
sufficient to meet the onus, and the search was
unreasonable. Prowse J. wrote:
In my view, the reasons [the officer] gave for strip
searching [the accused] at the scene, rather than at the
police station did not meet the requirements for a lawful
strip search as an incident of arrest set forth in Golden.
It cannot be justification for a strip search in the field
that, if the search turns out to be negative, the citizen
searched can then go on his or her way. This rationale
suggests that a strip search is really a way of doing
detained citizens a favour by saving them a possible trip
to the police station. I think it is fair to say that the
majority of citizens would rather be spared the favour.
In fact, the evidence here is to the effect that [the
officer] was motivated by the desire to save himself a
trip to the police station, if possible, in order to avoid
the time and paper work which such a trip would involve.
Had there been evidence of a significant need for his
services at the time of this arrest, beyond the usual
requirements of patrol duty, that would have been a valid
consideration
in
determining
whether
exigent
circumstances existed which justified a search in the
field. There was, however, no such evidence of exigent
circumstances here. Further, there is no evidence of a
concern that [the accused] might be armed; nor is there
any persuasive evidence that [the accused] could have
disposed of the cocaine while being taken from his car to
the police station. Presumably he would have been
handcuffed in such a manner as to prevent him from
removing anything from his pants. He would also have
been in the custody of [the officer] and in the company
of the ride-along, who could have kept him under

Further, the trial judge found the search was
conducted in a reasonable manner. The accused
remained in the car in a very dark area where there
was little traffic and the officer stood in the open
door of the car between the accused and anyone who
may come by. The evidence was admitted and the
accused was convicted. The accused appealed his
conviction to the British Columbia Court of Appeal
arguing, among other grounds, that the police violated
the accused’s rights to be free from arbitrary
detention and to be secure against unreasonable search
and seizure.

Arbitrary Detention
The accused alleged that there was no evidence
allowing the Court to objectively assess the reliability
of the informant. Prowse J., for the unanimous court,
dismissed this ground of appeal. She concluded that,
although the evidence supporting reasonable grounds
was borderline, the trial judge did not err:
The detailed nature of the tip, the fact that it was
provided a short time before [the accused] was spotted
by [the officer], the extent to which the details of the

Volume 2 Issue 7
July 2002

3

See Volume 1 Issue 13 of this publication.

19

observation for the short drive to the police station.

Despite this holding, the Court nonetheless admitted
the evidence:
While I am troubled by the extent to which the
admission of evidence following a Charter breach may be
seen as trivializing the breach in a case such as this, I am
unable to conclude that the admission of this evidence in
these circumstances would bring the administration of
justice into disrepute. It is common ground that the
cocaine was real evidence which would have been
discovered in any event and that its admission would not
affect the fairness of the trial. There is no suggestion
that [the officer] was acting in bad faith. In that
regard, it is relevant that the police at that time did not
have the benefit of the analysis in Golden. Further, the
manner in which the search was carried out, although
undoubtedly invasive, was such that [the accused’s]
privacy was protected as much as possible. In that
regard, I note that [the officer] asked his ride-along
partner to move out of visual range; he asked [the
accused] to remove as little of his clothing as the
information he had been provided as to the location of
the drugs required; he did not require [the accused] to
step out of the car; there was limited lighting and no
passenger traffic, or evidence of other traffic, in the
area at the time; and the search did not involve the use
of actual force. While I would regard the breach as
serious, despite these factors, I conclude that it was not
sufficiently serious to warrant excluding the evidence.
Certainly, I would not describe the search as a flagrant
violation of [the accused’s] rights.

Complete case available at www.courts.gov.bc.ca

SENTENCE REDUCTION
AS A REMEDY TO CHARTER
BREACH REJECTED
R. v. Carpenter, 2002 BCCA 301
The accused was charged and
convicted of importing a controlled
substance into Canada when he
swallowed 1.3 pounds of heroin
pellets in Thailand, boarded a plane,
and returned to Vancouver. Although he was convicted,
the Court found his rights under ss. 8 and 10(b) of the
Charter had been violated. Although the inculpatory
statement provided to the police was excluded4, the
heroin was admitted under s. 24(2) of the Charter and
the accused received a six-year sentence. The accused
appealed his sentence, in part, by arguing that the
4

breaches that did not result in the exclusion of the
heroin against him should then, as an appropriate
remedy under s. 24(1) of the Charter, result in a
reduction to his sentence.
In a two-to-one decision, the majority of the British
Columbia Court of Appeal rejected this argument.
Newbury J. (Smith J. concurring) held that such an
approach would improperly shift the focus of
sentencing from the accused and the offence he
committed to the non-serious Charter breaches
committed by the Customs officers.
Sentences
blunted by a Charter breach may well not be
proportionate to the gravity of the offence or the
degree of offender responsibility and would have even
more serious implications if the offender is a danger to
society. Newbury J. opined:
I also have concerns that on a practical level, it would be
stretching judicial resources to their limit if the door
were to be opened widely to arguments of this kind in
sentencing hearings. In the real world, such hearings
would be prolonged and complicated by the raising of
minor and even trivial allegations of Charter breaches in
hopes that the result would be a reduction in sentences.

Donald J., on the other hand, concluded that the
Charter violations should be recognized in the
calculation of an appropriate sentence and result in a
sentence reduction if the breach mitigated the
offence or imposed a hardship. He expressed
disagreement that the s. 24(2) analysis exhausted the
alternatives for a Charter breach and precluded a
reduction in sentence as a remedy. The strip search, xrays, and laxatives provided to the accused which
resulted in the Charter breaches were” a hardship or
penalty suffered by the [accused]” for which he was
not credited on sentencing. Even though the breaches
did not warrant the exclusion of evidence, they must
be factored into the overall punishment of the accused.
Donald J. held that a reduction in sentence for the
violations did not indicate a reduced culpability in the
offence, but appropriately balanced the penalty so the
accused would not be over-punished. He would have
reduced the accused’s sentence to five years.
Complete case available at www.courts.gov.bc.ca

For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca

See conviction appeal: R. v. Carpenter 2001 BCCA 31.

Volume 2 Issue 7
July 2002

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