POLICE ACADEMY
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IN SERVICE:10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers across British Columbia.

24 PLUS HOUR DETENTION
DOES NOT WARRANT STAY
R. v. Malhi, 2006 QCCA 338
The accused was arrested for
extortion at 9:00 am, taken to
the police station at 10:00 am
and interviewed until 12:30
pm. He was a full time bank
account manager with a wife and children and
had no prior record. He also promised the
investigator that he would appear before a judge
on any conditions. The investigator was unable to
complete the paperwork necessary to have
formal charges laid until it was too late to have
the accused appear before a judge that day. In
Quebec, all criminal charges must be authorized
by a prosecutor. The accused was then detained
where he appeared before a judge at 3:00 pm
the next day.
At trial in the Court of Quebec the accused
brought an application for a stay of proceedings
under s.24(1) of the Charter because he was not
brought before a judge within 24 hours of
arrest as required by s.503(1) of the Criminal
Code. This, he argued, violated his rights under
ss.9
(arbitrary
detention)
and
11(e)
(unreasonable bail) of the Charter. The trial
judge denied the accused’s application and he
was convicted of attempted fraud, but acquitted
of extortion and criminal harassment.
The accused appealed to the Quebec Court of
Appeal contending the trial judge erred by
failing to grant the stay of proceedings. In his
view, the police investigator should have
released him on conditions under s.503(2) of the
Criminal
Code (promise to
appear
or
recognizance). By not releasing him while knowing

Volume 6 Issue 5
September/October 2006

his background, the accused submitted his
continued detention by police was arbitrary and
he was denied reasonable bail without just cause.
A stay of proceedings, he suggested, was an
appropriate remedy.
The Quebec Court of Appeal dismissed the
accused’s appeal. The police investigator was
concerned about the gravity of the offence.
Extortion carries a possible life sentence. The
officer also felt the accused may have been
involved in other similar attempts to extort
money from banking clients. As well, the victim in
this case appeared extremely nervous of the
situation and his home telephone number was
found in the accused’s briefcase when arrested.
In the officer’s view, it was preferable for a
judge to determine the accused’s release
conditions.
The Quebec Court of Appeal, however, made it
clear that it was not endorsing a practice or
system that would see an accused in similar
circumstances not being brought before a judge
without unreasonable delay and within 24 hours
of their arrest as section 503(1) of the Criminal
Code requires. Rather, a stay of proceedings is a
“draconian remedy…reserved for the most
egregious violations of the rights of an accused,
and then only if two conditions are satisfied:
first, that the prejudice caused by the abuse of
the accused's rights would be perpetuated or
aggravated by the continuation of the trial or its
result; and, second, that no other recourse would
adequately remedy the resulting prejudice,” said
the Court. Assuming the accused’s Charter
rights were violated in this case, a stay would
not be an appropriate remedy. The appeal was
dismissed.
Complete case available at www.canlii.org

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg.
4

Canine Odour Detection At Bus Terminal OK

‘IN SERVICE: 10-8’
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Convicted Sex Offender Must Demonstrate
SOIRA Order Disproportionate

6

Cumulative Factors Provide Reasonable
Grounds

8

Stay Not Proper In 24 Plus Hour Hold

8

Police Need Not Prove Communication In
Process For Cellphone Charge

9

Brunswick

Purpose Determines Application Of Implied
Licence Doctrine

10

“I recently received a copy of your publication
and found the up to date case law a good read”—

Balance

11

Several Factors Determine
Detention Occurs
Whole Picture
Grounds

Provides

************

Whether

13

Reasonable

15

Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes
only and are not to be construed as legal or other
professional advice. Nor are the opinions expressed
herein necessarily the opinions of the Justice Institute of
British Columbia. “In Service: 10-8” welcomes your
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would like to be added to our electronic distribution list
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National Library of Canada Cataloguing in
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Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases – Periodicals. I.
Justice Institute of British Columbia. Police Academy. II.
Title: In service, 10-8. III. Title: In service, ten - eight.

2

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Volume 6 Issue 5
September/October 2006

POLICE ONLY NEED
REASONABLE GROUNDS
DEVICE WORKING PROPERLY
R. v. Topaltsis,
(2006) Docket:C44298 (OntCA)

Complete case available at www.ontariocourts.on.ca

A police officer noticed that
the roadside screening device
he was going to use had not
been calibrated within the
department’s guidelines before administering a
roadside test. The device had not been
calibrated for 26 days, even though it was the
department’s practice to calibrate the device
every two weeks. However, the officer had
spoken to the manufacturer’s representative at a
trade show and was told the devices only needed
calibration every six months. The officer also
checked the device to ensure it properly
registered no alcohol before administering the
test. The accused failed the roadside screening
and subsequently provided a breath sample over
80mg%.
At trial in the Ontario Court of Justice the
judge concluded the officer did not objectively
have reasonable and probable grounds for making
the breath demand because, in part, the device
had not been calibrated within the department’s
policy. The accused was acquitted on a charge of
over 80mg%. The Ontario Superior Court of
Justice dismissed the Crown’s appeal, holding
that the fail reading did not provide reasonable
grounds because the device had not been
calibrated within police guidelines. The Crown
then appealed to the Ontario Court of Appeal
arguing the judge applied the wrong analysis in
assessing whether the officer had reasonable
and probable grounds.
In a unanimous endorsement, the Ontario Court
of Appeal set aside the acquittal. The proper
test was to simply determine whether the
officer had reasonable and probable grounds to
believe the screening device was in proper
working order. The test was not, as the trial

Volume 6 Issue 5
September/October 2006

judge required, for the Crown to prove the
device was in fact in good working order.
Because the trial judge applied the wrong test a
new trial was ordered.

DOG SNIFF OF PACKAGE NOT
A SEARCH
R. v. Taylor, 2006 NLCA 41
Police received information from
a proven and reliable source that
a package containing marihuana
in the name of “Jaimie Taylor”
would be in a FedEx office.
Police attended FedEx and an officer examined
the exterior of the suspect package with
FedEx’s consent and noted the name of “Jamie
Taylor” with an undeliverable address. A police
dog was brought to FedEx and the package was
placed, with others, at the rear of the
warehouse. The dog twice indicated there were
drugs in the package.
Based on the informer information and the
sniffer dog hit, the police obtained a search
warrant and opened the package, finding a
computer concealing three pounds of marihuana.
The marihuana was removed, the package put
back together, and the accused was arrested
after he arrived at FedEx, picked up the
package, and placed it in his trunk.
At trial in Newfoundland Provincial Court the
accused argued the dog sniff was a warrantless
search and that it could not be used as grounds
to obtain the search warrant. The trial judge,
however, rejected this submission and ruled the
dog sniff was not a search under s.8 of the
Charter. The warrant was properly obtained and
the marihuana found was admissible. The accused
then appealed to the Newfoundland Court of
Appeal again arguing the dog sniff was a search
and the evidence should be excluded under
s.24(2) of the Charter.

www.10-8.ca

3

Justice Rowe, authoring the unanimous opinion of
the Newfoundland Court of Appeal, first
reviewed search and seizure jurisprudence.
Section 8 of the Charter protects people from
unreasonable searches and seizures. However,
not every police examination is a “search” for
constitutional purposes. Only examinations that
intrude upon a person’s reasonable expectation
of privacy are s.8 searches. In this light, a court
will look at the totality of circumstances in
deciding whether there was a reasonable
expectation of privacy.
Although there may be a reasonable expectation
of privacy relating to the viewing of a package’s
contents, such as by opening it or by using an xray to view inside, there was no reasonable
expectation of privacy relating to the smell of
the package. Justice Rowe stated:
The contents of a package may reveal some
insight into the individual’s “biographical core
of personal information”, whose disclosure
could affect their “dignity, integrity and
autonomy”…Such
information
could
be
disclosed by opening the package to view its
contents.
Could such personal information be disclosed
by the dog sniffing the package? No, because
unlike opening the package (which would allow
police to see whatever is in it), a dog sniffing
for drugs can tell us only one thing: are there
drugs in the package. There can be no
reasonable expectation of privacy in that fact
alone. [references omitted, paras. 21-22]

Rowe also noted that this case was not one
where the police conducted a “speculative
sweep.” In other words they were not conducting
a random search of all packages at the FedEx
warehouse. Rather, the police were acting on the
information of an informant which provided a
bona fide basis for investigation, even though
the source information may not have provided
sufficient grounds to obtain a search warrant by
itself.

4

In the circumstances, the Newfoundland Court
of Appeal ruled the trial judge did not err in
holding that the dog sniff was not a search
under s.8 of the Charter and the accused’s
appeal was dismissed.
Complete case available at www.canlii.org

CANINE ODOUR DETECTION
AT BUS TERMINAL OK
R. v. Brown, 2006 ABCA 199
A three member plain clothes
police team, along with a sniffer
dog, was patrolling a Greyhound
bus terminal as part of a
Jetway project, a program which monitors the
public for drugs, weapons, proceeds of crime, or
other contraband at airports, bus depots, or
train stations. The accused was observed
disembark from an over-night train carrying a
bag high over his shoulder. This behaviour drew
the officer’s attention and he entered into a
conversation with the accused.
While the officer conversed with the accused,
he signalled for a police dog handler to bring
over a dog trained in detecting illegal drug
odours. The dog immediately indicated the
presence of drugs in the bag, which had been
placed on the ground. The accused was arrested
and 17 ounces of cocaine was found in the bag
and a small amount of heroin in his clothing.
At trial in the Alberta Court of Queen’s Bench
the accused sought exclusion of the evidence
under s.24(2) of the Charter because, he argued,
the police violated his right, among others, to be
secure against unreasonable search and seizure.
He submitted that the dog sniff was a
warrantless
search
and
was
therefore
unreasonable. The trial judge concluded that the
odour emanating from the bag voluntarily
brought into a public transportation facility was
not information in which he had a reasonable
expectation of privacy. The accused then
appealed to the Alberta Court of Appeal arguing

www.10-8.ca

Volume 6 Issue 5
September/October 2006

the actions of the police dog amounted to a
search protected under the Charter.
Justice Cote, authoring the majority opinion of
the Court, first discussed the meaning of a
search under s.8 of the Charter. For the
purposes of s.8 a search occurs when the
government
interferes
with
a
person’s
reasonable expectation of privacy. However, not
every government examination will intrude upon
this reasonable expectation and therefore will
not always be a search. Referring to the
Supreme Court of Canada decision R. v. Tessling,
a case dealing with the police use of FLIR,
Justice Cote noted that there are hierarchies of
privacy expectations and not all information
gleaned by the police in a public place about
contents of a private place is a search.
In holding that the trial judge did not err in
finding there was no Charter violation respecting
the dog sniff, Justice Cote wrote:
The privacy interests to be assessed and
protected under s. 8 of the Charter are not, of
course, confined to the particular activity or
type of activity detected in the prosecution at
hand. Finding drugs does not retroactively
make any “search” disappear. The relevant
question is not whether counterfeiters or
fences or drug smugglers have a reasonable
expectation of privacy for the tools,
merchandise or fruits of their trade. The first
question is whether the ordinary citizen who
has committed no offence has a reasonable
expectation of privacy which would be
significantly invaded by the police action in
question here. The danger of the police rifling
through homes or suitcases is not so much
their finding illegal items like guns, but their
seeing legal intimate or personal items. So
here one must first ask whether there would
have been a “search” under s. 8 if [the
accused] had had no illegal narcotics in his
luggage.
In my view (and that of the trial judge) there
would not. The dog could detect 9 types of
illegal drugs, and nothing else. Had [the
accused] had none of the 9 illegal drugs, the
dog sniff would have had no effect. Innocent

Volume 6 Issue 5
September/October 2006

items such as medicine, food, or perfume, even
illegal money or burglary tools or smuggled
cigarettes or guns, would have gone
undetected. Non-drug odors are a red herring
here, in my view. [paras. 47-48]

And further,
…No home was involved, the police were in a
purely public place (not the yard of a home),
the dog only yielded a crude piece of
information (yes or no to the presence of an
unknown quantity of an unknown illegal drug),
no intimate details of private lives could
possibly be revealed, the odors came out
passively, and they were detected by
something similar to (but more sensitive than)
an ordinary human nose. There was no
reasonable expectation of privacy for that
limited information in that public place.
An obvious loud noise or obvious strong smell
coming from luggage or from a locker in a bus
depot can be noted and used by police, as
defence counsel here properly conceded. All
that is different here is the use of a dog with
a nose keener than human noses. But the
Supreme Court of Canada in Tessling says that
that is not enough to turn this into a “ search”
under s. 8…
So I would conclude here that there was no
search,
and
no
unreasonable
search.
I do not intend to begin compiling a catalogue
myself, as the Supreme Court of Canada says
not to do that. So I am not ruling on all dog
sniffs at all times and all places and in all
manners. What would be the situation if the
dog were detecting some odor or sound from a
person, or the dog were trained to give more
information, or the dog climbed up onto the
owner of the luggage, or the dog sniffed or
listened outside a home or hotel room, or the
dog poked its nose into someone’s pocket. I
leave for another day and another case. [paras.
52-55]

Furthermore, even if the dog sniff was a search,
Justice Cote ruled the evidence would be
admissible under s.24(2). The majority dismissed
the accused’s appeal and his conviction was
affirmed.

www.10-8.ca

5

A Different Opinion
Justice Paperny, on the other hand, disagreed
with the majority. In her dissenting opinion she
concluded that the police did violate the
accused’s rights under s.8. “Odour often reveals
intensely personal details of lifestyle and
biographical data that individuals prefer to keep
to themselves,” said Justice Paperny. “This is
evidenced by the enormous industry aimed at
producing and marketing products to mask odour
on the person, on our effects, and in our homes.”
She further stated:
The dog sniff was also intrusive in a physical
sense. Many people are afraid of dogs. The use
of dogs has an historical connotation that
cannot be ignored. Dogs can and often are
intended to be intimidating and their proximity
to an individual can be highly invasive. So too
can their enhanced olfactory sense, as any
person who has been sniffed by a dog, friendly
or otherwise, can attest. The target of the
intrusiveness here is the personal luggage and
its odour; the police dog sniff permits highly
accurate identification of particular contents
of the bag which are not on display for all to
see.
The objective unreasonableness of the use of
the technique is driven by the nature and
quality of the information that the technique
is able to produce…. A dog sniff in the context
of the special training evidenced in this case,
in contrast to FLIR technology, provides nearly
definitive information about the contents of
luggage, and can reveal private information
concerning the activities of its owner.
Unlike the heat images produced by FLIR
technology, the contents and odour of one’s
personal luggage can reveal intimate details of
one’s lifestyle and individual personal choices
and thus constitute protected biographical
core personal information. Further, it cannot
be disputed that the reason the police wanted
the information from the dog sniff was to
ascertain details about [the accused’s]
personal lifestyle - that is, his involvement in
illegal drug activity.

6

In summary, [the accused] had a reasonable
expectation of privacy in his luggage and the
odour emanating from it and the dog sniff was
a search.
There was no warrant here. Warrantless
searches are prima facie unreasonable, absent
exigent circumstances…. The Crown did not
establish exigent circumstances, and in any
case, any exigencies would have been revealed
only after the unauthorized search occurred.
On the facts, the R.C.M.P. did not have
reasonable and probable grounds to believe
evidence of criminal activity existed (a
precondition to a genuine belief that such
evidence maybe lost, removed, destroyed, or
would disappear absent the unauthorized
search) until the dog gave the positive
indication after sniffing the bag. The dog sniff
led immediately to the arrest, and in turn [the
accused’s] bag was physically searched to
confirm the existence of the narcotics
indicated by the dog. [paras. 135-139]

Justice Paperny would have excluded the
evidence under s.24(2) and entered an acquittal.
Complete case available at www.albertacourts.ab.ca

CONVICTED SEX OFFENDER
MUST DEMONSTRATE SOIRA
ORDER DISPROPORTIONATE
R. v. Redhead & R. v. McIntyre,
2006 ABCA 84
In R. v. Redhead, the defendant
plead guilty to sexual assault for
forcing a 28 year old female with
the mental capacity of a 7 year
old to twice have sexual intercourse with him. He
was sentenced to 30 months in custody, but the
trial judge refused to order he register under
the Sex Offender Information Registry Act
(SOIRA) because he was drunk at the time, was
not a pedophile, and was not likely to re-offend.
In R. v. McIntyre, the defendant was convicted
of sexual assault with a weapon after he picked
up a prostitute, held a screwdriver to her neck,

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Volume 6 Issue 5
September/October 2006

and had oral sex and sexual intercourse with her.
He received four years in prison, but the trial
judge refused to grant a SOIRA order because
the victim was not a child and the accused had no
prior related record.
Crown appealed both cases to the Alberta Court
of Appeal arguing, in part, that the trial judges
erred in not granting SOIRA orders under
s.490.012 of the Criminal Code. This provision
requires a person convicted of a “designated
offence” to comply with SOIRA unless a court is
satisfied the impact of the order on the guilty
person, including their privacy and liberty, would
be grossly disproportionate to the public
interest in protecting society. A person under a
SOIRA order must provide information
concerning their identity and whereabouts and
report to police on an annual basis. This
information is entered into a national database
for convicted sex offenders and assists police in
investigating sex crimes.
The Alberta Court of Appeal allowed the Crown’s
appeal. Under s.490.012(4) a court may exempt a
convicted sex offender from a SOIRA order
only after assessing the impact on the offender
and finding it disproportionate to the public
interest. However, “the offender bears the
evidentiary burden of establishing that the
impact of a SOIRA order on him or her would
outweigh the public interest in protecting
society by investigating crimes of a sexual
nature.” The Court stated:
The assessment of how reporting obligations
might disproportionally impact an offender
requires an evidentiary foundation. The focus
of that inquiry must be on the offender's
present and possible future circumstances, and
not on the offence itself.
Different evidence is required to assess the
extent to which the offender will require
monitoring, which will necessarily include an
examination of the nature of the particular
circumstances of the offence and record of
the offender. But that evidence is irrelevant

Volume 6 Issue 5
September/October 2006

to the determination of the impact of the
registration and reporting on the offender.
Thus, the analysis under s. 490.012(4) is
restricted to the impact of a SOIRA order on
the offender. Nevertheless, that subsection
clearly contemplates that factors other than
the offender's privacy and liberty interests
may be considered, as it requires the court to
consider the impact on an offender, including
any impact on the offender's privacy and
security interests.
Other factors might include unique individual
circumstances such as a personal handicap,
whereby the offender requires assistance to
report… Courts have also considered the
intangible effects of the legislation, including
stigma, even if only in the offender's mind; the
undermining of rehabilitation and reintegration
in the community; and whether such an order
might result in police harassment as opposed
to police tracking… [paras 28-31]

The Court also rejected McIntyre’s argument
that the impact of the order is self evident
given the onerous obligations on the offender,
such as the mandatory reporting requirements
which could go on for years. The Court stated:
However, given the onus on the offender to
demonstrate why the impact of such an order
would be disproportional to the public interest,
it appears there is no presumption of impact in
the legislation arising from the length of
reporting obligations alone. Patently, the
impact on anyone who is subject to the
reporting requirements of a SOIRA order is
considerable. But absent disproportional
impact, the legislation mandates that anyone
convicted of a prescribed offence is subject
to the prescribed reporting period. [para 33]

In both of these cases, the lower courts
overlooked the lack of evidence on the impact of
the SOIRA orders on the offenders. The
Alberta Court of Appeal allowed the Crown’s
appeals and required both offenders to comply
with SOIRA orders for 20 years.
Complete case available at www.albertacourts.ab.ca

www.10-8.ca

7

CUMULATIVE FACTORS
PROVIDE REASONABLE
GROUNDS
R. v Johnson,
(2006) Docket:C42377 (OntCA)
Two uniformed patrol officers
saw a known crack addict pacing
back and forth outside a subway
station. The accused was
observed walking towards the addict from an
alleyway, nod his head to the addict, look around,
reach into his pants pocket, and briefly extend
his open palm to the addict. After the addict
looked at the accused’s palm, he closed it, put it
back in his pocket, and they walked away
together for a while, then went in separate
directions. The officers did not hear anything
said or see what was in the accused’s hand.
He was called over by the officers and was
arrested for possession of crack cocaine for the
purpose of trafficking. He was searched and the
police found individually wrapped packages of
crack cocaine, a knife with residue, and two cell
phones. At trial in the Ontario Superior Court of
Justice, the trial judge found the police had
reasonable grounds to arrest the accused and he
was convicted of possessing cocaine for the
purpose of trafficking.
The accused appealed to the Ontario Court of
Appeal arguing, in part, that the trial judge
erred in finding the police had reasonable
grounds to arrest him. He suggested the police
had neither the subjective nor the objective
foundation upon which to base the arrest.
The Ontario Court of Appeal, however, dismissed
the appeal. “For an arrest to be lawful, there
must be both subjective and objective
reasonable and probable grounds to believe that
an offence has been committed,” stated Court.
Here, the officer had the required subjective
belief. As well, the grounds were justifiable
from an objective point of view.

8

The reasonable person standing in the shoes of
the officers would know the particular area
involved and that the particular location within
that area was frequently used for drug
trafficking. The officers also knew the addict
was a crack user. Furthermore, the addict was
pacing in a location known for crack cocaine
trafficking and there was the guarded mode of
acknowledgment between the addict and the
accused, typical of drug transactions. The
accused also showed the addict a small item in
his cupped hands, typical of drug deals, and both
men walked off together. The trial judge did
not err in finding the police had reasonable and
probable grounds, on both a subjective and
objective basis, to arrest.
Complete case available at www.ontariocourts.on.ca

STAY NOT PROPER IN 24 PLUS
HOUR HOLD
R. v. Mangat,
(2006) Docket:C40544 (OntCA)
The accused was arrested for
robbery at 7:10 am where he
was detained at a police station.
At 3:00 pm the police obtained
an inculpatory statement from the accused and
he was detained until he was transported to
court for a bail hearing at 8:40 am the following
morning.
At his trial in the Ontario Court of Justice the
judge stayed the proceedings against the
accused under s.24(1) of the Charter because
she found the police did not comply with s.503 of
the Criminal Code, thereby breaching the
accused’s s.9 Charter right (arbitrary detention).
The judge found the police could have accessed a
justice of the peace within the first 10 hours of
the accused’s detention. Since they did not, his
detention did not comply with s.503 and was
unlawful.
The Crown appealed the stay to the Ontario
Court of Appeal arguing, in part, that it was not

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Volume 6 Issue 5
September/October 2006

warranted. The Court of Appeal agreed with the
Crown.
A stay of proceedings is a drastic
remedy reserved for the “clearest of cases” and
will only be appropriate when the prejudice
caused by the Charter breach will be
manifested, perpetuated or aggravated through
the conduct of the trial or its outcome and there
is no other remedy reasonably capable of
removing the prejudice.
The issue before the court was not one of
punishing the police, but rather whether the
prejudice caused by the arbitrary detention
could be adequately addressed by a remedy
short of a stay. In this case, the Ontario Court
of Appeal held that excluding the inculpatory
statement under s.24(2) was an adequate remedy
to address the prejudice arising from the
accused’s Charter breach. The Crown’s appeal
was allowed, the stay of proceedings set aside,
and a new trial ordered with the accused’s
statement to police excluded.
Complete case available at www.ontariocourts.on.ca

POLICE NEED NOT PROVE
COMMUNICATION IN PROCESS
FOR CELLPHONE CHARGE
R. v. Aisthorpe, 2006 NCLA 40
A police officer saw the accused
driving with a cellphone on his
shoulder and his head leaning
against it to hold it in place. The
officer did not know if the
accused was talking on the phone, but stopped
him and charged him under Newfoundland law
with operating a motor vehicle while using a
cellphone.
Under s.176.1 of Newfoundland’s Highway
Traffic Act it is an offence for a person to use a
hand-held cellular telephone while driving a
motor vehicle on a highway. This is a strict
liability offence where the Crown must prove the
actus reus beyond a reasonable doubt. A “cellular

Volume 6 Issue 5
September/October 2006

telephone” is defined as “an apparatus which can
send and receive a 2 way voice communication…”
Further, a “hand-held cellular phone” is defined
as “a cellular phone the use of which requires
being placed in the proximity to the mouth and
ear by being held in the hand or by another
means that uses one or more parts of the body.”
At trial in Newfoundland Provincial Court the
accused testified he was waiting for a call and
was “pretty sure” he was not talking to anyone.
He also claimed that if his phone had rung he
would have pulled over to answer it. The trial
judge nonetheless convicted the accused. In the
judge’s view, the test was not whether someone
was actually talking or listening on the phone, but
whether it was useable or in use. The fact it was
up to the accused’s ear was sufficient to
establish a prima facie case.
The accused appealed to the Newfoundland
Supreme Court which overturned the conviction.
In the appeal court judge’s view, the accused was
not using the cellphone because there was no
evidence that he was sending or receiving a
communication as required by the definition of a
cell phone under the legislation.
The Crown’s appeal to the Newfoundland Court
of Appeal was successful. Justice Rowe,
authoring the unanimous judgment, ruled that a
person having a hand-held cell phone turned on
and held between their shoulder and ear while
operating a motor vehicle was using the cell
phone contrary to the Highway Traffic Act.
In granting the appeal and reinstating the
conviction, Justice Rowe examined several areas.
1) the word “use”, as defined in the dictionary,
would suggest utilizing a cell phone for “any
purpose”;
2) the purpose of banning cell phone use is to
prevent drivers from being distracted while
driving;
3) if the definition of use was restricted to
sending and receiving a communication,

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9

actions such as looking up a number in the cell
phone’s directory, dialling a number, or
reviewing numbers of persons who had called
would not be use, even though these actions
all give rise to the driver looking away from
the road and being distracted from driving;
and
4) the definition of “hand-held cellular phone”
describes the manner of use—having the cell
phone in proximity to a person’s mouth and
ear—which points to a meaning that is wider
than “sending and receiving a communication”.
In concluding that the accused was using the cell
phone, Justice Rowe stated:
…I am satisfied that “use” in s. 176.1(2) has a
wider meaning than that given to it by the
summary conviction appeal judge (“sending and
receiving a communication”). I would hold that
“use” in s. 176.1(2) encompasses a variety of
operations of a hand-held cellular telephone
that could result in the driver being
distracted, including [the accused’s] actions as
charged….[para. 32]

The Court of Appeal also rejected the accused’s
argument that Newfoundland’s cell phone
legislation violated s.7 of the Charter because it
was unconstitutionally vague.
Complete case available at www.canlii.org

PURPOSE DETERMINES
APPLICATION OF IMPLIED
LICENCE DOCTRINE
R. v. Fowler, 2006 NBCA 90
Two police officers responded to
reports that the accused drove
his truck into a vehicle parked at
his estranged wife’s residence,
left the scene, was heading to
his parent’s home, and was possibly impaired.
The officers proceeded to the accused’s parent’s
home and saw a truck parked in the driveway
that had been recently running, as evidenced by

10

heat emanating from its underside and an engine
ticking sound. The house was in total darkness
but some windows were wide open.
Wanting to speak with the occupants of the
house to further their investigation, the
officers knocked on both the front and rear
doors but received no response. While returning
to their vehicle the officers heard a voice from
inside the house state, “Don’t answer the door.
I’ve been home all night. I’ve been home all
night.” The officers returned to the back door
and knocked again.
The accused answered the door, but was dressed
only in his underwear. He had a strong odour of
liquor on his breath, his eyes were red and
glassy, and he was unsteady on his feet. One of
the officers told the accused he had reasonable
and probable grounds to believe he left the
scene of an accident and was impaired. The
accused replied he had been home all night and
closed and locked the door.
While the officer discussed the matter with a
supervisor, the accused exited the house and
approached the officers. He was cautioned,
advised of his right to silence, and breath
samples were demanded. Two breath samples
subsequently obtained revealed a blood alcohol
level of 150mg%. The accused was charged with
impaired operation of a motor vehicle and
operating a motor vehicle with a blood alcohol
content over 80mg%.
At trial in New Brunswick Provincial Court the
accused argued the certificate of analysis was
inadmissible because the police violated his right
to be secure against unreasonable search and
seizure under s.8 of the Charter. In the
accused’s view, the police could not attend at his
home and knock without a search warrant.
Because there was no warrant, the observations
made by the police during the unreasonable
search tainted the certificate of analysis. The
Crown, on the other hand, submitted that the
police had the right to enter onto the property
to communicate with its occupants under the

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implied licence doctrine. The observations,
therefore, did not constitute an unreasonable
search and the certificate should be admitted.
The trial judge ruled the police attended the
house to communicate with the occupants, not to
obtain incriminating evidence against the
occupant. Accordingly, the accused’s Charter
rights were not breached and the certificate
was admitted. The accused was convicted of the
over 80mg% charge and the impaired driving
charge was stayed.
The accused’s appeal to the New Brunswick
Supreme Court was allowed and his conviction
was overturned. The appeal court judge found
that one of the police purposes for knocking at
the door was to obtain evidence the accused was
impaired. The police, therefore, exceeded their
authority under implied invitation to knock and
violated the accused’s Charter rights in the
process. The breathalyzer results should have
been excluded under s.24(2) and a new trial was
ordered. The Crown then appealed to the New
Brunswick Court of Appeal.
Under the common law there is a long-standing
principle that people, including police officers,
have implied licence to approach and knock on
someone’s door for the purpose of convenient
communication with the occupant(s). If the
police purpose is to communicate with the
occupant(s) there is no search for constitutional
purposes. However, if the police approach the
residence to secure evidence against the
occupant then a search has taken place and a
reasonableness enquiry will be undertaken under
s.8. If the police have a dual purpose in mind (eg.
to communicate with the occupant and secure
evidence against the occupant) the police
conduct will constitute a search and s.8 is
engaged.
In this case the trial judge rejected the
accused’s position that the police attended the
residence to obtain incriminating evidence and
held their purpose was to communicate with the
occupant(s). This finding was unassailable based

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on the facts and the appeal court judge
exceeded her authority when she determined
that one of the police purposes was to obtain
evidence against the accused. The Crown’s appeal
was allowed and the accused’s conviction was
restored.
Complete case available at www.canlii.org

BALANCE
By Kelly Keith
Balance is defined as the ability
to maintain the center of mass
over a base of support and is
sometimes referred to as the
relationship between the ears
and the hips. A body’s center
of gravity is an inch or two above or below the
navel.
Why is balance important to a police officer? If
a police officer loses their balance when
attacked they are likely to be in a ground fight.
However, a police officer on the ground does
NOT mean they are losing the battle, but it does
have some disadvantages such as:
•
•
•
•
•
•
•
•

the police officer is more susceptible to injury;
a psychological / physical disadvantage for the
officer;
a psychological / physical advantage for the
suspect;
increased danger from multiple attackers;
disarming chances increased;
extremely exhausting to the officer;
poor delivery system for the officer’s striking
techniques and intermediate weapons; and
immediate disengagement from the subject
cannot be achieved.

Trainers generally train officers to fight to
their feet or, in the case of an officer’s physical
dominance, to a cuffing position. Statistics show
that the three most common ways officers end
up on the ground are:
1.
2.

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the officer is pushed to the ground;
the officer is pulled to the ground; or

11

3.

the officer is tackled to the ground.

Hopefully, officers are trained or take it upon
themselves to know what to do once on the
ground. But if they understand and train on
“balance” they may not have to deal with going to
the ground at all!
The most stable support for an officer is having
their feet just wider than shoulder width apart.
This is not always possible during confrontations.
However, by understanding this concept and
attempting to keep a wide stance (or base of
support) an officer is less likely to be taken to
the ground. A stable base of support allows an
officer to change direction easily. Too wide of a
stance, such as the “horse stance” with a very
wide base of support, will not allow a change of
direction quickly, which is not a good trade off.
Lowering one’s center of gravity also adds
stability. But again, if one’s body is too low they
will sacrifice the ability to change direction
quickly.
Understanding the importance of balance and
how to stay in balance is not enough. One must
train “off balance”. But how does one train this
way?
• By simply making the base of support smaller
(standing on one foot or having feet close
together) a person’s balance is challenged. A
great example to increase balance and
stimulate muscle fibers that would generally
not be stimulated, is by standing on one foot
while doing some exercises. For example,
when doing 3 sets of dumbbell curls do the
first 2 sets on both feet and then the third
set by alternating standing on one foot for
the first 5 repetitions and the opposite foot
for the remaining 5. This can be done with
almost any exercise when standing, such as
presses, side raises, tricep pushdowns, etc.
• Use Balance training tools such as Bosu Balls,
Balance Boards, or Bongo Boards.
For
example, try doing squats while attempting to
maintain balance. Squats on Physio balls are

12

not recommended because a fall can easily
mean a torn ACL – Always look at whether the
risk is worth the benefit? This does not mean
giving up power or strength training, but
simply adding an element to training, which in
the end will give the user more strength and
power in an unstable environment.
• Visual systems have a great deal to do with
balance. Postural sway will increase 20 – 70 %
simply by closing one’s eyes and standing up.
Stressing one’s balance can be accomplished
by activities, such as closing eyes during safe
standing stretches, easy slow kicks to a bag,
etc.
• There is dynamic balance training, such as rag
doll drills where each person has a good
quality Judo Gi on. They stand within arms
reach and grab onto the collars. DO NOT try
to torque a partner down to the ground. This
may cause injury. Rather, simply try to
displace an opponent’s balance while they try
same. Once the person’s balance is displaced
(ie. one foot off the ground) start again. This
is enhanced if the interview stance is used to
do these drills, which makes it more job
specific training!
• CORE strength (Butt and Gut) is of the
utmost importance in keeping balance and
should be utilized during all balance training.
Using medicine balls and physio balls are
great ways to have dynamic and functional
core strength exercises.
• Using Physio balls for dumbbell chest presses
instead of a flat secure bench is a great way
to address functional strength and balance
(use light weights and/or a spotter first).
Think about the benefits of adding balance
challenging exercises into every routine!
Start varying routines to address balance and
great results in both balance and strength will
occur. Utilize the above principles by varying
base support (feet) and use your imagination
(safely) to work with these principles.

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September/October 2006

SEVERAL FACTORS DETERMINE
WHETHER DETENTION
OCCURS
R. v. Grant,
(2006) Docket:C43132 (OntCA)

The Detention

Two
plainclothes
officers,
engaged in proactive policing in
a neighbourhood school hot
spot, asked a uniformed officer
to stop the accused and chat with him after they
saw him walk by in a “suspicious” manner. He had
“stared” at the officers in an unusual manner and
“fidgeted” with his pants and coat which looked
suspicious. The uniformed officer stood in the
accused’s path, told him to keep his hands in
front of him, and began to question him. The two
plainclothes officers arrived and stood behind
the uniformed officer. The accused was initially
only asked for identification, but then he was
asked if he had ever been arrested and whether
he had anything on him he shouldn’t. Although
initially saying “no,” he did say he had a small
amount of marihuana and, when asked if there
was anything else, admitted to having a loaded
revolver. The accused was arrested, his revolver
seized from his waist pouch, and he was charged
with five firearms offences.
At trial in the Ontario Court of Justice the
accused’s motion to exclude the gun from
evidence because his rights under ss. 8, 9 and
10(b) of the Charter had been violated was
dismissed. The trial judge found there was no
detention. He ruled that the conversation
between the uniformed officer and the accused
was merely “chit chat”, while the officer’s
statement for the accused to keep his hands in
front of him was a “request”, not a direction or
demand.” Finally, the accused could have simply
walked around the officers and kept going. He
was convicted on all counts and sentenced to 18
months imprisonment.
The accused appealed to the Ontario Court of
Appeal arguing, in part, that he was detained and

Volume 6 Issue 5
September/October 2006

that the police questioning amounted to a search.
Further, if his rights were violated the accused
submitted the revolver should have been
excluded as evidence.

Section 9 of the Charter guarantees that
everyone has the right not to be arbitrarily
detained. If the police have reasonable grounds
to detain for an investigative purpose the
detention will not be arbitrary. However, in this
case the Crown conceded the police did not have
reasonable grounds to detain. Rather the Crown’s
position was that there was no detention at all.
Justice Laskin, authoring the unanimous appeal
court judgment, first reviewed what constitutes
a detention for Charter purposes. A detention
under the Charter can occur in two ways:
physical or “psychological.” A psychological
detention can occur when a police officer gives a
direction or demand to a citizen in which the
citizen feels (reasonably believes) they have no
choice but to obey (and submits or acquiesces to
the direction or demand), even if there is no
legal authority for the demand or direction and
thus no offence committed for failing to comply.
Justice Laskin noted:
The definition of “psychological detention”
reflects a judicial balance between competing
values. On the one hand, the police have the
duty and the authority to investigate and
prevent crime in order to keep our community
safe. In carrying out their duty, they must
interact daily with ordinary citizens. Not every
such encounter between the police and a
citizen amounts to a constitutional “detention.”
This court and other courts have recognized
that police must be able to speak to a citizen
without triggering that citizen’s Charter
rights.
………
On the other hand, ordinary citizens must have
the right to move freely about their
community. Thus, the police cannot detain a
citizen for questioning unless they are
authorized by law to do so… [paras. 10-12]

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13

badges, and
officer].

In describing the criteria for a psychological
detention, Justice Laskin stated:
…a “psychological” detention includes three
elements: a police direction or demand to an
individual; the individual’s voluntary compliance
with the direction or demand, resulting in a
deprivation of liberty or other serious legal
consequences; and the individual’s reasonable
belief that there is no choice but to comply.

The accused sought “bright-line” rules governing
whether or not a police-citizen encounter
amounted to a detention, suggesting that merely
asking questions about identity would not be
“psychological detention”, while questions about
personal possessions or inviting incriminating
responses would. Justice Laskin rejected this
submission, recognizing that police-citizen
encounters take on such a myriad of
circumstances and contexts that bright–line
rules were not desirable. Rather, a fact-specific
and context sensitive inquiry must be made into
whether a police-citizen encounter gives rise to
a detention.
In this case, Justin Laskin ruled the accused was
psychologically detained, although it was a
difficult and close case, because of the
following:
•

•

[The uniformed officer’s] initial demand: Early in
the encounter, [the uniformed officer] stood in
front of the [accused], blocked his path on the
sidewalk, and told him to keep his hands in front
of him where [the uniformed officer] could see
them. …[T]hese words coming from a uniformed
officer standing three feet away, amounted to a
demand, which the [accused] was not free to
ignore. From the outset, then, [the uniformed
officer] effectively took control of the
[accused’s]
physical
movements.
Equally
important, the demand, coming at the beginning
of the encounter, established the atmosphere for
the remainder of it.
The actions of [the plainclothes officers]: These
two plainclothes officers did not stay in their
car, which would have mitigated the intimidating
nature of the encounter. Instead they got out of
their car, showed the [accused] their police

14

stood

behind

[the

uniformed

•

The positions of the three officers: [the
uniformed officer] stood in his interview stance,
three feet away from the [accused]. Every time
the [accused] moved, [the uniformed officer]
moved, in order to maintain their relative
positions. [The plainclothes officers] stood
behind [the uniformed officer], four to five feet
away from the [accused]. These three officers –
each bigger then the [accused] – effectively
formed a small phalanx blocking the path in which
the [accused] was walking. In doing so, the
officers exerted control over the [accused’s]
movements throughout the encounter.

•

[The uniformed officer’s] questions:
[The
uniformed officer’s] questions went well beyond a
mere request for identification or other nonincriminating information.
Questions about
whether the [accused] had ever been arrested or
was carry something illegal invited inculpatory
answers. The officers frankly acknowledged that
they were looking for answers that would give
them grounds to arrest or search the [accused].
These questions, coming after [the uniformed
officer’s] initial demand, amounted to further
“demands”.

•

The [accused’s] answers:
The [accused]
acquiesced to all the officers’ demands. He put
his hands in front of him, and then he gave
incriminating answers, leading to his arrest, the
police’s search, and the ultimate deprivation of
his liberty.

•

The [accused’s] manner of answering the police’s
questions: Although the [accused] did not testify
on the motion, his failure to do so is not fatal to
his claim because the standard for establishing
compulsion is objective. The question the court
must decide is whether the [accused] reasonably
believed that he was detained… In my view the
court can reasonably infer compulsion from the
[accused’s] manner of answering the police’s
questions and from the answers themselves. The
[accused] paced nervously and hesitated before
answering [the uniformed officer’s] questions.
Although he did not testify, I infer from his
manner of responding to the police’s questions
that he did not believe he had the right to walk
away and end the conversation, but rather
believed that he had no choice but to answer
their questions. Moreover it seems to me that
the [accused’s] belief was objectively reasonable.

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In the light of his answers, the suggestion that
the [accused] knew he had the right not to
incriminate himself seems unreasonable. I note
that at no time during the encounter did the
officers tell the [accused] that he was free to go
or free not to respond to their questions.
•

•

The [accused’s] age: The [accused] was not a
sophisticated adult. The [accused] was an 18year-old youth, facing three police officers
standing a few feet away from him in his path on
the sidewalk.
The duration of the encounter: The entire
encounter, from the time [the uniformed
officer’s] stopped the [accused] until his arrest,
lasted about seven minutes. This was not a long
encounter, but it was not so short that it could
not give rise to a detention.

Since the accused was detained and the Crown
conceded the police did not have reasonable
grounds to detain him, the detention was
arbitrary and a violation of s.9 of the Charter.

The Search
The accused argued the police questioning
amounted to a search that began when they
asked him whether he had anything he shouldn’t.
Justice Laskin, however, disagreed. He stated:
The divide between questions that begin a
search and questions that do not is sometimes
not easy to draw. In this case, I am not
persuaded that the police’s question to the
[accused] “if he had anything that he
shouldn’t” began a search. In my view, the
search began, at the earliest, after the
[accused] admitted to possession of marijuana.
At that point, however, the police had
reasonable and probable grounds to arrest the
[accused]. Then, when in answer to [the
uniformed officer’s] follow-up question “is that
it”, the [accused] admitted to carrying the
revolver, the police had the right to search
the [accused], incident to arresting him.
Indeed they had that right even if they did
not arrest him…[reference omitted, para. 33]

The question was general in nature and the police
had not already formed the intention to conduct
a search. The question was unlike other cases,
where accused persons were asked to empty

Volume 6 Issue 5
September/October 2006

their pockets, asked what was in their open gym
bag, or asked what was in their pocket after the
police had touched it and felt a hard lump.
Although those questions amounted to a search,
the nature of the officer’s question in this case
did not. They were asked in a different context.
Since there was no search, there was no violation
under s.8 of the Charter.

Evidence
Although the accused’s s.9 of the Charter right
had been breached, the evidence was
nonetheless admissible under s.24(2). Even
though the revolver was “derivative evidence”
that arose from the accused’s answers (which
were “conscriptive evidence”, he had a lesser
expectation of privacy in a public area, the
detention was brief, the questioning minimally
intrusive, the police did not physically restrain
the accused until they arrested him, and they
acted in good faith. Furthermore, possession of
a loaded firearm in public is very serious, the
accused was near several schools, the evidence
was crucial to the Crown’s case, and the evidence
was entirely reliable. Therefore, admitting the
evidence would not bring the administration of
justice into disrepute.
The accused’s conviction appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

WHOLE PICTURE PROVIDES
REASONABLE GROUNDS
R. v. Mohammadi, 2006 QCCA 930
Officers received information
that a significant cache of
drugs was to be found in an
unidentified unit within an
apartment building and that
the accused made use of this facility. A
briefing was held later that afternoon where
the accused’s and another suspect’s photograph
were distributed along with the description of

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15

the vehicle the accused used, a Yukon, including
its licence plate.
The building was placed under surveillance and
about an hour later a vehicle resembling the
accused’s arrived on the scene. It was parked in
front of but across the street from the
apartment building. Within a very short time,
another vehicle arrived and parked parallel to
the accused’s vehicle. Both drivers appeared to
talk to each other and the other vehicle then
departed.
The accused then emerged from the parked
vehicle, crossed the street, and entered the
apartment building using a key. Within a few
minutes, he was seen exiting the building
carrying a black plastic bag. He appeared
nervous and kept looking behind him and in all
directions. He entered the parked vehicle but
precipitously left the vehicle when he saw the
police arriving to intercept him. He was seen
throwing the black plastic bag and the car keys
onto the street, but his attempt to flee failed
and he was arrested not far away. The black
plastic bag subsequently was found to contain
approximately two kilograms of heroin. His
vehicle was searched and $5,000 cash and
107.2 grams of hashish were also uncovered.
At his trial in Quebec Superior Court on charges
of possessing heroin and hashish for the purpose
of trafficking the accused presented a motion to
have his arrest declared illegal and to exclude
the evidence obtained thereafter. In his view,
there was an insufficient basis to proceed with
the arrest under s.495 of the Criminal Code.
The judge, however, found the arrest lawful. The
accused was known to the police, he had a prior
drug trafficking criminal record, he had
previously been under surveillance for possible
trafficking of drugs with his cousin, the police
had information that he would be present at a
location that was a cornerstone of trafficking in
heroin and his conduct in leaving the building
with a plastic bag after entering without a bag
was suspicious, as was his demeanour when he

16

left the building to cross the road to reach his
parked vehicle, which they had received
information earlier in the day.
The accused was found guilty by a jury. He was
sentenced to 11 years and seven months in
prison. The drugs were ordered destroyed, the
$5,000 cash confiscated as well as a pager and a
cellular telephone, and he was prohibited from
weapons for 10 years.
The accused appealed to the Quebec Court of
Appeal arguing, among other grounds, that the
trial judge erred in failing to find his arrest
illegal and to exclude the evidence obtained
incidental to a search. Although the timing of
the accused’s motion to exclude the evidence at
trial was not proper, the Quebec Court of Appeal
nonetheless commented on the merits of it.
Justice Hilton stated:
…[the accused] argues that the information on
which the police acted on the afternoon in
question was insufficient to justify his arrest.
This information, however, included the specific
identity of [the accused], his photograph, a
description of the vehicle he would be driving
with the licence plate, along with the location of
the building in which the drugs were said to be
found. In my view, this constituted an adequate
basis to proceed to his arrest without a warrant
in light of his conduct as it was observed by the
police when he arrived on the scene…. Not the
least of these factors was his attempt to flee
after he had taken his position at the wheel in
the Yukon when the vehicle was intercepted,
after which he was seen throwing the plastic bag
onto the middle of Queen Mary Road.
As far as the items seized subsequent to the
arrest are concerned, this issue was not raised
before the trial judge. Since there is no
judgment of the trial judge on the subject, there
is nothing for this Court to review…. In any event,
having abandoned the plastic bag in which the
heroin was found by throwing it onto Queen Mary
Road, [the accused] can no longer contend for a
privacy interest with respect to the contents of
the bag. [references omitted, para. 54-55]

The appeal was dismissed.
Complete case available at www.canlii.org

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September/October 2006