J

I

ISSUES

OF
INTEREST
VOLUME I«>. 12

Written by John H. Post

ISSUES OF DTDEST
(VOLUME IE. 12)
Written by John M. Post
June 1983
TABLE OF cxnmnrrs

CllllTEll OF RIGHTS MD l'REEDOMS
El.Cl.IJSIORAR.Y llJLE • • • • • • • • • • •

THE,

••

••••••••••••••••••••••

1

Regina v. Collins B. C. Court of Appeal
February 1983 CA 821232
R. v. Cohen B. C. Court of Appeal, CA 821475

REGURGITATING CM SECORD BREATH TEST
REFUSING 'l'O GIVE SAMPLE • • • • • • • • • • • •

............ .

•• ••

Regina v. Brown County Court of Westminster
New Westminster Registry X82-8767

DEMAND WITHOUT REASONABLE AND PROBABLE QWURDS
R. v. Thurlow County Court of Yale
Vernon Registry No. 08341

8

...........

9

.............. .

11

....

13

......

15

PASSENGER'S POSSESSION OF A STOLEN CAR. •
The queen v. Terrence Supreme Court of Canada
March 24, 1983
TO SAY VllKN YOU .ARE BOD IS •llEAllSAY•

PROOF or A(;E

••••••••••••••••••••••••

7

Regina v. Botel County Court of Vancouver Island
Nanaimo Registry Cr. 2720 April 1983.

BIT .AllD llJli ••••••••••••••••••••••••••••••••••• , ••

The queen v. Roche

Supreme Court of Canada April 1983

SBLP PIOTECTIOH
VEAPOll DUJGDOUS TO DIE PUBLIC PEACE • • • • • • • •

Regina v. Ali

B. C. Court of Appeal 811156

- ii -

CIWlTER. OP

RIGRTS MD ftUDOMS

DEMARD - TRARSPORr IR POLICE VAGOll - DETDTIOll •••

••••••• 16

Regina v. Morrison Vancouver County Court
March 1983 Registry CC821618.

OVER.SIGHT ml 'DIE PAllT OP POLICE TO IBPOIH
DETAIDD PDSOH OP RIGHT 'm <X>URSEL •••••• •
Regina v. Fugard Vancouver County Court
November 1982 Vancouver Registry CC820806

.......... 18

CRAB.TEil OP RIGHTS ARD REEDOMS
El.BORS IR SIWlCB VARRAMT - llCWSIOll OP EVIDERCE • •
Regina v. Thompson County Court of Yale
March 1983, Kelowna Registry CR95/82

EVIDERCE m 'DIE <X>MTKAl.Y - •IWlACULOOS PACTS•
Regina v. Acheson County Court of Yale
February 1983 Kemloops Registry CC433

19

•

. .......... .

20

CBAllTU OP RIGHTS ARD lUEDOMS
POSSESSIOH OP ll>USE-BREAXING 'l"OOLS
R. v. Holmes
Ontario Court of Appeal, March 1983

....

............... 21

URDEK.COVKll OFFICER. IR <ZLL WITH ACCUSED

...... 22

CRAB.TU OP RIGHTS ARD fllEEDOMS
ADMISSIBILin OP S'IilEKDTS MADE •••••••••••••••
Regina v. Mason B. C. Supreme Court
Vancouver No. CC821292 January 1983
BREATH SAMPLE - AS S>ON AS PRACTICABLE
OFFICEll IELAYED ml ACCOURT OI' ASSISTING PELLOW OPPICEK.
Regina v. Pearce County Court of Westminster
New Westminster Registry X82-8765

••

ROADSIDE PROBIBITIOH m llUVE
DOES ~ OF PROOF 'DIAT SUBSEQUDT ADMIMISTRATIVE
DUTIBS VD.E <X>llPLIED WITH PROVIDE A IEFENCE? ••••••••••
R. v. Hardy B. c. Supreme Court May 1983
Vancouver Registry CC830271

.•....••••...•.. .. .. .........

DUUSS - UHDEK.COVKll OPDATIOll
The Queen v. Gardiner, County Court of Prince Rupert
April 1983 Registry #CC197/12

25

26

27

iii

•oVER 80 KL.• AKI> 'DIE IZFDCK OF AD'!OMATISM •••••••••• •••
R. v. Litchfield County Court of Westminster
April 1983 New Westminster Registry X82-9176
UASONABLE ll>TICK OF <ZR.TIFICATE OP ARALYSIS
R. v. Parker County Court of Vancouver
April 1983 No. CC821536

29

... ........... . 31

CIWlTD. OF RIGHTS ARD PREEDOllS
SDTO"l'OR.Y PRESUMPTION OF •CARE <Ir. <X>RTROL
SECTION 237(l)(a) C.C. - RESUMPTION OF IDOCENCK
Whyte v. Regina County Court of Vancouver,
April 1983 No. CC821405 Vancouver Registry

...........

CAl.ELESS S'l'OR.IMG OF FIREARM ••••••••••••••••••••••••
Regina v. Batalka 70b C.C.C. (2d) 190 (1982)
B. C. Court of Appeal

............

LOITEIWiG - PROSTITUTION
Regina v. Munroe - 1 c.c.c. (3d) 305
County Court - Ontario

33

...........

UASONABLE ll>TICK 'DIAT G&EATER. PERAi.TY IS fl>UGHT • • •
Regina v. Duncan 1 C.C.C. (3d) 444 B.C. Court of Appeal

DEKARD IW>E (ltf PKIVATE PROPERTY
ANALYSIS ILLEGAIJ..Y OBTAIRED INIDEllCK? •••••••••••••
Regina v. Meadows County Court of Yale
Kelowna Registry CR 5/83, April 1983

••

32

34

35

•

36

Al»IISSIBILITY OF STATEMEllT
ACCUSED a.AillS BB WILL ll>T MSVEll (JJESTIONS mn'IL BE BAD
TAJ.DD to LAWYER. BUT a>RTillUES to ANSVEll CJJEST·IOBS • • • •
Regina v. Spearman 70 C.C.C. (2d) 371 (1982)

38

B. C. Court of Appeal
WITBBOLDDIG mEliTITY OF POLICE IllFORHER.
- TJlAFFICltl.RG BY AIDDIG PUKCBASER. OF llUJG? • • • • • • • • • • • • • • • • •
Regina v. Davies 1 c.c.c. (3d) 299 Ontario Court of Appeal

40

- 1 -

CllAR.TER. OF RIGHTS AND FREEDOMS

THE EXCLUSIORAllY KIJLE

Regina v. Collins B. C. Court of Appeal February 1983
R. v. Cohen B. C. Court of Appeal, CA. 821475

CA 821232

Police off ice rs had some people in a pub under surveillance. Two of
them left but the accused and others stayed.
The persons who left
were followed and after they had stopped at a trailer park the
officers stopped their car and found balloons with heroin.
The officers then returned to the pub and approached the accused.
Although the arresting officer conceded that he had no grounds for
believing that she had any drugs or narcotics on her he, because of
being suspicious, grabbed the accused by the throat to prevent her
from swallowing.
The accused's mouth was clear but he saw subsequently that she clenched something in her hand. This turned out to
be a balloon containing heroin.
It was the admissibility of this
heroin the accused disputed on the basis that the search was not one
authorized by law as the officer did not have the reasonable and
probable grounds prerequisite to a legal search.
Section 8 of the Charter of Rights and Freedoms guarantees us to be
secure against unreasonable search while section 24(2) of that Charter
states that evidence obtained by means that infringe on or deny
anyone's rights or freedoms must be excluded. However, the subsection
warns that when considering the admissibility of evidence so obtained,
the judiciary must have regard to all circumstances and consider i f
the admission of evidence so obtained would bring the administration
of justice into disrepute. This issue compelled the courts to give an
interpretation of section 24(2) of the Charter and determine the
degree of the 'exclusionary rule' it creates. This case was decided
by the B. C. Court of Appeal and despite the fact that it is the highest court in our Province, its resolves may well be influential but
are not binding on courts in other provinces. The Supreme Court of
Canada may disagree with these views and its decisions, of course, are
to be followed by all Canadian Courts.
Perhaps the issues raised in the numerous courtroom debates respecting
the exclusionary rule (also known as the poisonous tree principle) in
the U.S. and Canada may .cfepict the dilemma of the judiciary.

2

The basic question is whether fruit of a known poisonous tree is fit
and safe for consumption at the table of evidence. Will its presence
disgrace the table?
Will it shake the confidence of the guests to
such a degree that they doubt the hygiene in the kitchen, question the
competence of the chefs and fear contamination?
The Bible tells us that no good fruit can grow on a poisonous tree.
However, the Good Book also says that it is virtuous not to be wasteful with food.
In the U. S. they apparently found the former text
more compelling that the latter. In Canada we have been m:>re inclined
to consider the poisonous tree text as a warning to be aware and careful of the possibility of poisonous fruit.
However, when the fruit
was tested and found to be good then we, in Canada, used to comply
with the prohibition to discard good food. However, quite separately
from dealing with the harvested fruit, we subsequently paid some
attention to the tree to cure it or to put the axe to it
History of Exclusionary Rule:
The United States Supreme Court established a strict exclusionary rule
for the Federal Courts in 19141 and for the State Courts in 19612.
After a number of warnings to law enforcement off ice rs and other
government authorities, the U. S. Supreme Court felt it had to protect
the public from oppressive enforcement, discipline agents of the State
and doubt their credibility when they had used illegal or surreptitious means to collect evidence, particularly where this amounted to
constitutional contempt. Furthermore, the Court had to protect and
maintain its own image to not only be, but also appear to be, just and
impartial. The judiciary are, afterall, the enforcers of the constitution. By accepting evidence which was obtained by unauthorized and
illegal means the Court would become a party to those means.
Although on the surface, this is a commendable and apparent appropriate position to take by the Courts, the consequences have in some
cases deeply shocked public confidence in the judicial system.
Wigmore, the authority on evidence, wrote the following to demonstrate
the absurdidity of a strict exclusionary rule which he called
"indirect and unnatural"3:
"Titus, you have been found guilty of conducting a
lottery; Flavius, you have confessedly violated the
Constitution.
Titus ought to suffer imprisonment for
crime, and Flavius·for contempt. But no! We shall let
you both go free. We shall not punish Flavius directly
but shall do so by reversing Titus' conviction. "
1 Weeks v. United States (1914) 232 U.S. 383
2 Mapp v. Ohio (1961) 367 U.S. 643.
3 A Treatise on the Anglo-American System of Evidence in Trials at
Common Law

- 3 -

Wigmore obviously ridiculed the absurdity of erasing one person's
wrong because someone else committed another wrong.
Why should each
not be responsible for his own acts? There is evidence that the U.S.
find this exclusionary rule a legal luxury they can no longer afford
and there is considerable activity to modify the strictness of their
exclusionary rule. This, while Canada is getting into an exclusionary
rule the degree of which is still uncertain.
In Canada we had the start of an exclusionary rule in the first few
"rounds" of the well known Wray case4.
In a robbery, Wray had
exchanged the life of a service station attendent for the $55 in the
till.
The murder was committed with a rifle which Wray threw in a
lake or swamp afterwards.
A statement obtained from Wray revealed the location of the rifle and
a ballistics test proved that the retrieved rifle was the murder
weapon. However, numerous improprieties occurred during the interview
and the statement was ruled inadmissible in evidence.
The Ontario
trial Court as well as the Ontario Court of Appeal held that the
exclusion of the statement included all evidence that was obtained as
a result of the information Wray gave police in his statement. This,
of course, included Wray's knowledge of the location of the rifle, the
weapon itself and the results of the ballistics test.
Without this
evidence a conviction was simply not possible in the circumstances.
The Supreme Court of Canada reversed the decision.
It held that,
although the statement was inadmissible (the poisonous tree), the
proven facts discovered as a result of it (the good fruit) were admissible. This, the critics said, removed all inherent judicial discretion to exclude evidence where the illegal means used to obtain it and
the evidentiary value of the proven facts are disproportionate and an
imbalance on the scales of justice.
This judge-made-law remained
unaltered until April 17 of 1982 when the Charter of Rights and
Freedoms became effective and, until this issue is again put to the
Supreme Court of Canada, we will not be able to assess the impact of
section 24 of that Charter.
This Collins case is well suited to address all these issues and the
B. c. Court of Appeal said, in view of section 24 of the Charter:
"No longer is all evidence admissible, regardless of the
means by which it was obtained.
Nor on the other hand,
is all improperly obtained evidence inadmissible.
A
middle ground has.been chosen, but not the middle ground
of discretion that has been chosen in many jurisdictions".

4 R. v. Wray [1971] S.C.R. 272

- 4 -

This of course because the Charter stipulates that the Courts must
have regard to all the circumstances, and i f the admission of such
illegally obtained evidence would bring the administration of justice
into disrepute. The Court said:
"But it is not open to a court in Canada to exclude evidence to discipline the police. We are only to exclude
evidence to avoid the administration of justice being
brought into disrepute". (Emphasis is mine)
The B. C. Court of Appeal held that the accused must show that on the
balance of probabilities his rights or freedoms were violated and
that admission of the evidence obtained by means of such a violation
would bring the administration of justice into disrepute.
Said the
Court:
"It is the admission, not the obtaining, that is the
focus of attention, though the manner of obtaining the
evidence is one of the circumstances".
And later, after concluding that Canadian Courts are not badly
regarded in spite of them having accepted illegally obtained evidence
up until last year, the Court said:
"The United States' experience teaches us that excluding
illegally obtained evidence tends to bring the administration of justice into disrepute, at least where there
is not, on the part of the police, a contempt for constitutional rights".
The B. C. Court of Appeal unanimously decided that the trial judge who
had admitted the evidence of the heroin found in the accused's hand in
circumstances as explained above, was a correct decision.
Since the Court of Appeal agreed,
interesting:

the trial Judge's comments are

"Turning now to the case at Bar, would any ordinary right
thinking person think that seizing and searching a
suspected hard drug trafficker for possession of illicit
drugs be shocking to the community? The answer is self
evident.
Even though search and seizure of the accused
would be regarded ~t law as an unreasonable infringement
of a right provided by section 8 of the Charter, I have
concluded that, having regard to all the circumstances of
this case, police conduct here was not shocking such that
the admission of the evidence derived from these seizures
would necessarily cast the administration of justice into
disrepute".

- 5 -

The Justices of the Court of Appeal wrote separate reasons for judgement, each reaching the same conclusion. The Chief Justice emphasized
the following points in the last paragraph of his judgment:
1.
2.
3.
4.

5.

The constable's suspicion that the accused was in possession of
heroin was proven correct;
The offence alleged against the accused was serious;
The officer was not acting at random or out of malice towards
the accused;
The use of the throat hold was to prevent the loss or destruction of evidence; and
The admission in evidence of the heroin found was not unfair to
the accused:
"Having all these facts before him, he (the trial judge)
decided to admit the only evidence which could convict
her. Without justifying the use of the throat hold as a
general practice, I cannot say that the judge erred in
the circumstances of this case".
Conviction upheld.

The B. C. Court of Appeal, within a few days of dealing with the
Collins case, rendered judgment in an appeal by the Crown in the Cohen
case (CA 821475). In that case the police officers had reasonable and
probable grounds to believe the accused was in possession of cocaine.
The officer 'seized' the accused by her throat. Her mouth was found
to contain nothing nature did not intend to be there, however, in her
purse six packages of cocaine were found. At the preliminary hearing
defence counsel persuaded the judge that the choking amounted to an
unreasonable search, that it was "shocking" to the comm.unity and that
admitting evidence thereby obtained would bring the administration of
justice into disrepute.
Although the search of the purse was lawful
and reasonable, the search of the mouth and the purse, in these circumstances, was held to be one transaction of searching by the provincial court judge.
Knowing how the Judge viewed this issue, defence counsel promptly
applied to re-elect the mode of trial from judge and jury to trial by
magistrate without a jury - to wit by this kind judge. The application was granted, the evidence· so far heard (the remnants of it) was
ordered to be treated as ·evidence at the trial and the charge was dismissed.

6

The Crown and defence counsel conceded that the moment the accused was
seized by the throat she was under arrest and that the search of the
mouth was unreasonable* in the circumstances. However, the Court of
Appeal disagreed that the entire search was one transaction.
The
search of the purse was separate and lawful. Therefore, the discovery
of the cocaine was part of a legal and reasonable· search. The court
did, therefore, not have to rule i f the choke hold (when used to
search the muth) makes the search unreasonable.
Two of the three Justices of the B. C. Court of Appeal held that the
Crown's appeal should be allowed, the acquittal set aside and a new
trial conducted.

*****

* How much bearing this had on the concession made by the Crown is
difficult to infer from the reasons for Judgment but the police
officer testified in cross-examination that his reasonable and
probable grounds were in regards to possession of cocaine. He agreed
that persons hide heroin in their mouth and cenceded ~that he had never
found anyone carrying cocaine in the mouth.

7

REGUKGITATING OH SECO:ND BREATH TEST
UFUSIRG 'lO GIVE SAMPLE
Regina v. Brown
X82-8767

County Court of Westminster

New Westminster Registry

The accused gave, upon demand, an adequate sample of his breath for
the first analysis. No reading could be obtained from what breath he
gave as a second sample. In spite of his testimony at trial that "he
had been trying as hard as he could", he was convicted of refusing to
give a sample of breath.
The accused appealed his conviction on several grounds. The only one
of interest is the accused's claim that there was a lack of proof that
the "instrument" was in proper working order.
The constable had testified that he "got the instrument ready" and had
analyzed one sample of breath given by the accused. For the second
analysis the accused, in the officer's opinion, simply did provide an
inadequate breath sample. However, the accused swore he tried as hard
as he could and the Crown did not prove that the instrument was at
that moment not blocked. The defence asserted that if the accused is
to be believed, it raised the possibility to infer that the instrument
was not properly working, particularly in the absence of any evidence
that for the second test it was in good working order.
The Court did not go along with the defence's theory. It held that in
section 235(1) C.C. the obligation is on the accused to provide "such
a sample of breath as is in the opinion of a qualified technician is
necessary to enable a proper analysis to be made", etc. The Crown had
presented the opinion of a qualified technician that the sample
provided was not adequate and "that is all that was necessary" in the
circumstances.
Accused's appeal dismissed
Conviction upheld.

*****

- 8 -

DEMAND WITHOUT UASONABLE ARD PKOBABLE GROURDS
R. v. Thurlow

County Court of Yale

Vernon Registry

No. 08341

The accused was involved in a motor vehicle accident and admitted to
have consumed some wine with his dinner.
Although he showed no
symptoms of impairment the attending officer demanded samples of the
accused's breath.
The accused complied and a certificate under
section 237(l)(f) C.C. resulted.
The trial Judge had held that a demand under section 235 c.c. can only
be made upon reasonable and probable grounds that the accused had
committed the offence of impaired driving.
The lack of such grounds
meant that the demand was not pursuant to section 235 and, therefore,
the certificate had no evidentiary value.
As a consequence the
accused was acquitted of "over 80 ml.".
The Crown appealed and the County Court Judge saw no reason why the
certificate should not be proof of its content. The demand was purporting to be pursuant to section 235 C.C. and in compliance with a
precedent set by the Supreme Court of Canada*, the certificate was
admissible in evidence as proof of its content.
Appeal allowed
New trial ordered

Note: Although the reasons for judgment do not mention this, it should
be noted that had the accused refused to supply samples of his
breath, the lack of the reasonable and probable grounds prerequisite to the demand could have provided him with a reasonable
excuse for the refusal.

* * * * *

* R. v. Billing (1975) 24 C.C.C. (2d) 81

- 9 -

PASSENGER'S POSSESSION OF A STOLER CAR

The Queen v. Terrence, Supreme Court of Canada

March 24

1983

The seventeen year old accused was invited by a friend to go for a
ride in "his brother-in-law's car". The car, in fact, (a new Camero)
had been stolen that evening from a garage.
The accused testified
that i t was logical for him to believe the car was not stolen as he
knew his friend's brother-in-law had a wreck for a car and was due for
a new one; furthermore his friend had the keys for the car.
The ride ended up at a police roadblock after a chase. When the car
slowed, the accused "rolled out" and escaped across a field.
When tried for possession of stolen property, the Crown had not been
able to contradict the accused's version of what happened or rebut his
claim of no knowledge that the car was stolen.
However, the
Provincial Court Judge "utterly disbelieved" the accused and from that
inferred that the accused had knowledge. In regards to the requisite
ingredients to possession, the trial judge had held that, although the
accused was not the driver, he had, in a sense, control of the car in
that the driver had control with his knowledge and consent.
The Ontario Court of Appeal disagreed with the trial judge and had
held that the essential measure of control necessary to show possession as defined in section 3(4) of the Criminal Code was not present.
The Crown appealed claiming that the accused had culpable possession.
It was proved that the accused was a passenger in the stolen car,
which the Crown claimed he knew to be stolen. He had also consented
to the possession of the vehicle by the other person.
Actually there was no evidence adduced at the trial that the accused
had knowledge that the car was stolen.
This knowledge had been
inferred by the trial judge via the doctrine of recent possession.
Unexplained possession of recently stolen goods entitles the Court to
draw the inference that the person who had possession committed the
crime by which the goods were obtained or had knowledge that they were
so obtained.
When the accused did explain and was "utterly disbelieved", the Court reasoned (based on precedent)* that the disbelieved
evidence is incapable of rebutting the presumption.
In other words,
disbelieved evidence has no evidentiary value.

* R. v. Proudlock [1979] 1 S.C.R. 525.

- 10

The Supreme Court of Canada held
I.

That before the doctrine of recent possession applies, possession has to be proved.
The Crown had failed to do so as it
showed no control of consent on the part of the accused.

2.

Also the accused was not a party to the offence of theft or the
possession of the car as the Crown failed to show that the
accused had a common intention with the thief or the person who
in fact had possession of the car.
Crown's Appeals Dismissed.
Acquittal upheld.

*****

- 11 -

TO SAY VllKR mu ME BORR IS .BEARSAr

PKOOF OF AGE

Vi.pre:

•strf.ctly apeakf.ng one cannot ezactly know bis own
age except upon hearsay inforaatf.on; for be is not
capable of knowing this, or anything, untf.1 an
apprecf.able ti.lie after bi.rth•.
•

Regina v. Botel County Court of Vancouver Island
Cr. 2720 April 1983.

Nanaimo Registry

The accused was charged with having sexual intercourse with a female
person under the age of fourteen years.
The girl's mother was not
available to testify and the Crown produced (besides the girl's testimony) a birth certificate.
The question was the adequacy of this
evidence.
It seems that the Courts have been inclined to accept the evidence of
older persons in respect to their ages and rejected that of the
younger ones while the source of the information is the same for
both.
No one was consciously present at birth and cannot vouch for
the accuracy of the information in regards to date or location. Both
must rely on documents or what was told them. In other words, none of
us can attest to his or her age as we must rely on the credibility of
parent(s) or anyone who was present at our birth.
The experts on evidence have suggested that testimony like "I am 20
years of age" or "I was born on January 1, 1954", should be treated as
a question of "testimonial qualifications" and regarded as admissible
in evidence. Alternatively it can be an exception to the hearsay rule
as "an assertion of the family reputation".
However, the question
remains if this last resort measure should only apply if no family
(direct evidence) is available.
must we do about the above mentioned distinction we make
between the older and the younger generation? Needless to say that in
the "teens" category the age is often more crucial to the charge. For
example, is the person a juvenile; is he under nineteen in a drinking
charge; was the victim under the age of fourteen as in this case.
Nevertheless, to establish age the law of evidence should be the same
for all.

And what

- 12 -

After reviewing numerous cases with these specific and similar evidentiary problems, the Court held:
"The recent authorities support the position taken
by counsel for the Crown, that the individual is
entitled to state in the witness box his or her own
age. It is a question, ultimately, for the jury to
decide whether or not that evidence, plus any other
evidence which is tendered, satisfied the jury
beyond a reasonable doubt as to whether or not the
complainant is under fourteen years of age or is the
age stated".
However, the Court warned that where the witness only knows his or her
age because of what he or she was told, it may not satisfy the judge
of the facts.
In addition, persons who had associated with the complainant in this case, were allowed to give their opinion of her age.

**** *

- 13

HIT Am>. RUN
The Queen v. Roche, Supreme Court of Canada April 1983

The accused backed his car into one parked in a laneway. Apparently
the collision was not a gentle one and considerable damage was
caused.
The accused, armed with .a pool cue, stopped and approached
the other car.
As the occupants of the victim's car alighted the
accused got back in his own car and rammed the other car with such
force that it moved forty feet further into the laneway.
Although on the surface the incident seeD1S to be more one of mischief,
the accused was, at trial, convicted of Hit & Run but had this verdict
reversed on Appeal. The Crown then took a lingering argument over the
interpretation of section 233 of the Criminal Code (which is the heart
of the issue in this case) to the Supreme Court of Canada.
Section 233 says in subsection (2) that anyone who is involved in an
accident and fails to stop, identify himself "AND" does not assist the
injured, commits a crime (provided, of course, that this failure
resulted from an intent to escape Civil or criminal liability). Foreseeing great difficulties in proving such intent beyond a reasonable
doubt, Parliament provides in subsection (3) that failure to stop,
identify oneself "AND" assist the injured is "proof" (not merely
evidence) of such intent.
If, for instance, a person accused of the
crime of Hit and Run exercises his right to remain silent on the issue
of his intent (his reason for leaving the scene) then, if there is no
evidence to the contrary, he must, at trial, rebut this "presumption
of intent" on the balance of probabilities.
Needless to say that if in subsection (2) the "AND" means that it must
be interpreted conjunctively absurd situation would arise.
It could
mean that at an accident scene where no one was injured, all a driver
has to do is stop and then leave or if there are injuries, assist the
injured and leave. After all, the "AND" indicates that the duties the
section imposes must all be ignored before one commits "Hit and Run".
The same goes for subsection (3) the presumption of the intent to
escape civil or criminal liability.
Taking the subsection at its
word, it is of no assistance to the Crown unless the driver failed to
stop, identify himself AND assist the injured if there are any.
The Courts across Canada have varied considerably in the interpretation of subsection (3), although in respect to subsection (2), the
offence section, they pretty well have agreed that failure of anyone
of the duties it imposes will constitute the offence

- 14 -

When this case reached the B. c. Court of Appeal, the majority of the
Justices held that failure to carry out any of the three duties
imposed by subsection (2) may constitute an offence, however, before
we may infer the prerequisite criminal intent by using the provision
of subsection (3), all of the duties must have been ignored.
The
Crown appealed the decision to the Supreme Court of Canada which
cleared the matter up by holding:
"I think, therefore, that if Parliament intended that the
accused could commit the offence by failing to do any one
of three things specified in subsection (2), Parliament
intended, also, that the presumption provision would be
applicable in any case where the accused failed to do any
of the things specified"
Crown's appeal allowed
Conviction restored

*****

- 15 -

. SELF PJWTECTIOR
VEAPOB DARGEIWUS TO THE PUBLIC PEACE
Regina v. Ali

B.

c. Court of Appeal 811156

In November of 1982, the B. c. Court of Appeal dealt with a easel
where a young man was found carrying a knife while walking down the
street.
He had explained that although he used the knife for many
legitimate purposes he would use it to protect himself, "if I get
jumped or someone comes on to me".
The trial judge had held, in
essence, that where a person carries an item that he would use to
def end himself and carries it for that event, then the item is a
weapon dangerous to the public. The B. c. Court of Appeal reversed
that decision. Many believe that this precedent created a full proof
defence for the offence of carrying a weapon dangerous to the public
peace.
All one has to say is that he carried it to protect himself.
This is a misconception of what the B. C. Court of Appeal said. As a
matter of fact the Court gave an example of what it meant. A woman
may wear a hat with a hat-pin. If she was asked if she would use it
to defend herself and the answer was "Yes" this does not mean that she
carried a weapon dangerous to the public peace.
One month later the B. C. Court of Appeal gave a decision on the same
question in this Ali case which demonstrates that the Sulland decision
did not change the law.
Ali and a number of his friends were driving on city streets offering
gratuitous insults to women ("street people"), and seemed to invite an
altercation with a group of others. Police stopped the car and found
that the accused had a carpenter's hammer in his possession. In the
back of the car an axe was found but the accused claimed to be unaware
of its presence and denied ownership. When questioned for what purpose he had the hammer in his possession the accused explained that
people get murdered every day and that he had it "in case I need it
for protection". He asked the officer what he would do i f "faggots"
were coming at him with "clubs and two-by-fours".
When asked about
the near altercation with the "street people" the accused claimed they
were kicking his car. ·
The B. c. Court of Appeal unanimously held that the accused (who
appealed his conviction of possession of a weapon dangerous to the
public peace) "was looking for trouble and possessed the hammer to use
in the event that the trouble he was looking for arose.••

*****
1 Sulland v. The Queen CA 820276 - see page 14 of volume 10 of this
publication.

- 16 -

CllAltTEll OF RIGHTS ARD FREEDOMS

DEHARD - TRARSPOR.T IN POLICE WAGON - DETERTION
Regina v. Morrison
CC8216 18.

Vancouver County Court

March 1983

Registry

The accused went through a red traffic light and was stopped.
He
showed symptoms of impairment and the officer made, upon reasonable
and probable grounds, a demand for samples of breath.
The "Police
wagon" was called, the accused was secured in the back of it, and
transported to the police station where he went, after pretty sophisticated attempts to ruin the possibility of an accurate analysis,
through the motions of giving samples of his breath.
He was then
charged with "refusal" and informed of his right to counsel under
section lO(b) of the Charter.
The accused appealed his conviction of refusing to give samples of his
breath.
The interesting ground for appeal was that since he was not told of
his right to counsel until arrested long after the demand was made
.•
the learned trial judge erred in failing to
exclude evidence that was obtained in a manner that
infringed or denied rights or freedoms guaranteed by the
Canadian Charter of Rights and Freedoms".
What is refreshing is to see the matter of "detention" being raised.
On page 3 of volume 11 of this publication! comment is made how it
seems simply to be assumed by some Courts that when a person is under
demand to give a sample of his breath he is detained.
In this case
that was not done. It was assumed that the definition of "detention"
had not changed since the Charter became effective.
Therefore the
County Court reviewed the opinion of the Supreme Court of Canada on
the meaning of that word "detention"2 as it is in the Bill of Rights
1960.

1 Regina v. Davignon County Court of the Cariboo
2 Chromiak v. The Queen ~9 C.C.C. (2d) 257. See also page 3 of Volume
of this publication.

- 17

The Supreme Court of Canada said that whenever the words "to detain"
are used it is always in association with "actual physical restraint".
It held that that was not the legal situation" of one who
has been required to accompany a peace officer for the purpose of
having a breath test taken". The Supreme Court reasoned:
"The test may well be negative and, in such a case, it
would be quite wrong to say that this person was arrested
or detained and then released.
Detained means held in
custody as is apparent from such provisions as s. 15 of
the Immigration Act . . . . . .
The County Court Judge concluded from this that the accused Morrison
was not arrested or detained and it was, therefore, not necessary for
the officer to inform the accused of his rights.
This made it
unnecessary to consider i f the administration of justice was brought
into disrepute; the evidence was admissible and
The appeal was dismissed
Conviction upheld
Comment:
It seems not unlikely that this issue will either be
appealed further or debated in other cases.
The law is clear that
only being under demand "to accompany" and give samples of breath does
not mean a person is detained or arrested. However, what happens subsequent to the making of the demand may well cause a detention.
The
Supreme Court of canada said that when a person complies with directions police officers are entitled to issue, he is not in custody.
When he tries to get away to avoid obeying the test, then a detention
or arrest may well result.
However, it seems reasonable that when a
physical control is imposed such as being locked in the back of the
police van or handcuffed or in the rear of a patrol car equipped with
a shield and without door handles, that the Courts will hold that in
such circumstances, there is custody and hence detention.
It should
be noted that arrest includes detention but that there can be detention without arrest. Had the accused been transported as an ordinary
passenger there seems to be no doubt that he would not have been
detained.

* ****

- 18

OVERSIGHT ON 'DIE PAR.T OF POLICE m IBFORH
DETAIRED PERSON OF llGBT TO COUHSEL
Regina v. Fugard
Registry CC820806

Vancouver County Court, November 1982

Vancouver

Shortly after the Charter .of Rights and Freedoms became effective the
accused was found on private property at night in circumstances which
caused the officer to arrest him for trespassing by night. The off icer told the accused the reason for the arrest and that he had the
right to remain silent. However, the accused was not informed of his
right to retain and instruct counsel.
The officer searched the
accused and found a screwdriver and a flashlight on him and later, at
the station, a pair of socks.
An hour after the arrest the officer informed the accused of his right
to counsel.
By this time all the items the Court later considered
essential to the proceedings, had been found on the accused.
This
resulted in a voir dire to determine if the violation of the accused's
rights should result in exclusion of the exhibits (the accused was
tried for possession of house breaking tools).

----

When the accused was informed of his right to counsel he did not take
advantage of the opportunity to contact a lawyer. He said: "No, it
is too early in the morning".
Furthermore the Court held that the
officer's error was not for any oblique purpose and was simply an
oversight due to the incident having occurred very shortly after the
Charter was proclaimed.
The Court reasoned that had the officer informed the accused of his
right to counsel at the scene, his search of the accused would not
have depended on whether the accused wanted to contact a lawyer. It
is well established at common law* that authority to arrest includes
the entitlement to search the suspect and it was a result of the
search that the tools were found. Said the Court:
"I think that upon an examination of all the circumstances, and more particularly with respect to the reaction of the accused when he was informed of his right to
counsel, to admit this evidence would not necessarily
bring the administration of justice· into aisrepute.
Rather, I think under these particular circumstances, not
to admit i t would, in fact, bring the administration of
justice into disrepute"
Exhibits admitted in evidence.

* * ***

* Laporte and The Queen (1972) 8 C.C.C. (2d) 343

19 -

CHAR.TEI. OF 1.IGBTS AHO FREEDOMS
DROKS Di SEAR.CB VAllRABT

EXCLUSION OF EVIDENCE
Regina v. Thompson
CR95/82

County Court of Yale

March 1983, Kelowna Registry

Police armed with a search warrant, searched the accused's home. This
resulted in a conviction of possession of marijuana which the accused
appealed.
The warrant recorded a belief that ~arijuana was being cultivated at a
certain address. As it turned out the house number was wrong and was
one of a single dwelling.
The address where the search took place
contained two apartments and that of the accused was searched. In any
event, there were a number of errors, each of which, by itself would
not have been adequate to invalidate the search. However, the County
Court Judge found that the aggregate of them did. He found that the
officers had been careless, indifferent and unseeing.
Without saying what specific rights or freedoms were infringed or
denied by these errors, the judge invoked subsection (2) of section
24 of the Charter and excluded the evidence that resulted from the
search. He did so on the basis that society would be shocked by the
acceptance of the evidence.
Appeal allowed
Accused acquitted
Comment:
The Judge seems to have invoked the exclusionary rule to
discipline the police officers which probably is not a judicial
function according to other reasons for judgment.
can only be deduced that the judge must have thought that the
errors in the warrant made the search unreasonable and in violation of
section 8 of the Charter. As only a denial of a right or freedom can
activate the remedy of excluding evidence.

It

* ****

- 20

EVIDENCE TO THE CONTIWlY
-KIKACDLOUS FAcrs·
Regina v. Acheson
Registry CC433

County Court of Yale

February 1983

Kem.loops

At 2: 10 and 2: 30 a.m. analysis of the accused's breath resulted in
readings of 130 and 120 miligrams respectively.
The accused was charged with "over 80 ml.•• and released.
Within an hour he was found driving again and a new demand for samples
of breath was made of him.
Readings identical to those above - 130
and 120 miligrams respectively, resulted from tests at 3:21 and 3:38
a.m.
The Crown and defence "agreed" that the accused had nothing to drink
between the two sets of tests yet the Crown's evidence of the bloodalcohol levels was adduced by means of certificates and it depended on
the presumption that in "the absence of evidence to the contrary" the
blood-alcohol level at the time of analysis was the same as at the
times of driving.
The accused claimed that the "curious facts" of identical alcohol
levels with nearly an hour in between the two sets of tests was sufficient to doubt the accuracy of the analyses. The blood-alcohol level
was on its way down during the first set of tests; then without having
anything to drink, it increased 10 ml. only to reduce by the same rate
during the second set of tests.
This impossibility or miracle was,
the accused argued, evidence to the contrary which precludes reliance
on the presumption of equalization. During the trial, which resulted
in convictions, experts conceded that the two sets of readings could
not possibly be accurate i f the accused had nothing to drink between
his release and second apprehension. The accused appealed.
The County Court Judge held that a demonstrated inaccuracy in the
analysis of the blood-alcohol level does not amount to "evidence to
the contrary" unless it is of "sufficient magnitude to leave a doubt
as to the blood-alcohol content of the accused being over the allowable limit"*· In view of the tests having resulted in readings 50% in
excess of the legal limit, the County Court Judge held that "the evidence to the contrary" could withstand the quantitative and the qualitative tests
Appeal dismissed
Conviction upheld
* * * * *
* R. v. Cresthwait [1980] 6 M.V.R. 1.

(Supreme Court of Canada)

- 21 -

CHA1lTEJl OF JUGBTS ARD FUEDOHS

POSSESSION OF HOUSE-BREAKING TOOLS
R. v. Holmes - Ontario Court of Appeal - March 1983

On page 33 of Volume 11 of this publication it was indicated that an
Ontario County Court had held that section 309(1) of the Criminal Code
was inconsistent with the presumption of innocence guaranteed in
section ll(d) of the Charter. The Crown appealed that decision to the
Ontario Court of Appeal.
Section 309(1) C.C. states:
"Everyone who without lawful excuse, the proof of which
lies upon him, has · in his possession any instrument
suitable for house-breaking, vault breaking or safe
breaking, under circumstances that give rise to a reasonable inference that the instrument has been used or is or
was intended to be used for house-breaking, vaultbreaking or safe-breaking, is guilty of an indictable
offence ......
The Ontario Court of Appeal disagreed with the opinion of the County
Court Judge and held that the section does not create a reverse onus
at all. The Court of Appeal said that the Crown must prove the essential ingredients to the offence.
Nowhere does the section displace
the onus of that proof in respect to any of those ingredients.
In
other words it does not relieve the Crown from proving all ingredients
beyond a reasonable doubt.
One of the ingredients to this offence is that the possession is in
circumstances that give rise to a reasonable inference of intent to
use 'the instruments for an unlawful use. This calls for an objective
rather than a subjective test.
The masked man with a crowbar in a
back alley in the middle of the night or a plumber in the daytime
making his service calls with a van full of tools describe the
distinction. To draw an inference that the latter has the tools for
an unlawful purpose (other than the bill for his service) is of
course, absurd.
However, the former (the masked man) has some
explaining to do.
A reasonable doubt about any of the essential ingredients must result
in acquittal. The proof on the accused is simply one of explanation:
"I am the plumber" etc. The section is not in any way inconsistent
with the presumption of innocence
Crown's appeal allowed
Trial ordered to proceed

**** *

- 22 -

CBAK.TEit OF IUGHTS ARD FKEEDOMS

mmncovn OFFICER IB <ZLL WITH ACCUSED
ADKISSIBILITY OF STATEMERTS KADE
Regina v. Mason
1983

B. C. Supreme Court

Vancouver No. CC821292

January

These reasons for judgment are strictly in relation to a voir dire
conducted for the purpose to determine the admissibility of statements
made by the accused to a policeman who shared his cell and who the
accused believed to be a fellow prisoner.
The accused was "picked up" by the two patrol members on instructions
from detectives who wished to question the accused in connection with
a homicide.
The two officers did as they were told but the accused
demanded to know why he was being detained. All he was told was that
"major crime detectives" wanted to question him.
The accused was
placed in cells and taken to the detective offices three hours after
being booked. There he was informed for the first time, of his rights
and why he was being detained.
The arguments that arose from these events should be of considerable
interest to police. The officers who "picked up" the accused, did so
they thought and told the accused, for the purpose of investigation
and questioning.
There is no such charge or provision in law that
authorizes that practice I
Arrests can only be made i f statute or
common law provides the authority to do so.
When the detectives were questioned during the voir dire it became
clear that they did have reasonable and probable grounds for believing
that the accused had committed a murder.
However, the arresting
officers had no such grounds. The question then is if the belief and
knowledge of the detectives could be imputed to the officers who made
the arrest.
The defence claimed that this could not be done and
argued that the accused had been arbitrarily detained.
In responding to this submission, Mr. Justice Berger said:
"These officers were acting on instructions from the
radio operator; the police as a corporate body had
grounds appropriate for detaining the accused.
It seems
to me that we have gone far beyond the days of the
village policeman and we should not apply unrealistic
standards to police work today.
Often officers will be
given the responsibility of detaining an accused while it
is others in the same force who possess the knowledge
that justifies the detention".

- 23 -

In view of the reasonable and probable grounds the detectives had•
there was therefore no arbitrary detention.
The Court then had to address the apparent violations of section lO(a)
of the Charter and section 29 of the Criminal Code. Both require that
an arrested person nust be informed for the reason ·of the arrest. The
Charter dictates that this be done •promptly".
The B. C. Supreme
Court held that there was a breach of section IO( a) of the Charter.
It can hardly be said that in the circumstances• the accused was
promptly told of the reason for his detention.
In regards to the requirements under section lO(b) of the Charter the
Justice found that there was no breach. A detained person must be
informed of his right to counsel and when he wishes to exercise those
rights he must be afforded an opportunity to do so without delay. It
does not say he DI.1st be informed promptly. The accused had not asked
to consult counsel and was informed of his rights by the detectives
before they questioned him.
Therefore the statement he made to the
detectives was not obtained by infringements of the Charter.
It should be emphasized that the Court was considering the admissibility of the statements made to the detectives and the undercover
officer. This in respect to section 24(2) of the Charter which states
that evidence obtained by means which violate provisions of the
Charter shall be excluded "if it is established that, having regard to
all the circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute".
There were no problems about the voluntariness of the statements, a
prerequisite to admission in evidence quite separate from the ones
considered here.
The undercover officer• as long as the accused was unaware of his
status, was not a person in authority. In respect to the statement to
the detectives, there was no doubt about voluntariness.
The sole issue then, using the poisonous tree principle as an analogy,
was whether the violation on the part of police of section lO(a) of
the Charter was a fungus sufficient to have probably contaminated the
fruits on the branches. Or• as the Court did put it: "The key here
was causation".
The causation being, of ceurse, J,:he violation of
section lO(a) of the Charter by the arresting officers at the outset
of the detention. The Court held:
"These statements were obtained by questioning, not by
breaches of the Charter. The chain of causation, such as
it was, was broken when the detectives quite properly
advised the accused of his rights under section IO(b)".

- 24

Had the accused not been so advised then probably the statements given
to the detectives and subsequently to the undercover officer would
have been obtained by breaches of the Charter and would have compelled
the Court to consider exclusion under section 24(2) of the Charter.
Statements ruled admissible.
Note: The Court made a comment that the accused perhaps had a right
under Section 24(1) of the Charter to sue for damages for the breach
under section lO(a) of the Charter.

**** *

- 25

BREATH SAMPLE - AS SOOH AS PllACTICABLE
OFFICER. DELAYED OH ACCOUNT OF ASSISTIHG FELLOW OFFICER.

Regina v. Pearce
Registry X82-8765

County

Court

of

Westminster

New Westminster

While on his way to the police station with the accused who was under
arrest for impaired driving, the officer learned by radio that another
police car in the immediate vacinity was chasing a motorcycle.
Not
that it was an emergency or that he was requested to do so, but in
compliance with what he perceived to be police policy, the arresting
officer varied from his course to the police station to assist his
colleague.
The colleague lost the motorcycle but the officer transporting the
accused continued the search for the bike and was eventually successful in locating it.
When the colleague arrived at the scene the
officer continued to the police station. The rendering of assistance
was the cause of a delay of approximately twenty minutes. As a result
the first breath sample was taken forty-six minutes after the arrest
was made at a location three kilometres from the station.
The accused was convicted of "over 80 ml." and appealed claiming that
as the samples of his breath were not taken as soon as practicable the
certificate of analysis was not proof of his blood-alcohol content at
the time of his driving.
The County Court Judge referred to cases where the same arguments were
advanced and the interpretations of the term "as soon as practicable"
were given.
"As soon as practicable" is totally distinct from "as
soon as possible". It must be considered in view of all circumstances
and means when it is capable and feasible of being done.
It means
"within a reasonably prompt time under the circumstances".
The Courts have also emphasized that not satisfactorily explained
delays that prejudice the accused are not in compliance with the
provision that samples must be taken as soon as practicable.
The County Court Judge found that considering the circumstances the
delay had not prejudiced the accused and that it was satisfactorily
explained. If the delay was not connected with the administration of
the tests or had interfered with the accused's access to counsel, or
had prejudiced the accused in any way, the Court would have found that
the tests were not takefl within the appropriate time.
Such conclusion, the Judge said, could not be drawn in the circumstances of this
case.
In regards to the "prejudice", the Court considered when the accused
had done his drinking and what the results of the analyses were.
Appeal dismissed.
Conviction upheld

* *** *

-

26 -

ROADSIDE PROHIBITION TO DRIVE
DOES JACK OF PROOF 'DIAT SUBSEQUDT ADKIRISTKATIVE
DUTIES VERE COMPLIED WITH PROVIDE A DEFENCE?
R. v. Hardy
CC830271

B.

C.

Supreme Court

May 1983 -

Vancouver Registry

The accused was prohibited to drive for a period of 24 hours by a
constable who had reason to suspect that the accused had consumed
alcohol.
Shortly after the accused was found driving and he was
charged with driving while prohibited (section 88(1) M.V.A.).
In
respect to imposing the period of prohibition on the accused, everything was done properly.
However, as required by the policy of his
force, the officer left the copy of the prohibition notice in a tray
designated for this purpose. He had no idea if the notice was forwarded to the Superintendent of Motor Vehicles as required under section
214(10) M. V.A.
Lack of proof that this was done, caused the Provincial Court Judge to acquit the accused.
The Crown appealed.
Section 214(5) M.V.A. states that unless the prohibition imposed by a
police officer is terminated under other conditions of the section the
prohibition is for a period of 24 hours from the time the officer asks
the driver to surrender his driver's licence.
The obligation to report such a prohibition to the Superintendent of
motor vehicles imposed by subsection ( 1) is merely an administrative
provision which does not amount to an essential ingredient to the
offence of driving while prohibited.
This being the opinion of the County Court Judge,
convicted.

*****

the accused was

27 -

DUUSS - UNDEltCOVEll OPERATION
The Queen v. Gardiner - County Court of Prince Rupert, April 1983
Registry #CC197/12
An ex Green Beret member approached a police officer with a scheme to
get stolen hand-guns off the street.
As a result another officer
posed as an arms dealer from the U. S. The so-called dealer had a M16
automatic rifle with him which he was willing to exchange for handguns.

A meeting was arranged between the undercover officer and the 20 year
old accused.
Polie interupted the meeting and arrested the accused
who was in possession of a stolen revolver.
The meeting was arranged by the ex Green Beret who boasted to the
accused and another "gullible and impressionable" youth that in
addition he had been a member of the C.l.A. and Israeli Intelligence.
To corroborate his claim to fame the ex Beret demonstrated some iooves
and holds that injured his prospective clients.
The whole scheme,
said the Court, as presented by the Beret "would have made a normal
person suspicious". The Court concluded that both the accused and his
friend lived in fantasy-land to believe that the stolen revolvers were
so desparately needed by mercenaries in Nicaragua to "penetrate a dam"
that an M16 automatic rifle would be given in exchange.
The ex Beret went as far as threatening to blow-off the accused's head
with one of his own revolvers unless he made the exchange. Furthermore the accused was made to believe that secret agents had him under
observation. A failure to make the exchange would result in being
shot either by the agents or the ex Beret.
As a consequence, the accused was far from constipated when the zero
hour for the exchange arrived.
The undercover agent, the so-called
U.S. gun dealer, testified that the accused was "very nervous and
fearful when the deal was made in the motel" and that he had been told
by the ex Beret that the accused was and would be "scared, nervous and
afraid".
The ex Beret was rewarded with his keep for a few days and his wherea-

bouts were not known at the time of trial •

.

The conversation between the accused and the under-cover officer at
the time of the exchange was taped.
The arresting officer had used
the tape to make some notes and then erased it. The failure to preserve this important evidence resulted in the Court to "draw the most
favourable inference that I can for the accused".

- 28

The accused raised the defence of duress as described in section 17 of

the Criminal Code. It excuses persons from committing some offences
(including possession of stolen property and possession of an unregistered restricted weapon, the offences alleged against the accused) if
done under compulsion by threats of immediate death or grievous bodily
harm from a person who is present when the offence is committed.
The problems in applying the defence of duress to this case are that
the section implies a sudden threat and an immediate consequence of
death or injury. It seems the defence is only available when there is
a gun-to-the-head at the time of the crime; an ugly choice of committing the crime or be killed or injured. The accused became gradually
involved with time to withdraw, seek protection and escape the threat
and danger he perceived.
The accused had become voluntarily involved and as things gradually
developed the threats and fear resulted with lots of opportunity on
the part of the accused to extricate himself. Although the scheme had
the flavour of a "Grade B movie" and the accused and his friend were
under a "Modern Merlin's spell" according to the County Court, a
conviction was registered for the eight charges.

**** *

- 29

"OVEll 80 ML.· ARD THE DEFEllCE OF ADTOHATISH
R. v. Litchfield
County Court of Westminster
Westminster Registry X82-9176

April 1983

New

The accused was seen "careening" out of the parking lot of a hotel
He was found to have a blood-alcohol content .. substantially in excess
of 80 ml." and was convicted accordingly.
At his trial the evidence revealed the following:
"The accused drank approximately six beers in three hours
at the hotel.
He got in an argument with his wife and
was bodily removed and landed with his head on a motorcycle. He then went into his car where he had a mickey
of Tequilla of which he availed himself".
The accused said that he cannot remember anything between the time he
hit his head and waking up in a police cell.
The defence was that the six beer over the three hour period could not
have been the cause of the high blood-alcohol content. Therefore, the
"substantial excess" was due to the Tequilla which was consumed while
the accused was "not responsive". Hence the intake of alcohol was an
unconscious act and not a voluntary intake and his subsequent driving
lacked the mens rea.
Furthermore the departure from normal driving
was probably due ~the blow to his head. This resulted in an acquittal of the second charge of impaired driving.
The accused appealed his conviction of .. over 80 ml." claiming that the
defence of automatism was available to him in respect to that charge.
A psychiatrist testified that the consequences of concussion and
intoxication are similar and the Crown as well as the defence could
marshal! support from his testimony. Based on the facts as he found
them, the trial judge had rejected the defence of automatism. He said
that getting in the car and drinking the Tequilla and the subsequent
driving were consistent with a person who knows what he is doing and
inconsistent with automatism.
This then begs an obvio~s question. If there was a level of unawareness of what he was doing to the extent that he was acquitted of
impaired driving, how could there be sufficient awareness to drive
with a blood-alcohol content in excess of 80 ml.

- 30 -

For the "over 80 ml." charge the trial judge had considered that
consumption of beer and Tequilla were voluntary and both were with an
awareness of the effects they would have.
Furthermore the accused
knew what he was doing when he drove.
In respect to the impaired
driving charge the trial judge "looked not at the ~tandard of driving
and its cause but at the ingestion of alcohol and at the act of
driving to determine whether or not those were acts of the appellant's
(accused's) own will".
The accused knew he was drinking and knew he was driving and the
analyses proved a blood-alcohol content over the legal limit. Therefore, the Crown's case was complete.
Appeal dismissed.
Conviction of "over 80 ml." upheld

*****

- 31

RBASOKABLE BOTICE OF CER.TIPICATE OF ANALYSIS
R. v. Parker

County Court of Vancouver

April 1983

No. CC821536

The accused was convicted of "over 80 ml.". He appealed claiming that
the Crown failed to prove that he had received reasonable notice of
the intention to adduce the certificate in evidence or that he was
served with a copy of it.
When examined by the prosecutor the qualified technician was asked:
Q.:

And at the bottom of the form under the heading 'Notice of
Intention to Produce Certificate' again the signature of the
person who served that notice, again is that your signature
Constable?"

A. :

"Yes, it is".

Q. :

"And prior to serving that notice on the accused
• • ", etc.
(evidence was then led to show that the copy was a true copy).

The above question was the only evidence that the copy was served on
the accused. This the accused claimed was inadequate to be proof of a
reasonable notice.
The County Court Judge agreed and quashed the
conviction.
Appeal allowed
Note: C.Ounsel brought to the attention of the Court that it is not an
uncommon practice for trial courts to reject any submissions
regarding the admissibility of a certificate of analysis Wltil
the case has been closed.
The County Court Judge warned that
this practice should not be continued.

*****

- 32

CIWlTEll OF RIGHTS AND FREEDOMS
STATD'l'Ol.Y PUSUHPTIOB OF •CARE Olt COli'l'ROL
SEClIOB 237(l)(a) C.C.
PUSUHPTIOB OF I.RBOCEBCE
Whyte v. Regina County Court of Vancouver, April 1983
Vancouver Registry

No. CC821405

Applying section 237(l)(a) of the Criminal Code the trial judge had
found that the accused, whose ability to drive was impaired, had care
or control of his car.
The accused appealed his conviction claiming that s. 237(l)(a) C.C. is
a presumption of guilt which violates section 7 and section ll(d) of
the Charter.
The former guarantees no deprivation of liberty except
in accordance with the principles of fundamental justice and the
latter assures that we will be presumed innocent until proven guilty.
Reviewing cases* by courts of superior jurisdiction in other
provinces, the County Court Judge held that the presumption of "care
or control" does not violate the Charter.
The superior courts have said that Parliament had not enacted the
Charter in a vacuum and was aware of the established fair, efficient
and reasonable system of criminal law in existence at that time.
It
did not intend to displace this but simply wanted to establish some
new rights, modify others and give a clearer definition of them.
"It cannot be thought that the intent of the provisions
of the Charter that are in issue in this case, is to
undermine and bring to the ground the whole framework of
laws and the legal system of the country at the stroke of
a pen, even if it be a royal pen".
Appeal dismissed
Conviction upheld.
* * * * *

* R. v. Belton (1983) 2 W.W.R. 472.

(Manitoba Court of Appeal)
R. v. Potha (1982) 37 O.R. (2d) 189 (Ontario High Court of Justice)

33 -

CARELESS STOIUBG OF FIJlEAKK
Regina v. Batalka 70b c.c.c. (2d) 190 (1982)
B. C. Court of Appeal
The accused had an unloaded shotgun stared on a rack in the back
window of his pick-up truck. Shells for the gun were stored on top of
the dashboard. The accused left his truck parked on a public parking
lot (reasons for Judgement do not say if it was locked) and was, as a
consequence, convicted of "storing a firearm and ammunition in a careless manner". (s. 84(2) c.c.). He appealed his conviction.
The B. C. Court of Appeal remarked that the Criminal Code usually
prohibits things to be done in a "dangerous" manner or prohibits
"criminal negligence" for certain activities or with certain consequences.
Seldom or not anywhere does it use the word "careless" to
indicate a degree of negligence.
Negligence is divided in civil as
well as criminal law in categories and doing something without care is
the lowest degree of negligence, usually left to be used in Provincial
statutes.
"Dangerous" and "criminal negligence" usually require
advertence as a prerequisite to conviction.
In other words the act
must have been heedfully rather than inadvertently committed.
The
accused argued that the same applied when "carelessness" is an ingredient to a Criminal Code of fence.
The B. C. Court of Appeal held that the word "careless" must be given
its ordinary plain meaning. It simply means doing something without
care. Said the Court of Appeal:
" ••• to protect the public from the improper carrying, handling, shipping and storing of firearms,
Parliament has imposed a duty of care.
If the
accused failed in this duty, he is liable, because
the Code says so, even if he is no more than civilly
or inadvertently liable".
Appeal dismissed
Conviction upheld.

*****

- 34 -

LOITEKING - PROSTITUTION
Regina v. Munroe - 1 c.c.c. {3d) 305
County Court - Ontario
The accused was observed for approximately 15 minutes, standing and
walking back and forth near the entrance of a pedestrian tunnel. She
accosted three men {separately) and had brief conversations with
them. A fourth man she grabbed by the wrist and "steered him into the
tunnel". At this stage police interfered which upset the accused who
said: "I had the guy all lined up". She was consequently convicted
under the provision of section 17l{l){c) c.c. which states:
"Everyone who loiters in a public place and in any way
obstructs persons who are there, is guilty of an offence
punishable on summary conviction".
She appealed that conviction claiming that she did not loiter or
obstruct anyone.
Loitering, the County Court Judge found, contains an element of
"sauntering or idleness". He said that though many may disapprove of
her objectives, the accused was far from idle but in pursuit of a
purposeful activity.
Furthermore the Judge thought that she had not obstructed anyone as
was intended to be prohibited in the Criminal Code. Speaking of her
"contacts" the Court said:
• the trial judge erred in finding that the appellant bad obstructed the male persons whom she approached
including the four th male person the appellant took by
the arm.
If that person had resisted the appellant's
aggressive approach and had she still persisted further,
my conclusion might well have been different".
The Court also commented that the section had been used in this case
for purposes other than those for which it was designed.
Accused's appeal allowed
Verdict of not guilty entered.

**** *

- 35 -

REASOKABLE llOTICE THAT GUATEll PERAi.TY IS SOUGHT

Regina v. Duncan 1 c.c.c. (3d) 444
B. C. Court of Appeal
In 1971 this court of Appeal held* that when a notice is served on an
accused that the Crown intends to seek a greater penalty where the law
provides for such a more severe penalty due to a previous conviction,
(s. 740(1) C.C.) that notice cannot be served until the information is
sworn and the notice must refer specifically to the charge upon which
the greater penalty is sought. One justice of the Court of Appeal
dissented
Recently in this Duncan case, the same question arose and the B. C.
Court of Appeal held unanimously that it had been in error in 1971.
It held that the notice does not have to refer to the specific charge
upon which the greater penalty is sought and the notice can be served
prior to the information having been sworn. ·
Matter referred back to Provincial
Court for sentencing.

* * * * *

* R. v. Basi (1971) 5 c.c.c. (2d) 429

- 36 -

DEKARD M&DE CB PRIVATE PROPERTY
AllALYSIS ILLEGALLY OBTAIHED EVIDEBCE?
Regina v. Meadows
April 1983

County Court of Yale

Kelowna Registry

CR 5/83,

A patrolling police officer received a complaint that involved a 11Dtor
vehicle. The officer found the vehicle, followed it for some distance
and found nothing out of the ordinary in the way it was being driven.
To attend to the complaint the officer attempted to stop the vehicle.
Shortly after the officer activiated his emergency lights, the
accused (who drove the car under investigation) swung into the driveway of his home.
During the conversation with the accused regarding
the complaint the accused asked the officer if he had a warrant and
questioned his right to be on the accused's private property.
The
officer noticed pronounced symptoms of impairment and attempted to
read .the demand to the accused who had turned quite belligerent. The
accused was arrested for impaired driving and analysis of breath
resulted in a reading of 150 ml. The accused appealed his conviction
of "over 80 ml.".
The defence claimed that the evidence of blood-alcohol content was
illegally obtained and was, as a consequence, inadmissible.
Should
the Court hold that the evidence is admissible the accused claimed
that, due to the reading of s. 237 c.c., the evidence would not have
any evidentiary value and that the presumption that his blood-alcohol
content at the time of the test and driving were the same, could not
be applied.
The accused claimed that his arrest was unlawful as the officer, prior
to the accused entering his driveway, had no evidence of impaired
driving.
It was after he trespassed that the officer obtained the
grounds to believe that the accused was impaired
The Courts have held that even where an officer in the strict sense is
within the general scope of his duty, an unjustifiable use of power
associated with that duty may well be an unlawful interference with a
person's liberty.
The court responded that the officer was entitled to follow the
accused onto his property to investigate the complaint (which apparently was unrelated to the charge) in relation to which the description of the accused's car was given to the officer.
Once on the
property the officer became aware of the impaired driving which did
not, in the circumstances, become inadmissible because the accused

- 37 -

revoked the permission the officer may have had to enter on to the
property. Said the Court:
"I find, therefore, that not withstanding that the
officer did not have before he entered on to the appellant's property sufficient evidence on which to arrest
him for impaired driving, that the evidence he obtained
on the property was lawfully obtained, admissible against
the appellant, and was important here, formed a basis for
a lawful arrest for impaired driving."
Hence the demand was lawful and the evidence that resulted from it was
properly admitted in evidence. Consequently the Crown had the benefit
of the presumption that the blood-alcohol level at the time of analysis was the same as at the time of driving.
Appeal dismissed
Conviction upheld.

* * ***

ADMISSIBILITY OF STATEMEBT
ACCUSED CLADIS BK WILL ll>T AlfSVEJt ~STIOllS URTIL BK ll&D
TAJ.RD TO LAVYEK BOT COR'l'DmES TO ARSVER. QUESTIONS
Regina v. Spearman 70 C.C.C. (2d) 371
B. C. Court of Appeal

(1982)

The accused confessed to a member of the John Howard Society that he
murdered a woman.
The member took him to the police where he was
questioned for 1 1/2 hours. At the outset, when warned, the accused
said he wanted to speak to a lawyer before he answered any questions.
Despite this request, police questioned him and the accused answered
the questions.
At the conclusion of the interview the accused was
asked to check for accuracy the notes made of the interview and sign
them. The accused did the former and did agree with the content but
refused to do the latter until he had consulted a lawyer.
In the statement he confessed to strangling the woman. At trial the
confession was admitted.
The accused appealed his conviction of
murder (second degree) claiming that the statement should not have
been admitted. Although no threats were used the police had applied
"subtle pressures" to keep him talking without consulting counsel.
The Court of Appeal made some observations about the facts.
The
accused had mentioned several times, even during the interview that he
wanted to see a lawyer first. Yet he continued to talk to police. He
said he had done so out of fear that they would become angry and frustrated with his vague answers. Police said that they had not obtained
counsel for the accused as they did not feel obligated to do so. The
Court observed that the accused is a man with a criminal record who is
accustomed to be questioned by police. He had made his own presentation to the Court of Appeal and the Justices were not inclined to
believe that the accused was easily intimidated.
The Court decided that the statements were voluntarily made and admissible.
Appeal dismissed
Conviction upheld.
Comment:
It should be kept in mind that the interviews with the
accused took place in 1980, well before the Charter of Rights and

39

Freedoms became effective. The informing of a detained person of his
right to counsel is not retroactively applied.
Some predict that
circumstances like these would receive different consideration by the
Courts in view of the Charter.
This seems debatable.
Assuming an
accused is made aware of his rights and says he wants to exercise them
but continues to answer questions• then, i f that questioning or anything else is not the cause of the deprivation of that right. the
outcome of a voir dire on this issue may well be similar to that in
this Spearman -ca&e-.--Again. the Court apparently . placed a lot of
emphasis on the fact that the accused was sophisticated in this area
and not easily intimidated. A meek person in these circumstances, who
continues to answer because he feels obliged to do so on account of
continued questioning may well be considered to have been deprived of
his right to instruct and retain counsel without delay. It should be
remembered that the right to counsel was guaranteed under the Bill of
Rights and existed at common law long before the Charter became effective.
What is new is that an arrested or detained person must be
informed of that age-old right.

* * * * *

- 40 -

WITHHOLDING IDERTITY OF POLICE INFORMER -

TRAFFICll!fG BY AIDING PURCHASER. OF D:RIJG?
Regina v. Davies 1 c.c.c. (3d) 299
Ontario Court of Appeal
A police informer contacted the accused and requested him to find a
source of supply for cocaine and was promised money for his services.
After some months the accused contacted the informer and told him he
had a possible supplier.
The informer introduced the accused to an
under cover police officer as the prospective purchaser. Meetings and
exchanges took place which resulted in a delivery of cocaine to the
officer.
It is conceded by all concerned that the accused did not
handle any of the drugs or money in the transactions.
He, however,
was paid "a pittance" for his service.
A jury convicted the accused
of trafficking and he appealed.
The issue, according to the defence, was its inability to present a
full defence.
The law is that if one only has aided the vendor by
solely acting for the purchaser, he is not a trafficker. The accused
claimed that he was solely acting on behalf of the informer and the
officer.
The informer who was the only person who dealt with the
accused through all the events that made up the case against the
accused, was not made available by the Crown during the trial.
The
defence applied unsuccessfully to the Court for the name and the last
known whereabouts of the informer.
The jury had been instructed that they had to find that the accused
was an agent for the vendor to convict him. The Crown urged that the
accused was "working both ends" and the defence claimed he was solely
acting for the purchaser, the only one who paid him for his involvement in the transactions. The informer, besides the accused, was the
only person who could attest to this. The accused testified and to no
avail applied to the Court to have the informer subpoenaed to corroborate his testimony.
The Crown took the position that public interest demanded that the
identity of police informers not be revealed and based its argument on
an abundance of case-law that recognizes that the state cannot function and control criminal or other unlawful activities unless it can
receive information from citizens without having to divulge its source
to the public or the Courts.
However, that is not the case if the
informer is an agent provocateur. For instance, i f a person, whether
requested to do so by authorities or not, infiltrates certain circles
and informs on the activites, he is solely an informer. However, if
overt acts on his part manipulate, influence or direct the activities
on behalf of the state, then he is an agent provocateur and his anonymity cannot always be preserved.

41 -

Here the informer did not simply introduce the officer to the
accused.
On general instructions he posed as an agent for the purchasers of a large quantity of cocaine.
"Once an agent provocateur goes into the field, he loses
the protection of his cover".
This, the Ontario Court of Appeal held, was particularly so when his
testimony is required "to show the innocence of an accused".
The informer was the only witness who could corroborate the accused's
claim that any vendors he introduced to the informer or the officer
had to make their own deals with them and that the single involvement
on the part of the accused in the entire transaction was that introduction.
If the Crown, in circumstances as these, wishes to proceed, then for
the sake of fairness it cannot leave the entire case on the credibility of the accused, but has to reveal the identity of the informer.
After all, i f the accused had been believed by the jury or even had
created a reasonable doubt, then, if they were properly instructed,
the verdict would have been different. Obviously they did not believe
him, but would that also have been the case had his evidence been
corroborated?
Appeal allowed
New trial ordered.
Note: On the surface it appears that this decision flies in the face
of that of the Supreme Court of Canada in Amato v. The Queen*.
On
closer examination it does not. One of the issues in that case (the
main one was entrapment) was that the agent provocateur was not available to the Crown or the defence.
The defence claimed that its
inability to cross-examine deprived them of the ability to a full
defence.
However, the defence flag failed to fly.
In view of the
absence of that evidence, the trial judge "assumed that the findings
of fact ought to be made on the basis of the evidence by the
defence".
In other words, he accepted the facts as the defence
claimed they were. This meant that there were no adverse consequences
to Amato as a result of the agent provocateur not being available.

* ****