A Journal Devoted to Topical Policing and Legal Issues for Operational Police Officers in British Columbia

Vol. 48 No. 2

Justice Institute of British Columbia - Police Academy

April, 1997

Moore v. The Queen Revisited
Sheila Sullivan, B.A., LLB. (Police Academy)

Remember Moore v. The
Queen, 1 the 1978 Supreme Court
of Canada ("SCC") decision about
the bicyclist who went through the
red light in Victoria? If you went
through training at the Police
Academy since that time, you have
probably been told that it is an
important case. I remembered the
case from my Academy days, but I
recently discovered that I really did
not know its significance, nor did
anyone else I asked. So I read the
Moore case and realized why its
importance had been stressed in
training. The purpose of this article
is to revisit the significance of this
judgment for operational police
officers.

Facts
A Victoria police constable observed Mr. Moore riding his bicycle
through a red light at an intersection in Victoria, B.C., contrary to the
provincial Motor Vehicle Act. 2 The
constable then attempted to stop
Moore in order to give him a ticket
for that offence. After much trouble (Moore refused to stop), the constable was successful in stopping
Moore; however, he refused to identify himself and attempted to leave.

THIS ISSUE
Moore v. The Queen ........................ 1
Show and Tell ................................. 3
Bridging the Gap ............................ 5
Operational Notes ........................... 8

After a brief struggle, Moore was handcuffed and arrested for obstructing a
police officer.
Moore was acquitted at trial, the
judge holding that, since Moore had
no statutory duty to identify himself,
there was no evidence that he was
willfully obstructing a police officer.
The B.C. Court of Appeal ("BCCA")3
and the
both held that the trial
judge was in error, and that Moore's
failure to identify himself in the circumstances of the case was sufficient to
constitute obstruction of a peace officer. A new trial was ordered.

sec

"Willfully Obstructing"
The central issue in the Moore case
was whether the failure to identify oneself when found committing a provincial offence can amount to obstructing a police officer under the Criminal
Code4 ("Obstruct PO"). Both the
BCCA and the SCC distinguished between a case where the police officer
is attempting to enforce a law which
the officer observed the suspect to
break (as in the Moore case), in which
case failure to identify oneself will
amount to obstruction, versus a case
where the police observe a subject
acting suspiciously, but had no
grounds upon which to arrest or otherwise charge the subject, in which
case failure to identify oneself does
not amount to obstruction.
The BCCA rejected the argument
that Moore was entitled to refuse to
identify himself as part of his privilege
against self-incrimination. The BCCA
held that, although the privilege

against self-incrimination would apply in a case where a police officer is
conducting an investigation with no
ascertained suspect (and failure to
identify oneself would not amount to
obstruction), on the facts in Moore,
it was simply a case of attaching the
correct name to an ascertained offender. ·5
The BCCA found that establishing the identity of a person that a constable finds committing an offence is
an essential part of policing for the
purposes of adequately enforcing not
only the criminal law, but provincial
laws and municipal bylaws as well. 6
The BCCA further held that the common law requires a person so caught
to answer questions regarding identity and to answer them truthfully. 7 Mr.
Justice Carrothers put it this way:
... where the peace officer has
directly observed the commission of the offense, has cornered
the very culprit seen by him to
commit the offense, and all that
remains is to identify the culprit
for summary kerbside [sic]
"ticketing" purposes and thus
bring
the
offender
to
justice .... [a]bsent that identification, the peace officer's duty
would be completely frustrated. 8
The SCC agreed with the BCCA's
reasoning and held that in the circumstances of Moore, where the constable had observed the offence, captured the offender and was attempting to issue him a ticket, failure to
identify oneself would amount to

1

Editor:
Craig MacMillan, B.A., M.A., LL.B. (B.C. Bar)

"willfully obstructing:' 9 Mr. Justice
Spence, writing for the majority of the
sec, said:

Associate Editors:
Robert J. Hull (Director, Police Academy)
Paul N. Tinsley, B.A., M.A. (Police Academy)

Editorial Board:
JackL. Gibson, LL.B. (Crown Counsel)
James W. Jardine, Q.C. (B.C. Bar)
Robert Kroeker, B.A., LL.B. (Saanich P.O.)
Darryl Plecas, Ed.D. (U.C.F.V.)
Judge K.J. Scherling (B.C. Provincial Court)
Harry Stevens, Ph.D. (Police Psychologist)
Sheila Sullivan, B.A., LL.B. (Police Academy)
A. Jeffrey Wright, B.A., M.A., LL.B. (RCMP)

... I am of the opinion that the
officer was under a duty to attempt to identify the wrongdoer
and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance
of his duties. 10

Power to Arrest For
Provincial Offense

Technical Assistant:
Robyn Towle, Police Academy (528-5779)

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(ISSN:0840-8254)

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2

While it was the obstruction question the courts were called upon to
answer in Moore, and the knowledge
that the obstruct provisions do apply
is useful to operational police officers, the case is persuasive authority
for a still more useful proposition: that
police may, in certain cases, arrest
offenders for offences against provincial statutes even if there is no arrest authority in the provincial statute creating the offence.
In deciding Moore, the judges of
both the BCCA11 and the SCC 12 discussed the application of s. 101 of
the provincial Summary Conviction
Act (nows. 122 of the provincial Offence Act13 ). While the comments by
the judges are, strictly speaking,
obiter dictum (they were not necessary to decide the case and are not·
binding as precedent) they are still
persuasive, and coming from the
sec, would probably be applied in
circumstances similar to the Moore
case.
Section 122 of the Offence Act is
difficult to read and I do not propose
to recite it here. Generally, it says
that for the purpose of provincial offences, the provisions of the Criminal Code respecting summary conviction offences apply. For our purposes, this means that a provincial
offence can be treated the same as
summary conviction offences under
the Criminal Code, and that the provisions in the Criminal Code which
relate to summary conviction offences apply to provincial offences.

Of specific relevance in the Moore
case were a peace officer's powers
of arrest for summary conviction offences. Powers of arrest for peace
officers are laid out in ss. 495(1) and
(2) of the Criminal Code. 14 According
to these provisions, a peace officer
may arrest a person for a summary
conviction offence if: (1) the peace
officer found the accused committing
it, and (2) the arrest is necessary for
the purpose of establishing identity. 15
The BCCA in Moore noted that,
by virtue of the statutory provision in
the Summary Conviction Act (now the
Offence Act), the Criminal Code provisions regarding a peace officer's
powers of arrest apply to provincial
offences, which are treated as summary conviction offences. 16 The
BCCA went on to note that, as a result of the combined effect of these
provisions, the duty of the arresting
officer was to identify Moore in order
to ticket him; and failing that, to arrest him.17
The SCC did not dwell on this issue; however, the majority concurred
with the BCCA's interpretation of this
section of the Summary Conviction
Act and found that once Moore failed
to identify himself, the arresting officer could have arrested Moore for
the summary conviction offence of
proceeding against a red light at an
intersection if it were necessary to
establish his identity. 18 There is no
reason to believe that this rationale
would not apply to all provincial offences for which there is no other
statutory power of arrest.

Conclusion
Despite an extensive search
have not located any cases which
have criticized or rejected the reasoning in Moore. Consequently, even in
the wake of the Charter (which postdates Moore) it appears to remain
"good law" on both the obstruct question and the application of the Criminal Code summary conviction offence
arrest provisions to provincial offences.
As a result of the Moore case, a

peace officer who finds someone
committing a provincial offence may
arrest that offender if the offender
refuses to identify her or himself. In
such circumstances the officer has
authority to arrest for: 1) the provincial offence (e.g. red light at intersection) by the combined operation of
the Offence Act and the Criminal
Code, or 2) for the Criminal Code offence of Obstruct PO. In either case
the peace officer must, as in all detentions, Charter and warn the offender. If at any point in the process
the offender decides to cooperate and
satisfactorily identifies him or herself,
the investigator must release the person in accordance with s.495(2) of the
Criminal Code and retains discretion
whether to charge the offender solely
for the provincial offence, for the
Obstruct PO offence, or both. 19 If the
·offender continues to fail to identify
her or himself, it may be necessary
to hold the offender for court and
complete a Report to Crown Counsel
for the original offence, including details about the failure to identify and
the reasons for arrest.
One last observation. Although the
courts in Moore did not address the
issue specifically, there is no reason
to suspect that the other enumerated
grounds in s.495(2) could not be relied upon to found an arrest in appropriate circumstances. Therefore,
where a peace officer finds a person
committing an offence against a provincial statute and the arrest of that
person is required to: 1) secure or preserve evidence of or relating to the
offence, or 2) prevent the continuation or repetition of the offence or the
commission of another offence, the
arrest would be authorized by the
combined operation of the Offence
Act and Criminal Code. It is my hope
that in revisiting the Moore case I
have identified and emphasized its
usefulness for operational officers.

Endnotes

c.c.c.

1 · (1978), 43
(2d) 83.
2 · R.S.B.C. 1960, C. 253 (as it then was); now

R.S.B.C. 1979, c. 288 (as amended).
3. (1977), 36 c.c.c. (2d) 481.

4 · At the time Obstruct PO was s. 118 of the
Criminal Code, it is currently s. 129(a) of the
Criminal Code, R.S.C. 1985, c. C-46 (as
amended).
5 - Supra, note 3.
6 · Ibid., at486-487.
1 · Ibid., at 487.
8 · Ibid., at 491.
9 · Supra, note 1 at 89-90.
10· Ibid., at 90.
11. Supra, note 3 at 492.
12 . Supra, note 1 at 88.
1
3· R.S.B.C. 1960, c. 373; R.S.8.C. 1979, c.
305 (as amended).
14
· Section 450 of the Criminal Code at the time
of the Moore case.
15
· Section 495(1) which gives a peace officer
the power to arrest a person without a warrant

for a criminal offence (which includes both indictable and summary conviction offences) if the
peace officer finds committing and section 495(2)
limits the power of arrest for summary conviction offences, inter alia, to those cases where
arrest is necessary to establish the offender's
identity, secure or preserve evidence, or prevent
a continuation or repetition of the offence or the
commission of another offence.
16
· Supra, note 3 at 492.
17· Ibid.
18
· Supra, note 1 at 89.
19
-Dependirig on the circumstances and what
charges the investigator is contemplating, modes
of release could include release with the intention to compel appearance by way of summons,
a provincial or federal Appearance Notice, or a
Violation Ticket.

Show and Tell: Disclosure
in Criminal Cases
A.Jeffrey Wright, B.A., M.A., LLB. (RCMP Commerical Crime)

As a general rule police officers
do not concern themselves with the
names of cases that, over time, wind
their way through the court system
until finally the Supreme Court of
Canada ("SCC") releases a decision.
From time to time, however, the
release of a finding imprints that
case name into the minds of all
police officers. Such a name is that
of Stinchcombe. The SCC released
its unanimous decision in the case
of R. v Stinchcombe1 in November
1991, and altered forever the rules
concerning disclosure in criminal
cases. This article will review the
principles of disclosure that were set
out in Stinchcombe, and the
obligations it placed on police
officers.

Background
Not everyone may be familiar with
the facts of the case. Stinchcombe
was a Calgary lawyer charged with
breach of trust, theft and fraud for
allegedly using funds, held in trust for
a client, for a purpose other than that
which was intended.
At the
preliminary inquiry his secretary gave
evidence favourable to the Defence.
She was subsequently interviewed by
the police on two separate occasions;
once following the preliminary and

once during the trial. While Crown
advised Defence prior to the trial that
the secretary had provided a tape
recorded statement, Crown refused to
divulge the contents of the statement.
Further, the trial judge rejected
Defence requests that Crown be
ordered to disclose the statements,
and requests that either the Court or
the Crown call the witness to give
evidence.
Stinchcombe was
convicted at trial and his appeal to the
Alberta Court of Appeal was
dismissed. The matter was then
appealed to the SCC. The issue to be
determined was what duty the Crown
had to disclose information, and what
types of information had to be
disclosed to the Defence or accused
in a criminal prosecution.
At the core of the disclosure issue
were concepts integral to our justice
system:
the presumption of
innocence, the Crown's obligation to
see that justice is done and not merely
register a conviction, the right of an
accused to know the case against him
or her, the right to put forward a
defence, and, not insignificant, the
application of "the principles of
fundamental justice" as embodied in
section 7 of the Charter. After
examining the history of the issue of
Crown disclosure in criminal cases,
noting that full disclosure was already

3

taking place (to varying degrees) in
many jurisdictions, and noting the
practice of full disclosure in civil
proceedings, the sec found it
relatively easy to conclude that the
disputed material in the Stinchcombe
case should have been made
available to the Defence and,
therefore, ordered a new trial. As
Sopinka J., speaking for the Court,
noted:
It is difficult to justify the
position which clings to the
notion that the Crown has no
legal duty to disclose all
relevant information. The
arguments against the
existence of such a duty are
groundless while those in
favour, are, in my view,
overwhelming. 2

The Principles
Apart from certain exceptions
noted below, the result of tliis
decision is that an accused is entitled
to all relevant information in the
possession of the Crown so as not
to impede "the ability of the accused
to make full answer and defence."3
In addition, it cannot be forgotten that
"the obligation to disclose is a
continuing one and disclosure must
be completed when additional
information is received."4 There are
exceptions to the disclosure rule,
including: a) when it would not be in
the public interest for the information
to be disclosed;5 b) when disclosure
would jeopardize the identity or
safety of an informant, 6 c) when
disclosure would hamper an ongoing
investigation or the integrity of police
investigative techniques; and d)
when disclosure would breach a
recognized legal privilege (e.g.
solicitor-client privilege).
The key term to determining what
information must be disclosed by the
police and Crown is "relevance."
What relevance means in the
criminal context is whether the
particular piece of information could
possibly have a bearing on any

4

material issue to be dealt with in
relation to the specific case. As is
obvious, that is a fairly low threshold
test. Relevant material would include
all statements provided to the police
or Crown; whether or not the Crown
intended to ever call that particular
person as a witness, but would not
necessarily include the names of all
persons spoken to during the
investigation if some of those persons
were unable to supply any information
concerning the offence. Relevant
information may also include the
criminal record, if any, of Crown
witnesses. For example, if an
individual was charged with theftfrom
his or her employer and one of the
witnesses for the Crown was another
company employee, it may be
relevant for the Defence to be aware
that the witness has been convicted
of a similar ("integrity") offence.
Conversely, in the same case, it
would not necessarily be relevant for
the Defence to be aware that another
Crown witness had been convicted
of an offence unrelated to theft/
integrity; such as Causing a
Disturbance. The SCC dealt with the
issue of relevance in the case of R.
v. Egger stating that:
One measure of the relevance
of information in the Crown's
hands is its usefulness to the
defence: if it is of some use, it
is relevant and should be
disclosed ... This requires a
determination by the reviewing
Judge that production of the
information can reasonably be
used by the accused either in
meeting the case for the Crown,
advancing a defence or
otherwise in making a decision
which may affect the conduct of
the defence such as, for
example, whether to call
evidence. 7
The wording of the Stinchcombe
decision does not state that the Crown
is obligated to disclose only relevant
material, rather, the decision
expresses the Crown obligation in the
negative: Crown's obligation is to

disclose all material except that
which is "clearly irrelevant:•s This
language has the effect of increasing
the burden on the Crown (and police)
to disclose material of even
questionable relevance.
That
obligation is made clear by the
passage in the judgment which notes
that "the Crown must err on the side
of inclusion."9
The Crown Counsel Policy
Manua/for British Columbia outlines
how disclosure is to be accomplished
in this province. When the police
submit a Report to Crown Counsel it
should contain all relevant
information in the possession of the
police. Included with that package
of material should be the facts of the
case as they are known, the written
statements or "will says" of all
persons proposed .to be called as
witnesses, copies of any documents,
exhibits, authorizations or warrants,
and copies of any investigative notes
made by officers involved in the
investigation. The package should
also include relevant information in
the possession of the police even if
it is not intended to be used as part
of the Crown's case. This would
include statements or "will says" of
persons spoken to by the police, who
had knowledge of the offence or
circumstances surrounding it, but
whom the police or Crown do not
intend to call as witnesses. Should
the case concern one of the
exceptions to disclosure (e.g.
informant, investigative technique,
public interest, or privilege) it is
crucial that the Crown be informed
so that the appropriate decisions can
be made and no improper disclosure
will take place.
All disclosure in this province
should take place through the Crown.
If the police are faced with a request
for disclosure direct from the Defence
the request should be referred back
to Crown. It is Crown that has the
responsibility for determining the
relevance of any material requested
by the Defence. Defence may
request further disclosure from . the
Crown on a certain point. If Crown
feels the material is clearly irrelevant

the request can be denied at that
point. If Crown cannot establish the
relevance or lack thereof based on
the request itself the police will be
asked to supply the information to
Crown. If Crown then determines that
the material is relevant it will be
supplied to Defence. If Crown
determines the material is not
relevant then, depending on the
nature of the evidence they can, or
may be obligated to, withhold it. Any
disputes at that point are to be
resolved before the trial judge.
It has been argued that the
disclosure requirements from
Stinchcombe and the related cases
that have followed have placed an
onerous burden on the Crown and the
police and have done nothing more
than permit the Defence to tailor
strategy to correspond with material
that it knows the Crown controls. This
author believes that this is not the
case. On the contrary, experience
has often shown that the more
information that is initially supplied to
Crown for transmission to Defence
the less likelihood that the Crown, and
thus the investigating officer, will be
faced with providing further
information in the future. Experience
has also shown that the more
complete the information supplied to
Defence initially, the greater the
likelihood of either a plea or, at the
least, an ability to focus the issues to
be dealt with during the trial; thus
shortening the trial process itself. The
more you show and tell, the quicker
Defence will likely conclude that
running a trial may not be the best
option.
Endnotes
'· (No. 1), (1991 ), 68 C.C.C. (3d) 1.
· Ibid., at 7.
3
" Ibid., at 9.
•· Ibid., at 14.
s. See particularly, ss. 37, 38, and 39 of the
Canada Evidence Act; R.S.C. 1985, c. C-5 (as
amended).
s. See R. v. Archer (1989), 47 C.C.C. (3d) 567
(Alta. C.A.); R. v. Scott, [1990] 3 S.C.R. 979.
'· (1993), 82 C.C.C. 193 at 204. See also, R. v.
Chaplin (1995), 96 C.C.C. (3d) 225.
a. Supra, note 1 at 9.
9
"/bid., at 11.
2

Bridging the Gap - Who Provides
Legal Advice to the Police?
Craig S. MacMillan, B.A., M.A., LLB (BC Bar)
Stephen N. S. Thatcher, B.A., LLB. (BC Bar)

It cannot be assumed that law
enforcement agencies in British
Columbia receive effective and
independent legal advice on
operational and policy issu es.
Police agencies in this province
receive legal services in a
patchwork manner. In a time of
increased public scrutiny of police
conduct,
complicated
and
conflicting legal decisions,
legislation and policy, this is a wholly
unsatisfactory circumstance. Apart
from exposing police agencies and
their individual officers to increasing
legal jeopardy, it does little to
enhance the prospects of a wellregarded law enforcement model.
This article will argue the
inappropriateness of the status quo
and propose a solution.
Despite the public's belief that
the police are purely preventers and
investigators of crime, police
responsibilities extend far beyond
that mandate. As we all know,
performing even common police
functions can be fraught with
complications, some of which an
investigator may not even realise
exist. Consider the legal direction
required to manage the everchanging law surrounding police
obligations under the Charter (e.g.
search and seizure), complicated
statutory amendments (e.g. Part VI
authorizations), conflicting and
ambiguous legislative obligations
(e.g. legislation governing police
records 1 ),
developing
civil
responsibilities (e.g. duty to notify2 )
and detailed policy statements from
governmental bodies (e.g. Attorney
General guidelines on- relationship
violence 3 ). The need for legal
advice by police agencies to support
operational and policy decision
making is self-evident. The real
issue to be resolved is who should
provide the police with that advice?

The Separation of
Investigations & Prosecutions
A common misconception is that
provincial Crown Counsel (and federal
Crown Counsel) who prosecute
offences provide the police with
general legal advice. The Crown
Counsel Policy Manual states that
'While Crown Counsel is expected to
provide legal advice to the police
regarding cases and general policy, the
police should be advised to seek
advice from their own· counsel
regarding questions about their own
conduct or behaviour."4 In practice,
this statement has been interpreted to
mean that Crown Counsel do not
provide general operational or policy
legal advice to the police. Outside of
statutorily mandated situations where
Crown Counsel has some involvement
during an "investigation" (e.g. Part VI
authorizations), they will generally only
provide legal advice concerning
specific files for which a Report to
Crown Counsel has already been
submitted.
Crown Counsel in British Columbia
do not see it as their role to provide
general legal advice to the police. The
reasons for this are sound and
supportable. Our policing and
prosecution model is founded upon the
separation between the police that
investigate and the Crown that
charges/prosecutes. 5 The role of
Crown Counsel is independently to
assess and present the evidence
gathered by the police in a fair
manner. 6 Crown Counsel are not
advocates for the police, nor are the
police their "client." By virtue of this fact
a number of conflicts are avoided.
First, it would be inherently
contradictory for the agency that
provided legal advice during an
investigation (or on operational policy
matters) to also be tasked with making

5

determinations
of
criminal
misconduct against police officers
that followed the advice. Second, if
Crown Counsel advice was provided
to the police, and it was incorrect,
the same agency would be, in effect,
reviewing its own decision and
action. Such scenarios are more
than mere supposition, they have in
fact occurred.7 The other problem,
as some individual police officers
and departments have found out, is
that the advice provided by Crown
Counsel is probably not protected by
solicitor-client privilege. 8

Compromising Police
Independence
In addition to Crown Counsel that
deal with criminal prosecutions, there
are also lawyers at the federal,
provincial and municipal level
("Government Counsel") who act as
in-house legal advisers to those
governments and their various
agencies. The RCMP obtains its
legal advice from the Department of
Justice ("DOJ"). Provincial law
enforcement agencies, such as
CLEU, may obtain legal advice from
the Legal Services Branch of the
Ministry of Attorney General.
Municipal police get some
operational and policy assistance
from municipal legal departments.
This practice has a serious
implication: because Government
Counsel are not acting solely on
behalf of the police agency, it is
immediately apparent that the
"operational independence" of the
police and their investigations are
compromised in several respects. 9
"Politically
sensitive"
investigations provide a clear
example of how operational
independence
is
being
compromised. Reflect on the actual
or perceived position of the Attorney
General of British Columbia during
the Nanaimo Commonwealth
Holding Society investigation by the
RCMP. In this particular case, the
Attorney General is both a member

6

of the political party that is under
investigation, and the member of
Cabinet whose portfolio includes not
only policing, but also the branch
responsible for prosecuting such
cases. Although the RCMP handled
this case and could have consulted
the DOJ on legal issues related to it,
if the responsibility had fallen on a
provincial or municipal law
enforcement agency, how could the
independence of the investigation be
maintained if the department had to
rely on advice from Crown Counsel
or Legal Services Branch? Indeed,
as a result of the real or perceived
lack of independence of provincial
Crown Counsel from the Executive,
there have been renewed calls for the
creation of an independent
prosecution service that is not subject
to the control and direction of the
Attorney General. 10 The same
rationale applies to providing
independent legal services to the
police.
At the federal level, the DOJ, by
statute, is singularly responsible for
providing legal advice to the federal
government and its agencies. 11 The
DOJ's top official, the Minister of
Justice (and ex officio the Attorney
General of Canada), is not only a
member of the political party in power,
but a member of Cabinet. These facts
raise serious concerns about the
control, actual or perceived, that the
federal Attorney General exercises
over RCMP investigations, especially
when the investigation is politically
sensitive (i.e. Airbus). Contrary to the
reported assertion of the Minister of
Justice in a recent speech, RCMP
investigations can be directly or
indirectly influenced by the Minister/
DOJ because it is the body that
provides legal advice to the RCMP. 12
These examples clearly highlight the
potential for political infringement of
"independent'' police investigations,
whether actual or perceived. Failure
to pro'{ide independent legal services
to the police will compromise the
fundamental recommendation by the
Oppal Commission that "The
province enshrine in legislation the
principles that: (a) a police officer is

not subject to direction from any
level of government in deciding
whether to investigate an alleged
offence, how to do so and whether
to recommend that charges be
laid."13
·The role of government is to
govern and to institute laws and
policies intended to implement its
objectives. It must, however, be
remembered that government
legislation and policy (which is not
law) is not always determined to be
lawful or constitutional by the courts.
Often overlooked is that police
agencies may be directed by
legislation (e.g. Child, Family and
Community SeNice Act1 4 and Bill C41 regarding criminal Sentencing
Reform 15 ) and detailed policy
dictates from government bodies
(e.g. Chief Provincial Firearms
Officer policy on revocation of
firearms related documents 16 ) to
take action the lawfulness of which
may be questionable or ambiguous.
While the objectives of these laws
and policies may be desirable, it is
still incumbent on the police to
ensure their conduct is not unlawful
or improper. The problem here is
that the police are required to get
legal advice from the very Crown
or Government Counsel who
advised the government on the
development of the policy and
drafted the legislation in issue. Such
a circumstance is not only
inappropriate, but also clearly
necessitates that law enforcement
agencies obtain independent legal
advice.
Furthermore,
operational
independence may not be sustained
when Government Counsel
represent the interests of the police
in civil matters. The DOJ, while
representing the RCMP, is also
responsible for providing legal
services to other federal agencies
and representing any other interests
the Government of Canada might
have. For example, in a recent civil
case the plaintiff sued the RCMP,
Corrections Canada and the
National Parole Board. 17 The same
DOJ lawyer represented all three

federal agencies. Even if DOJ
supplied separate lawyers or private
counsel (who still report to the DOJ)
for each agency (which is not likely)
and advised them to fight the case in
the best interests of their respective
agency (also unlikely) there would still
be the perception of conflict. The DOJ
is, perhaps appropriately, not
necessarily concerned with the best
outcome for the agencies concerned,
but the best outcome for the
Government of Canada. Analogous
situations exist at the provincial and
municipal
levels.
In
such
circumstances, who is protecting the
best interests of the police agency?
What must be recognized is that
the interests of the police cannot
necessarily be equated with those of
the federal, provincial or municipal
government.
Unlike
some
government functions such as road
repair or even health care, law
enforcement agencies have a unique
role in our society and their functional
independence and accountability
necessitate separate representation.
Otherwise, by design or default, the
separation, independence and
function of the police can be eroded
or subverted by interests that are not
necessarily legitimate.
One final comment must be made
with respect to Government Counsel
providing legal advice to the police.
In a time of shrinking budgets and
personnel
resources,
many
government legal departments simply
do not have the resources to meet
the growing demands of police
agencies. In today's policing
environment, operational police
officers frequently need prompt,
round-the-clock legal advice on
matters that are highly technical and
situationally based. Sound advice in
such circumstances requires
knowledge of investigational
techniques and strategies, an
understanding of the operational
policing environment, and a solid
grounding in areas of the law relevant
to police operations. As a practical
matter, because the demands of
government are so different from the
demands of policing, not all

Government Counsel have the
necessary skills or knowledge to
advise on police matters. While it is
always dangerous to generalize, the
consistent theme encountered by the
authors in speaking with operational
police personnel is dissatisfaction
with both the quality and timeliness
of the legal service provided by their
respective Government Counsel.

Legally Trained Police
Officers
Many police departments have
tried to fill the gap in the delivery of
legal services, to some degree, with
police officers who have law degrees.
Most such arrangements have been
relatively informal, and, until recently,
the appropriateness of using legally
trained police officers to provide legal
advice to a department was not really
questioned. However, the giving of
"legal advice" can constitute the
"practice of law" as defined in s. 1 of
the Legal Profession Act. 18 Unless the
legally trained officer is also a
member of the Law Society of British
Columbia (the "Society''), the member
is engaged in the "unauthorized
practice of law;' a matter the Society
takes very seriously. In the authors'
view, if a legally trained police officer
is providing legal advice to the
department, that officer must be
called to the Bar. Furthermore, in
order to protect the interests of both
the member concerned and the
department, there must be formal
recognition by each that the member
is providing legal services. 19
However, despite their inability to
provide the legal services required in
policing, and despite the actual or
perceived conflict with respect to the
operational independence principle,
Government Counsel (usually citing
policy or statutory authority) zealously
assert that only they can provide legal
advice to the respective police
agency. Such claims seem purely
self-serving, fail to recognize the
important principles at stake, and
ignore the simple steps required to
recognize the legal work that can be

undertaken by legally trained police
officers.

A Proposal
The historic desire that the police
be free from political interference in
conducting investigations must
include the provision of independent
legal advice on operational and policy
matters. The need to be independent
from political interference is not
inconsistent with the general tenets
of political/public accountability of the
police and the provision of
independent legal advice to the
department. In fact, it makes the
chain of accountability clearer. The
need for independence in police
investigations necessitates that
structurally and functionally the police
obtain independent legal advice. As
noted in Police-Challenge 2000:
The legal resources of police
services may have to be
expanded in the future. With the
Charter and the growing legal
accountability of
police
departments, legal advice
concerning
investigative
practices is needed on an
ongoing basis. In the past,
Crown attorneys would be asked
for their advice, but it might now
be necessary to retain lawyers
on staff who could be involved
in the development of police
practices and policies. 20
In the authors' view, the integrity
of police independence and
investigations not only require, but
demand, that legal advice be
obtained from in-house counsel. It is
perhaps in response to this need that
some municipal forces are starting to
bring counsel "in-house:• Curiously,
while there is no shortage of
operational issues for resolution, the
drive to bring counsel in-house for
municipal police agencies was given
momentum by the passage of the
Freedom of Information and
Protection of Privacy Act. 21 This
legislation provides a complex
7

legislative basis for the management
and access of information held by the
government in British Columbia,
including law enforcement agencies.
Most municipal departments of any
size have had to designate a person
whose role it is to oversee their
respective departments' compliance
with the FOIPPA. The Vancouver
Police Department and the Victoria
Police Department originally
devolved the function onto legally
trained police officers, but have since
hired civilian lawyers to oversee their
respective FOi offices.
The
complexity of the FOIPPA and its
interaction with federal and other
provincial legislation raises numerous
legal issues.
After much deliberation and
discussion with other police
colleagues, the authors believe that
the police in British Columbia must
take the initiative to secure the
provision of independent legal
advice. There are a number of
potential models, but based on the
need to maximize limited resources,
the authors recommend that
municipal police departments,
provincial law enforcement agencies
and the RCMP form a police legal
services centre that would be
comprised of police officers that are
called to the Bar and civilian lawyers.
This mixed model would maximize
resources and experience, eliminate
research redundancy that currently
exists, and it would provide ongoing
timely and competent legal and policy
advice on matters affecting. the
police. Another important feature of
this model is that it would ensure that
the police develop and utilize
consistent policy approaches on
important issues such as police
pursuits. Such a modelWould also
be invaluable for providing important
policy papers and research on
proposed policy initiatives that affect
the police. Most importantly, this
model would brush aside any real or
potential allegations of political
interference in police investigations
and restore the operational
independence principle. One thing
is clear: if the police continue to rely
•

8

j

on the current seat-of-the-pantsapproach, and do not move ahead
cooperatively to bridge the gap in the
provision of legal services, the
independence and effectiveness of
law enforcement will be reduced.
Endnotes
1
·Forexample, the YoungOffendersAct, R.S.C.
1985, c. Y-1 (''VOA") record provisions.
2
See, Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R.
(2d) 225 (H.C.J.).
3
· British Columbia Ministry of Attorney General,
Policy on the Criminal Justice System Response
to Violence Against Women and Children (August 1996) ("VAWIR").
4
· British Columbia Ministry of Attorney General, Criminal Justice Branch, Crown Counsel
Policy Manual at No. LEG 1.
5
· See, British Columbia (Stephen Owen, Commissioner), Discretion to Prosecute Inquiry Commissioner's Report(November, 1990).
6
· Boucher v. The Queen (1954), 110 C.C.C.
263 (S.C.C.).
7
· In R. v. Shirose and Campbell (17 January
1997) C20724 & C20725 (O.C.A.) at 30 the
Court harshly criticized the "illegal" (i.e. trafficking) "reverse sting" of the RCMP. The judge
drew the "inference from Corporal Reynold's evi- .
dence that the illegal conduct was authorized at
all levels of the R.C.M.P. and by the Crown law
office .. :'
8
· Ibid., at 35 the Court found that the "legal advice" given to the police by Crown Counsel should
have been disclosed.
9 · A discussion of this basic principle occurs in
British Columbia, Policing in British Columbia
Commission of Inquiry, Closing the Gap: Policing and the Community (1994) at B5-6 ("Oppal
Commission").
10. Gil McKinnon and Keith Hamilton, ''The Need
For An Independent Prosecution Service in B.C."
(1997), 55 TheAdvocate37.
11
Department of Justice Act, R.S.C. 1985, c.
J-2, SS. 4-5.
12
· Elizabeth Raymer, "Rock Defends role in Airbus affair," The Lawyers Weekly, 14 February
1997 (vol. 16 no. 37) at 2.
13
· Supra, note 9, Oppal Commission at B-6.
14
· S.B.C. 1994, c. 27. Many believe thats.
96(1 )(a) of the Act imposes an obligation on the
RCMP to disclose information when it does not.
Issues about the interaction and jurisdiction of
provincial and federal privacy legislation and the
YOA, as well as the authority of the Director to
impose obligations I direct the police, and the
use of force authority, have been raised.
15
· An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof.
Section 734(6) and 7 41 (2) have been questioned
as to the authority to seize money, while the authority to arrest individuals under ss. 7 42-742. 7
have been similarly questioned.
16
· Province of British Columbia, Chief Provincial Firearms Officer Instruction BC-5,
Revoca.tions has been questioned on certain aspects as to its legal validity. The validity of the

VAWIR policy, which essentially mandates that
the police hold individuals arrested for domestic
violence in custody, has been questioned in light
of Criminal Code and Charter principles about
release.
17
· The Estate of Dennis Fichtenberg, deceased, by the personal representative of said
estate, Marjean Fichtenberg v. The Attorney
General of Canada et al., (1995) Van. Reg.
C954683 (B.C.S.C.).
18
· S.B.C. 1987, c.25.
19
· If not recognized as providing legal services
as part of their duties, legally trained officers
could be found to be acting outside the scope of
their duties and therefore, not subject to indemnification from the employer. Further, since "government counsel,'' which includes police officers giving legal advice to their department, are
not covered by the legal insurance scheme for
lawyers, they would be personally liable in a civil
action. Legally trained police officers that do not
address these issues are leaving themselves
exposed to allegations of professional misconduct and financial responsibility that could be
devastating.
20
· Solicitor General of Canada, A Vision of the
Future of Policing in Canada: Police-Challenged .
2000 (Discussion Paper) (Ottawa: Minster of
Supply and Services, 1990) at 34.
21
·S.B.C. 1992, c. 61 (as amended) ("FOIPPA").

Operational Notes
R. v.. Cook (BCCA)
Ruled that Canadian police officers must
administer the Charter when questioning suspects in a foreign jurisdiction.
R. v.. Hutchings (BCCA)
Held that the use of a forward looking
infrared radar (FUR) device on a helicopter to detect a marihuna operation in a
barn was not unconstitutional because
there was no reasonable expectation of
privacy in the circumstance.
R. v.. Cyr (BCSC)
When a police officer could not visually
identify the accused in court, the accused
was ordered by the court to remove his
shirt to reveal identifying tattoos. The
tatoos could be used for identification.

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