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

Vol.48No. 3

Justice Institute of British Columbia - Police Academy

July, 1997

The Feeney Decision: Bad Faith By Whom?
Paul N. Tinsley, B.A., M.A. (Police Academy)
Sheila Sullivan, B.A., LLB. (Police Academy)

To say the Supreme Court of Canada
(the "SCC") has dealt a serious blow to
society and law enforcement in Canada
in R. v. Feeney 1 is a gross
understatement. It is the position of the
authors that the Majority did not
comprehend the effects of this decision.
It is certainly reminiscent of the
catastrophe that followed in the wake of
the Supreme Court decision in R. v.
Askoi?- (regarding unreasonable trial
delay). Feeney once again raises that
age old issue of allowing a court, rather
than an elected body, to make law and
determine the price to be paid by society
and innocent victims in protecting our
individual freedoms. It is the authors'
opinion that the Charter was never
intended to grant the sec the broad
powers (which the sec appears to
exercise in Feeney) to effectively make
laws and extend the supremacy of
individual rights to the exclusion of any
and all others. Feeney also raises
fundamental questions about the value
of life and dignity in a world where the
Court, in the staid and detached
atmosphere of the courtroom, second
guesses split second decisions made by
police officers in the imperfect and
uncontrolled environment of the real
world (e.g. whether there were
reasonable and probable grounds to

THIS ISSUE
The Feeney Decision ....................... 1
Leadership Development Program .. 7
Operational Notes ............................ 8

believe Feeney had committed the murder).
This article will canvass the issues dealt
with in Feeney and summarize the most
significant implications of this case on the
police and their ability to do their collective
job.

Facts
In the early morning hours of June 8,
1991, Frank Boyle (86 years) was viciously
bludgeoned to death in his home in the
small isolated town of Likely B.C.,
population 300. The murder scene was
covered in Mr. Boyle's blood. Upon
arriving at the scene, investigators from
the Williams Lake RCMP Detachment
learned that the victim's truck had been
driven into the ditch half a kilometre from
his home. The investigators believed that,
in all likelihood, the vehicle was driven by
someone other than Boyle at the time of
the accident, since Boyle was known to
be a slow and cautious driver. The
investigators believed that the killer had
probably stolen it.
The investigators learned that one
resident, Potter, had observed Feeney,
whom she knew, walking away from the
scene of the accident toward his home at
approximately 6:45 a.m. It appeared that
he was carrying a stick or beer in his hand.
Another resident, Spurn, told the
investigators that earlier in the morning,
another vehicle had gone into the ditch at
exactly the same spot where Boyle's truck
was found. Spurn advised the police that
the first vehicle was owned by Feeney's
brother-in-law, Russell, and that Russell
had told him that Feeney was responsible
for the earlier accident.

Russell confirmed to the police that
Feeney had stolen a vehicle from his
property earlier in the night and had
driven it off the road just down from
Boyle's residence. Russell also advised
police that Feeney was residing in an
equipment trailer at the back of the
property occupied by Russell and his wife
(Feeney's sister). Russell reported seeing
Feeney come home by foot at
approximately 7:00 a.m. after a night of
drinking.
The investigators attended at the
windowless trailer, knocked and said
"Police". When no one answered, they
went in with guns drawn (held down by
their side). Feeney was lying on a bunk,
apparently asleep. The senior investigator
shook Feeney's leg saying "Wake up,
police. I want to talk to you." Feeney was
asked to step to the front of the trailer
where there was more light. The
investigator immediately saw that
Feeney's shirt was splattered with blood.
He placed Feeney under arrest and
another officer read Feeney' s rights under
the Charter. When asked if he
understood, Feeney stated "Of course,
do you think I am illiterate?" The
investigators seized Feeney's shirt and
took him to the RCMP Detachment in
Williams Lake.
At the Detachment, Feeney tried
several times to contact a lawyer without
success. The police then administered a
breathalyzer test without telling Feeney
that he had the choice to refuse (the
readings were .08 and .07). Later, even
though Feeney had not yet spoken to a
lawyer, he was questioned. He eventually
admitted to "striking Boyle, stealing
1

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

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

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

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

Circulation:
Dianne Joyal, Police Academy (528-5778)

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(ISSN:0840-8254)

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2

cigarettes, beer, and cash from .[the]
residence." The police subsequently
obtained a search warrant and searched
the trailer, seizing a sum of money hidden
under the mattress believed to have been
stolen from Boyle, as well as a pack of
cigarettes and Feeney's running shoes.
Feeney was fingerprinted and
photographed .the next day and finally
contacted a lawyer.

Issues
At trial, Feeney's counsel asserted
that the police violated ss. 7 (life, liberty
and security of person), 8 (unreasonable
search or seizure), 9 (arbitrary detention)
and lO(b) (retain and instruct counsel
without delay) of the Charter. In effect, it
was argued that the police did not have
grounds to enter the trailer and arrest
Feeney and thus his Charter rights were
violated. Justice Sopinka, writing for the
majority (La Forest, Cory, Iacobucci, and
Major JJ.) (the "Majority") concluded that
"the police indeed violated ss. 8 and 1O(b)
of the Charter and the evidence gathered
as a result should have been excluded
under s. 24(2) of the Charter" (para. 120).
Madame Justice L 'Heureux-Dube,
writing for the dissent (Gonthier and
McLachlin J.), in a stinging and
comprehensive analysis of the Majority
position, found ss. 8 and IO(b) were not
violated; for different reasons, Lamer C.J.
agreed with the conclusions of the dissent
(for a total of four) (the "Dissent").

Section 8
The primary issue in the case was
whether the initial entry into the trailer,
and the subsequent arrest and seizure of
evidence from Feeney by the police was
lawful. Section 8 of the Charter is only
applicable if there is a reasonable
expectation of privacy. In this case, there
was agreement among the Justices that
Feeney was entitled to a reasonable
expectation of privacy since he was living
in the trailer and paid rent; therefore, s. 8
of the Charter applied. The Dissent noted,
however, that an expectation of privacy is
not absolute and if the intrusion by the
police was, on the facts of the case, a
reasonable one then it would be lawful
notwithstanding the expectation of

privacy (para. 22).
The starting point in the analysis of
whether a search violates s.8 of the
Charter is the presumption that a
warrantless search (i.e. a search without
prior judicial authorization) is
unreasonable and in contravention of s.
8 of the Charter. 3 This presumption can
be rebutted if: 1) the warrantless search
was authorized by law, 2) the law itself is
reasonable, and 3) the manner in which
the search is carried out is reasonable
(the "Collins Test'').4

Lawfulness of the Arrest - Was it
Authorized by Law?
On the first leg of the Collins Test,
the Majority examined the pre-Charter
common law on arrests in dwelling
houses. Combining various common law
cases5 ands. 495 of the Criminal Code,
the Majority concluded that a preCharter warrantless arrest following
forced entry into private premises was
legal if: (a) there are reasonable grounds
to believe the person sought is inside,
(b) proper announcement (except in
exigent circumstances) is made prior to
entry (i.e. by giving notice of (i) presence
(knocking or doorbell); (ii) authority
(identify as police); and (iii) purpose
(reason for entry)), (c) the officer
subjectively had grounds to arrest, and
(d) objectively reasonable and probable
grounds to arrest existed (para. 139) (the
"Landry Test").
The next step in the analysis was to
determine whether the police complied
with the Landry Test in the Feeney case.
There was no question that the police
had reasonable grounds to believe that
Feeney was inside the trailer. After all,
they had been told as much by Russell.
The contentious issues were whether
there were reasonable grounds to arrest,
and whether proper announcement was
made.
(i) Objective Grounds for Arrest

On this issue, the Majority held that
the trial judge erred in holding that the
objective test was satisfied. They based
this conclusion on a very technical and,
in the authors' view, specious basis (para.
145-146). The Dissent, on the other hand,

agreed with the trial judge that the
objective grounds were satisfied based
upon the information the investigators
had gathered prior to entering the trailer
(para. 36).
The Dissent based this decision upon
a number of factors including the recency
of the murder, the nature of the community
in which the killing took place (i. e~ rural,
small population, and no traffic in early
morning hours, making it very unusual to
see someone walking away from the scene
of accident), the fact that Feeney had
earlier crashed a vehicle in exactly the
same spot the victim's vehicle was
crashed, and the reasonable inference that
whoever killed the victim had also stolen
his truck (para. 32).
The Dissent concluded that the
Majority failed to take into account the
unique rural characteristics of the
community in objectively assessing the
reasonable grounds, and had instead
examined them in a "vacuum", which had
led them to an incorrect result (para.
34). The Dissent held that while the mere
fact of Feeney being present at the scene
of the accident involving the victim's
truck in the early morning hours might
not be particularly probative in a large
city, it was extremely probative in the
context in which it took place (para. 35).
(ii) Subjective Grounds for Arrest

The Majority held that subjectively
the lead investigator did not believe that
he had reasonable grounds to arrest
Feeney. They reached this conclusion
based on two factors: (a) a very strict,
technical and non-contextual review of
selected testimony from the lead
investigator (para. 142), and (b) the
Majority's contention that ifhe believed
he had grounds to arrest Feeney, he would
have arrested him immediately rather than
waiting until after seeing blood stains on
Feertey's shirt (para. 143). This second
point is a conclusion based not on any
facts presented in this case, but rather on
the particular biases of the Majority.
There are many instances where the
police, for legitimate reasons, do not arrest
a suspect right away even though they
have the grounds to do so, a fact which
was pointed out by the Dissent (para. 45).
In direct contrast to the Majority, the

Dissent concluded that subjectively the
investigators did have reasonable
grounds to believe Feeney committed the
murder, notwithstanding that they did not
arrest him immediately upon locating him
in the trailer (para. 39). The Dissent based
this conclusion on the totality of the
evidence given by the officer, and held
that even though he was unable to
properly articulate the technical legal
terminology on this issue, that did not
invalidate the fact that he acted in a
manner consistent with having the
subjective belief of reasonable grounds
(para.43).
(iii) Proper Announcement

The issue of whether the police in the
Feeney
case
gave
adequate
announcement prior to their entry into
the trailer was not resolved by the
Majority. It was unnecessary to do so,
since the Majority had already decided
that the arrest was unlawful for failing to
meet either the subjective or objective
tests for reasonable grounds. However,
the Majority did suggest that the
announcement was inadequate because
the investigators "were not denied
admission, nor did they announce their
purpose before forcing entry" (para. 141 ).
The authors submit that, on the facts
of Feeney, this ruling is an absurdity,
since Feeney was asleep and the police
knew it. The Dissent also saw the
absurdity of this ruling and held that:
after knocking on the door, calling
out "police" and receiving no
answer, they were perfectly entitled
to assume that [Feeney] was either
asleep or ignoring their requests to
enter... it would have been useless
for them to have called out their
purpose for entry. On the contrary,
the only effective way to satisfy the
notice requirement was to suspend
its delivery until [Feeney] was in a
position to receive it. (para. 55)

Lawfulness of the Arrest - Is the Law
Itself Reasonable?
The Majority next considered whether
the second leg of the Collins Test was
satisfied (i.e. whether the law itself was

reasonable). Shockingly, the Majority held
that "even if the police met the standards
of .Landry and the other cases, a
warrantless arrest in the circumstances of
the case at bar following a forcible entry
is no longer lawful in light of the Charter''
(para. 152).
Although the Majority conceded that
the Landry Test attempted to strike a
proper balance between society's
interests and individual privacy interests
(para. 157), they concluded that it no
longer properly protected the privacy
interests of the individual because
somehow the importance of privacy of the
home had increased "significantly" with
the advent of the Charter (para. 15 8). This
was a stunning revelation since the
Landry Test has been applied by the
police and accepted by the courts for the
14 years since the Charter's inception.
The Dissent did not consider the
constitutionality of the Landry Test
generally. The Dissent did rule, hQwever,
that the Landry Test would constitute a
reasonable limit on a person's expectation
of privacy, even in light of the Charter, in
some cases.

The New Rule
According to the Majority, it is now
insufficient to comply with the Landry
Test or have an arrest warrant to enter a
residence for the purpose of arrest. In
order to satisfy the trespass issue
inherent in the right to privacy, a warrant
must also be obtained which identifies the
dwelling house to be searched and
specifically gives authorization to enter
for the purpose of arrest (i.e. a "warrant
of entry"). Recognizing that there is no
provision in the Criminal Code for such
a "warrant of entry", the Majority held:
If the Criminal Code currently fails
to provide specifically for a warrant
containing such prior authorization,
such a provision should be read in.
(para. 163) (emphasis added)
Apparently the investigators could
have simply watched the windowless
trailer while someone went to get a warrant
back in Williams Lake (para. 167). In the
opinion of the authors, this view is overly

3

simplistic and does not take into account
the realities of the situation. For example,
it assumes that in 1991 a justice of the
peace or even a judge would have granted
such a "warrant of entry" when no
provision existed in law to grant it. More
disturbing, the view of the Majority
places the impossible onus on the police
to see into the future and predict the rules
that the sec will impose upon them
retroactively.
The Majority's arguments are not only
unpersuasive but raise issues of their
own good faith. There was no logical
requirement to retroactively apply this
new rule. Even if the Majority felt
compelled to overrule the Landry Test,
they could have suspended its
application in the Feeney case because
there was no way for the investigators to
know about it. In the opinion of the
authors, applying the new rule
retroactively brings the administration of
justice into disrepute.

Exigent Circumstances r
According to the Majority, the only
exception to the new rule requiring a
"warrant of entry" is "hot pursuit". This
includes the situation where an officer
arrives on the scene shortly after a
suspect has taken refuge in a dwelling
house, and the officer does not know the
identity of the suspect in order to obtain
a warrant to arrest. 6 The Majority justified
this exception because the officer is acting
on the basis of personal knowledge. The
Majority did not believe, however, that
the facts of Feeney supported "hot
pursuit".
Interestingly, the Majority refused to
address the concept of "exigent
circumstances" as delineated from "hot
pursuit" as an exception to the new rule,
but stated ominously, "I do not agree with
[the Dissent] that exigent circumstances
generally necessarily justify a
warrantless entry-- in my view, it is an
open question" (para. 162). In any event,
the Majority did not accept that Feeney
was a case of "exigent circumstances"
involving the possible destruction of
evidence, because the police did not
know for a certainty that the evidence
existed (i.e. were not acting based on

4

personal knowledge).
The Dissent took a more expansive
view of the type of situations which might
justify a warrantless entry into a dwelling
house for the purpose of arrest, holding
that hot pursuit is but one example of the
type of circumstances which could be
considered exigent (para. 65). The Dissent
accepted that preventing the removal or
destruction of evidence justifies setting
aside the strict rules concerning sanctity
of the home (para. 72). The Dissent
concluded that what constitutes exigent
circumstances should not be strictly laid
out, but rather should be dealt with on a
case-by-case basis (par. 68).

Section 10
On the issue of whether Feeney was
properly advised of his right to counsel,
the Majority cited several reasons to
conclude he was not. The Majority ruled
that because the officer did not give
Feeney the Charter the moment he
touched his leg, "the appellant had his
s. l O(b) rights violated" (para. 171 ). This
ruling is incredible because it interprets R.
v. Therens 7 far more strictly than had
previously been done. Moreover, the
Majority ruled that the rights outlined in
R. v. Manninen 8 were violated (i.e. provide
reasonable opportunity to exercise right
to counsel and cease questioning until
counsel consulted). Here, the Majority
made an issue of the fact that no phone
existed in the trailer, but failed to properly
consider the fact that the accused declined
to exercise his rights when initially offered
at the trailer.
The Majority also ruled that the
Charter recitation given by police at the
scene "did not satisfy the informational
requirements of s. 1O(b )"(para. 173), but
did not state at any point what
"informational requirements" were
deficient. As a result, the Majority's ruling
on this point is not instructive, especially
considering that the trial judge and Court
of Appeal ruled that police complied with
s. lO(b).
Ori the right to counsel issue the
Dissent held that the law does not require
the police to advise a suspect the instant
he is detained. The Dissent held that the
police must be given some latitude to

assess and gain control of a situation
before proceeding (para. 100). In the
present case, the Dissent found the
following factors made it reasonable for
the investigators to temporarily delay
giving Feeney his Charter rights: (a) the
violent nature of the case; (b) the
uncertainty facing the officers upon
entering the trailer as to how the suspect
might react; (c) they were walking into a
dark room; and ( d) the suspect was
apparently asleep.
The Dissent
concluded that it was inconceivable that
the few minutes delay involved could
amount to a Charter breach (a strong
condemnation of the Majority's finding)
(para. 100).

The Warrant
The police subsequently obtained a
search warrant for the money, cigarettes,
and the accused's shoes. The Majority
ruled that the warrant was issued on
information obtained as a result of
constitutional violations; specifically, the
initial entry of the trailer (unlawful arrest),
the initial interview (unlawful arrest and
right to counsel violation), and the
subsequent interviews (right to counsel
violation). Consequently, the Majority
ruled that "the search and seizure under
the warrant also violated s. 8."

Fingerprints
After the accused was taken to the police
station, he was fingerprinted; The
accused's fingerprints matched prints
found on the victim's refrigerator and on
an empty beer in the victim's truck. R. v.
Beare 9 held that fingerprinting as an
incident to a lawful arrest did not violate
the Charter. In the present case,
however, the Majority held that the arrest
was unlawful and involved a variety of
Charter breaches. The Majority found
there was a further violation of s. 8 ofthe
Charter relating to the fingerprints.

Exclusion of Evidence Under
Section24
Section 24(2) of the Charter allows
for the admission of evidence improperly

obtained, provided the administration of
justice would not be brought into
disrepute. Notwithstanding that the trial
judge, Appeal Court, and Dissent found
that the police were acting in good faith,
the Majority not only found otherwise,
but used unjustifiably harsh words to
characterize police conduct in this case.
For example, the Majority stated the
police "flagrantly disregarded the
appellant's privacy rights and moreover
showed little regard for his s. I O(b) rights"
(para. 195). Citing R. v. Kokesch,w the
Majority stated the police must be taken
to be aware of judicial decisions and the
circumscription of police powers that the
judgments represent. In this case "the
police either knew they were trespassing,
or they ought to have known" (para. 189).
The significance of the Majority's ruling
is that ifthe police do not know what the
Courts have decided, the police will be
deemed to be acting in bad faith.
As a result, all the evidence (including
the shoes, cigarettes, and money) was
ruled inadmissible because in the opinion
of the Majority, "The serious disregard
for the appellant's Charter rights ...
suggests that the admission of the
evidence would bring greater harm to the
repute of the administration ofjustice than
its exclusion" (para. 198). The Majority
allowed the appeal, set aside the
conviction, and ordered a new trial.
The Dissent is diametrically opposed
to the Majority decision on every
important issue in the case. While the
Majority chastised the investigators for
almost everything they did in the course
of the investigation, the Dissent stated:
... from the first stages of the
investigation through to the
apprehension of the appellant the
police proceeded in a forthright and
proper manner; indeed.,. had the
police not moved immediately to
arrest, it is likely that they would
have been criticized for allowing a
murderer to continue to remain at
large in the community (para. 116)....
Given the brutality of the murder
scene and the seeming randomness
of the act, there is little doubt that
the police felt obliged to act quickly
in order to prevent further violence

of that nature in the community.
For this foresight, they should be
commended, not rebuked (para.
117).

Implications for the Police
The full impact of the Feeney case
cannot be judged at this time. The most
obvious implications forthe police are:
1. The Landry Test will no longer apply
as a general rule. The new rule is that
"warrantless arrests in dwelling houses
are prohibited," except in the case of
"hot pursuit." The issue of "exigent
circumstances" is not resolved at this
time.
2. An arrest without permission in a
dwelling house is only authorized where
either:
a. police have an arrest warrant,
have also obtained a "warrant of
entry" and have made proper
announcement before entering; or
b. the police are conducting an
investigation but have not yet
obtained a warrant for arrest. In
these cases, the police must
comply with the Landry Test,
obtain a "warrant of entry" and
make proper announcement before
entering.

statutory deficiencies.

5. The meaning of detention/arrest may
have been expanded because the Majority
concluded that it arises at the moment of
detention. (i.e. in Feeney the moment the
investigator touched Feeney' s leg). If this
is the case, then police officers may have
to begin reciting a suspect' s rights under
the Charter as soon as they initiate
contact with a suspect, regardless of other
considerations such as the police officer's
safety. The Dissent in Feeney found that
there is some justifiable latitude as to when
the Charter be given. Hopefully, the SCC
will provide clarification on this issue and
hopefully the view of the Dissent will
prevail.
6. The definition of"bad faith" may have
been expanded to include situations where
the police act contrary to a court ruling
because they are unaware of it. In Feeney,
the Majority made it clear that the police
"ought" to know what the Courts have
decided. If not, according to the Majority,
the police will be deemed to be acting in
bad faith. This ruling should be a "wakeup" call to police management that
someone within each police agency must
be designated to monitor case Jaw, and
front line officers must be provided with
frequent legal updates to ensure their
compliance with both statutory and case
law.

Conclusion
3. The "warrant of entry" must be based
upon reasonable and probable grounds
to believe the suspect is within the
specified premises at the time the
warrant is sought. It must identify the
address to be searched and specifically
authorize entry into that premises to
search for the suspect (whether named
ornot).
4. Authority for the issuance of such a
warrant of entry does not exist in the
Criminal Code. As an interim measure
it appears that s. 487 warrants may be
utilized with some modifications. Check
with your department for direction on
this issue. In the long-term, the federal
government may consider amendments
to the Criminal Code to address any

It appears to the authors that the
Majority judged the police with
unnecessary
harshness
(but,
paradoxically, never criticize the murderer).
In this case, the police were investigating
the most serious of all crimes in the field,
acting quickly in order to apprehend the
offender (which is in the interests of all
individuals in society}, without the benefit
of hindsight and law clerks researching
the law at their leisure. Significantly, the
trial judge, the Court of Appeal, and four
justices of the sec found, in hindsight
and with great deliberation, that the police
were acting properly. Further, it appears
that the Majority analysis occurred in a
judicial vacuum unconnected to
investigative, operational and common

5

country, when they see this kind of
sense realities.....- --- ----- - - - -cannot-be-secure_inJheJmowledge that
decision handed down by the
criminals who break into one's home will
Finally, the SCC has to answer for its
highest court in the land? ....Is this
own good faith. The police cannot be
not be tolerated by society, "privacy" has
Canadianjustice? Doesn'tanybody
expected to function in such a chaotic
no practical meaning. Considering the
care?
legal atmosphere, where even the "best"
facts of this case, it seems obvious that it
legal minds in the country cannot agree
is preferable to have the police enter the
To Richard and Leona's question, the
on basic issues. In such cases, it would
dwelling house of a suspected murderer
answer is found in Sopinka J. 's ruling,
appear only fair that police be given the
without permission in order to arrest than
"Any price to society occasioned by the
benefit of the doubt. The SCC, over the
to have criminals invade one's dwelling
loss of such a conviction is fully justified
last few years, has consistently failed to
house with almost certain impunity as a
in a free an~ democratic society which is
provide clear, unified or deliberate
result of laws that do not have the
governed by the rule of law" (para. 198).
direction to the police on fundamental
interests of the innocent as a priority.
The authors suggest that society would
issues. R. v. Stillman 11 is another recent
Ironically, the Majority talks of the
not agree with the Majority that "any
case where the sec rendered a decision
importance of "increased protection of
price" is justified, and we wonder with
which fundamentally fails to provide
privacy of the home" , but what about
the Heards, "Is this Canadian justice?"
guidance to the police, in particular on
the "privacy" of the victim, Mr. Frank
the issue of exclusion of evidence under
Boyle, and what about increased
s. 24 (2) of the Charter. The result has
protection for each individual of society?
Endnotes
In a letter to the Vancouver Sun, 13
been complete chaos. Such divisive and
1(1997] S.C.J. No. 49 (Q.L.) File No. 24752
impractical decision making and conduct
Richard and Leona Heard, members of the
(22 May 1997).
by the sec makes the job of the police
victim's family wrote:
2 -(1990] 2 S.C.R. 1199.
(not to mention lawyers and judges)
3Hunter v. Southam Inc., [1984] 2 S. C.R. 145.
extremely difficult. It also renders unfair
On June 8, 1991, our stepfather and
4
R. v. Collins, (1987] 1 S.C.R. 265.
the opinion expressed by the Majority in
father-in-law, Frank Boyle, was
5 -Ecc/es v. Bourque, (1975] 2 S.C.R. 739, R.
bludgeoned to death in his home in
Feeney that the police ought to know the
v. Landry, (1986] 1 S.C.R.145andR. v. Storrey,
Likely, B.C., by an intruder who hit
common law or else be deemed to be
(1990] 1S.C.R.241.
him six times on the head with a
acting in bad faith, since the law is so
6 R. v. Macooh, [1093] 2 S.C.R. 802, which
crowbar.... [He] was 86 years old,
difficult to decipher from sec decisions.
Involved a suspect fleeing from police after
committing a summary conviction offense.
What is particularly disturbing about
went to church each Sunday and
7 ·[1985] 1S.C.R.613.
this case is that the Majority do not explain
took mail to people who couldn't
8-(1987] 1 S.C.R. 1233.
how a provincial court judge or justice of
get out. He fed birds and
9 -(1988] 2 S.C.R. 387.
the peace (who do not have inherent
squirrels .... Does our Charter of
10-(1990] 3 S.C.R. 3 at 32.
authority) have the power to "read in"
Rights allow our police
11-(1997] 1 S.C.R. 607.
provisions. It is also unforgivable that
departments to do their jobs of
protecting law-abiding citizens of
such a major shift in law would be made
12 -Jim Bronskill, "Trial lawyers angry at B.C.
request to Supreme Court", The Weekend Sun
our country? .... How do we teach
without warning to the legislators or time
(21 June 97) at A3.
our children and grandchildren to
to develop a legislative response. The
13
-Letters to the Editor (30 May 1997) at A20.
have respect for the laws of our
authors reject the assertion of Feeney's
counsel that the Majority was ''well aware
of the immediate ramifications" of this
case 12 • While some defence counsel may
"scoff' at the 2, 700 cases reportedly
affected in B.C., that number only reflects
data from 38% of the RCMP detachments
in B.C. and did not include municipal
cases. The actual number ofcases affected
is much higher and the national figures
will be in the tens of thousands.
Finally, it appears to the authors that
the balance between society's interests
and the individual's privacy interests, as
articulated in Landry, have been
abandoned by this case. What the
Majority has failed to understand is that
"privacy" rights are a legal fiction unless
one is able to enjoy the more fundamental
right to "liberty and security". If one
Reproduced with Permission from Ingrid Rice

6

New Leadership Development
Program Leads to Degree
Pat Lawrence

The Justice InstitUte (JI), in
partnership with Simon Fraser University
(SFU), is offering a unique Leadership
Development Program targeted to start in
January, 1998 (the Program). The Program
involves part-time study over a three year
period leading to a Bachelor of General
Studies degree - Integrated Studies
Program with a focus on Justice and
Public Safety Leadership.
Leaders from among Il's major clients
took part in a two-day planning forum last
Fall to develop the Program's vision,
purpose and goals. The Program is
designed to train leaders in justice and
public safety who will:
• prepare for the future in a
creative and visionary way;
• foster inter-agency cooperation;
• balance personal goals with
corporate objectives;
• mentor and coach others;
• effectively deal with conflict and
solve problems;
• do the right things, not just the
popular things; and
• have personal credibility.
The Program is tailored to highly
motivated mid-career professionals with
at least ten years experience injustice or
public safety. This group sees the
attainment of a university degree as a
desirable objective for its intrinsic value
as well as for career development. The
Program will appeal to those professionals
who want the opportunity to get a
university degree while continuing to
work full time.
Once admitted to the Program,
students will be placed into a team of
individuals from other Justice and Public
Safety organizations. This team
progresses through a schedule of courses
as a whole, allowing leaders to share
experiences and form a support network
that can be of benefit long after the studies
are over. As mentioned, the Program is

designed to be completed on a part-time
basis over three years. Students take two
courses each semester (three semesters
per year). The current work experience of
each student provides a rich source of
material for the classroom.
The first team of students will begin
the Program next January at the Justice
Institute campus in New Westminster.
Future programs will be more accessible
with some parts being delivered using
distance education technologies.
Entry into this Program is at an
advanced level. Instead of having to
complete the usual 120 credits required
to obtain a Bachelor's degree, students
who successfully attain 60 credits will
receive a Bachelor of General Studies Integrated Studies Program from SFU.
The 60 credit requirement is made up
of 48 core and 12 electives courses. Topics
in the core course of study include:
• organizational behaviour
• ethnic relations
• research methods
• human rights and civil liberties
" conflict resolution
• gender relations
• human resources management
• ethical decisions and public
policy
• organization development and
change
• public policy issues in justice
and public safety

$13,500, to be paid in instalments over
three years.
To be considered for admission into
the Program, students are required to have
the following:
• some formal post-secondary
education OR an acceptable
combination of technical training
plus in-house training and some
university or continuing
education courses
• at least 10 years work
experience in a relevant field
• basic writing skills and computer
literacy
• support of current employer
In the coming decades, leaders in the
fields of justice and public safety are
certain to face unprecedented challenges
which require innovative and visionary
solutions. The success a leader attains
in tackling these problems will be directly
related to the training he or she receives.
The Il and SFU have created this unique
Leadership Development Program m
response to this need.

For Futtb¢r Inforbiation
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·
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PatLa~ene~coorclm~tor .

Centre for ~aclershipDe:velopmtnt
The elective courses can be chosen
from three streams: criminal justice, public
safety and a general category. In addition
to the core and electives, students will be
required to complete a major project
connected to their workplace. All courses
will be delivered using methods that foster
development skills in problem solving,
teamwork, critical thinking, writing, and
presentation.
Tuition for the entire Program is

.

J..sticelnstitutef>f8.C. ·
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••.•T~Jephcme: SZS..55~9·

x 1t•J:~ <$2~ss19 ••.. . ·.• ·

7

Operational Notes
R. v. Stillman (SCC)
Ruled that evidence conscripted unlawfully from an accused will generally
be excluded under s. 24(2) of the Charter
(i.e. trial fairness violated). Evidence will
be non-conscriptive evidence if the accused was not compelled to participate in
the creation or discovery of evidence (i.e.
it existed independently of the Charter
breach in a form useable by the state).
Evidence will be conscriptive when an
accused, in violation of his I her Charter
rights, is compelled to incriminate him I
herself at the behest of the state by means
of a (a) statement, (b) use of the body, or
(c) the production of bodily samples. As
a result, even real evidence can be excluded if the accused is conscripted into
producing the evidence contrary to a
Charter right.
R. v. Godoy (Ont. C.A.)
Police had authority to enter residence
without permission (and despite denial
by occupant) in response to a disconnected 911 call. While the police did not
have reasonable and probable grounds
to believe an indictable offence had been
committed, they were obliged to investigate further the distress call. Forced entry was justified to determine the cause
of the distress and give aid if necessary.
The nature ofa 911 hang-up call leads to
a reasonable belief that someone inside
was in serious distress and their life or
safety could be in danger.
R. v. Bennet (BCSC)
Accused is not entitled to call legal
counsel prior to submitting to a roadside
screening test. Allowing accused to call
a lawyer prior to test created delay and
demand was then outside purview of
"forthwith". Officers must be unequivocal that accused is not entitled to call a
lawyer prior to test.

8

R. v. Leipert (SCC)
Identity ofconfidential informer or information that may tend or have potential
to identify informer is strictly confidential and not subject to disclosure to defence. The "informer privilege" is sacrosanct. There is only one exception: where
the accused demonstrates that the identity of the informer is essential to proving ·
innocence.
R. v. Whitford (Alta. C.A.)

The Crown cannot use statements
obtained in violation of the Charter to
impeach an accused's credibility. This is
contrary to the B.C.C.A. in R. v. Cook
which held that a statement obtained in
violation of the Charter could be used
provided it was not used to incriminate
as part of the Crown's case.

R. v. Calder (SCC)
Held that a statement obtained from
the accused in violation of the Charter is
inadmissible as part of the Crown's case
to challenge credibility.
R. v. Goodwin (BCCA)

R. v. Mitchell (BCSC)
Court ordered a stay of proceedings
where a hospital had destroyed the blood
sample of a sexual assault victim. The victim was taken to the hospital by police
where a "rape kit" was utilized. A blood
sample was taken. It was later destroyed.
The accused argued the sample was crucial to showing the complainant's intoxication level. The Court found there was
a reasonable possibilityllianhe .iQformation contained in the sample wa8 logically probative to an issue at the trial (i.e.
credibility) and stayed the charge.

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There is no requirement that a complainant suffer ill health or a major disruption in his I her life to obtain protection
against criminal harassment.

R. v. Carosella (SCC)

Crossin & Scouten
Barristers & S-ollcltors

The loss or destruction of evidence
against an accused can be grounds for a
stay of proceedings under the Charter.
The loss or destruction of evidence can
affect the ability of an accused to make
full answer and defence as provided bys.
7 of the Charter.

900 • n1 Homby stNet
Vancouver, S,C, VUlS4
Telephone: (604) 6694242 .

FAX: (604) 689-3292