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!"#$%&'()*9&(),3)*:31#&A newsletter devoted to operational* police
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IN MEMORIAM
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IN-SERVICE:	
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is no easy task. The rule of law is a
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authority
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#
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#
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those split second decisions are made, there is no benefit of
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academic
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#
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#
#
# 01234#U6#5++*
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The police make decisions
every day that require careful and

prudent deliberation. These decisions impact people’s lives, in
!"#$%&'(forever.
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#
saying that, “Doctors bury their mistakes while lawyers send
?C5H=4','$;;H4'L
theirs to prison. Police officers do a little of both.” As
04'J=E1<'E>3'J<EK'JEF4
professionals, the police owe it to themselves, their families,
*E1/GM(D125'LNN,
their organizations, and their communities to pursue a path of
continuous learning that keeps pace with today’s demands. In
Service: 10-8 continues to be a proud leader in bringing legal
information to the attention of those serving on the front line.
#
#
#

#
#
#

!"#$%&'()*5"6#*7%83#$"#

Be Smart & Stay Safe

Volume 16 Issue 1

Volume 16 Issue 1 - January/February 2016

Highlights In This Issue
What’s New For Police In The Library

3

Using Flashlight To Scan Inside Vehicle Was Not A
Charter Search

5

Officer’s Request To Come To Police Car For ID
Purpose Reasonable

8

Police Did Not Create Exigencies: Warrantless Entry
Lawful

10

No Privacy Interest In SDM:Vehicle Lawfully Seized

15

Appeal Court Split On Whether Detention
Occurred

17

No Positive Duty On Police To Ensure Detainee
Spoke To Counsel

21

Exceeding 24-Hour Delay In Presenting Before
Justice Not Necessarily Arbitrary

25

Nightclub Staff Not Acting As Police Agents When
Detaining Assault Suspect

27

Accused Not Detained In Hospital: s. 10(b) Warning
Not Required

29

Psychological Detention Without s. 10(b) Warning
Breached Charter

31

Unless otherwise noted all articles are authored by
Mike Novakowski, MA, LLM. The articles contained
herein are provided for information purposes only
and are not to be construed as legal or other
professional advice. The opinions expressed herein
are not necessarily the opinions of the Justice
Institute of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to this
newsletter.

Upcoming Courses
Advanced	
 Police	
 Training
Advanced training provides opportunities for skill
development and career enhancement for police
officers. Training is offered in the areas of
investigation, patrol operations and leadership for
in-service municipal and RCMP police officers.

JIBC	
 Police	
 Academy
See Course List here.
!

March 1, 2016: 9 am - 3 pm
CFB Esquimalt, BC

National	
 Library	
 of	
 Canada	
 
Cataloguing	
 in	
 Publication	
 
Data

!

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.

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JIBC New Westminster,
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Graduate Certificates

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•
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PAGE 2

Intelligence Analysis
or
Tactical Criminal Analysis
www.jibc.ca

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“[T]he toxic combination of drugs and guns poses a pernicious and persisting
threat to public safety and the welfare of the community.” –
R. v. Wong, 2012 ONCA 767!

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C3#A#4)7!FE+:#8%-!"#$%!#+!:<%!)E:<'3!)4=!%=#:'3!'9!LG4!>%3(#8%M!NOPQR/!)!6%%3!3%)=!4%*+7%::%3!=%(':%=!:'!'6%3):#'4)7!6'7#8%!

Volume 16 Issue 1 - January/February 2016
Mindful management: the neuroscience of trust
and effective workplace leadership.
Dalton A. Kehoe.
Richmond Hill, ON: Communicate for Life, Ltd.,
2015.
HD 57.7 K44 2015

WHATʼS	
 NEW	
 FOR	
 POLICE	
 IN	
 
THE	
 LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
recent acquisitions which may be of interest to
police.

Bulletproof spirit: the first responder's essential
resource for protecting and healing mind and
heart.
Captain Dan Willis, La Mesa Police Department.
Novato, CA: New World Library, 2014.
RA 785 W533 2014
Change management: a guide to effective
implementation.
Los Angeles, CA: Sage, 2016.
HD 58.8 M33 2016
The eighty-year rule: what would you regret not
doing in your lifetime?
Claire Yeung.
Bloomington, IN: Iuniverse Inc., 2015.
BF 637 S4 Y48 2015

The new one minute manager.
Ken Blanchard, PhD, Spencer Johnson, MD.
New York, NY: William Morrow, an imprint of
Harper Collins Publishers, 2015.
HD 31.2 B53 2015
Not everyone gets a trophy: how to manage the
millenials.
Bruce Tulgan.
Hoboken, NJ: Jossey-Bass, 2016.
HF 5549.5 M63 T854 2016
Resilience: how to cope when everything around
you keeps changing.
Liggy Webb.
Chichester: Capstone, 2013.
BF 698.35 R47 W43 2013
Resilience: why things bounce back.
Andrew Zolli & Ann Marie Healy.
New York, NY: Free Press, 2012.
TA 169 Z65 2012

The influential project manager: winning over
team members and stakeholders.
Alfonso Bucero.
Boca Raton, FL: CRC Press, 2015.
HD 69 P75 B776 2015

The resilience dividend: being strong in a world
where things go wrong.
Judith Rodin.
New York, NY: PublicAffairs, 2014.
BF 698.35 R47 R63 2014

The like switch: an ex-FBI agent's guide to
influencing, attracting, and winning people over.
Jack Schafer, Ph.D., with Marvin Karlins, Ph.D.
New York, NY: Simon & Schuster, 2015.
BF 575 F66 S33 2015

The Sage handbook of action research.
edited by Hilary Bradbury.
Los Angeles, CA: Sage Reference, 2015.
HM 571 H36 2015

Managing the unexpected: sustained performance
in a complex world.
Karl E. Weick, Kathleen M. Sutcliffe.
Hoboken, NJ: John Wiley & Sons, Inc., 2015.
HD 49 W45 2015

The right decision: evidence-based decision
making for government professionals.
Paul S. Maxim, Len Garis, Darryl Plecas, and Mona
Davies.
Abbotsford, BC: School of Criminology and Criminal
Justice, University of the Fraser Valley, 2015.
JF 1525 D4 M39 2015

PAGE 3

!

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“[T]he toxic combination of drugs and guns poses a pernicious and persisting
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R. v. Wong, 2012 ONCA 767!

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Volume 16 Issue 1 - January/February 2016

USING	
 FLASHLIGHT	
 TO	
 SCAN	
 
INSIDE	
 VEHICLE	
 WAS	
 NOT	
 A	
 
CHARTER	
 SEARCH
R. v. Diamond, 2015 NLCA 60
A police officer stopped a pick-up
truck on a remote road at 12:55 am
for travelling 80 km/h in a 50 km/h
zone. He radioed in the licence
number and was advised to be
cautious because the registered owner had been
arrested for drugs before, and had a scanner and a
knife. As the officer approached the vehicle, he saw
a police scanner above the driver-side window visor
and noted the truck body was higher than usual. It
had large tires and a suspension lift. When asked for
his driver’s license and registration, the accused
checked his window visor but could not find it. The
officer then requested that the glove box be
checked. When the accused leaned towards the
glove box, the officer saw some money the accused
had been sitting on.
With at least part of his head and hand through the
open window, the officer shone his flashlight on “an
unsheathed hunting type knife” next to the driver’s
side door. The knife was within the accused’s reach
when seated. The accused was arrested for
possessing a weapon dangerous to the public peace
and he was placed in handcuffs. He was patteddown at the roadside and a small bag of cocaine fell
from his clothing. He was advised of his right to
counsel, which he declined, and was given the
standard police caution. A subsequent strip-search at
the police station led to the discovery of an
additional 28 small bags of cocaine totaling 12
grams.

The judge, however, found the initial stop was not a
ruse to justify a drug or weapon search. The accused
was driving 30 km/h over the speed limit. Dispatch
told him to exercise caution. As an officer working
alone, in the dark, and told to be cautious, he
needed to take a reasonably thorough view of the
vehicle. “Police work is a dangerous job, particularly
when one is unaccompanied in the dead of night,”
said the judge. “Vehicles are capable of transporting
weapons, armaments and contraband.” Although the
accused had an expectation of privacy while
operating his vehicle, it was a reduced one, and the
officer’s inspection of the truck’s cab did not amount
to a search. The judge stated:
Where speed is a factor, the officer must be
attentive to the possibility of impairment by
alcohol or drugs. Where one is alerted to the
possibility of the presence of a knife, one might
also be expected to rotate one’s flashlight around
to check the environment. This was not an open
convertible or sports car which the officer could
survey from above. In order to view the vehicle
in a proper manner to address the concern of
impairment or personal safety around the
possible presence of a weapon, the skills of a
gymnast were not needed. Nonetheless, the
height of the vehicle required the head of the
officer and the flashlight to minimally enter the
open window area and the knife was seen
immediately.

Newfoundland Provincial Court
The accused argued that his rights under
ss. 8 and 9 of the Charter were breached.
In his view, the act of the officer leaning
his head in the truck and shining his
flashlight constituted a warrantless search without
sufficient grounds to do so. He submitted the
officer’s conduct was “quite egregious” and a “ruse”.

The knife was in plain view and seeing it was
inadvertent. “The officer did not expect to find a
knife,” said the judge. “All the officer did was a
routine scan of the vehicle with his flashlight as he
had to do in that place and that circumstance and

PAGE 5

Volume 16 Issue 1 - January/February 2016
The judge found that the officer minimally
inserted his head and a hand holding a flashlight
inside the vehicle only briefly, to assess his
immediate surroundings for his own safety. This
minimal intrusion was necessary due to the
height of the truck. I agree with his finding that
this did not constitute a search. [para. 18]

“There is a significant amount of
jurisprudence affirming that a police
officer may use a flashlight at night to
observe activities or objects inside
vehicles.”
the physical dimensions of the vehicle required a
minimal insertion of head, hand and flashlight far
enough through the open window to allow a view of
this large knife, unsheathed and available for ready
use in the lower door compartment on the driver’s
side of the truck.” The judge found the officer had
the necessary reasonable grounds to justify an arrest
under s. 495(1) of the Criminal Code for possessing a
weapon for a purpose dangerous to the public
peace. The searches incidental to the arrest that
uncovered the cocaine were therefore reasonable.
The accused was convicted of unlawfully possessing
a weapon dangerous to the public peace and
unlawful possession of cocaine for the purpose of
trafficking.

His visual inspection of the truck was lawful. As
well, the plain view doctrine applied. The officer
was in a lawful position from which to view the
unsheathed knife.

Arrest
The majority of the Court of Appeal also agreed that
the accused’s arrest was lawful. The officer had not
only the required subjective belief (as conceded by
the accused) but it was also objectively reasonable
in the circumstances. The totality of the
circumstances not only included the presence of the
knife but also the following:

Newfoundland Court of Appeal
The accused appealed his
convictions by contending that
the trial judge erred in finding
that the officer’s inspection of
the cab was not a search. He argued that the officer
did more than a simple visual inspection. Rather he
performed a search when he physically placed part
of his head and hand while holding a flashlight
inside the truck’s interior. He also submitted that the
discovery of the knife alone was insufficient to justify
the arrest. Therefore, the pat-down and strip searches
that revealed the cocaine were unreasonable. In his
opinion, all of the evidence should have been
excluded under s. 24(2) of the Charter.

Search
Justice Harington, speaking for the majority, noted
that “there is a significant amount of jurisprudence
affirming that a police officer may use a flashlight at
night to observe activities or objects inside vehicles.”
He then concluded that the officer’s visual
inspection of the cab’s interior in this case did not
amount to a search:

PAGE 6

(i)

The knife was located on the driver’s side,
where it would be most easily
accessible;
(ii) It was unsheathed. If the knife was
related to illegal drug activity, it
would be advantageous to have it
unsheathed for quicker access;
(iii) Involvement in the drug trade can
be a motive to carry a weapon for
a purpose dangerous to the
public;
(iv) The officer knew the [accused]
had previously been arrested for
possession of drugs;
(v) The [accused] was carrying a
machete type knife when he was
last arrested for possession of
drugs;
(vi) The [accused’s] vehicle was
carrying a police scanner. That is a
known drug-trafficking accessory;
and
(vii) The [accused] was carrying a
police scanner the last time he
was arrested for possession of
drugs. [para. 25]

Volume 16 Issue 1 - January/February 2016

BY THE BOOK:
Arrest: Criminal Code

the otherwise dark interior of the vehicle,” he said,
“but that, without permission, the officer physically
placed himself inside the interior of the vehicle, a
space where the [accused] had a reasonable
expectation of privacy.” Justice White continued:
A police officer is either outside the vehicle
conducting a visual inspection, whether aided
by a flashlight or not, or inside the vehicle to
such extent that he can see items it would be
impossible to see from outside and the public’s
access to which the owner of the vehicle has
sought to restrict. The degree of intrusion in the
case at bar is no different in principle to the
officer opening the door and sitting on the car
seat. There is either an intrusion into the vehicle
or there is not. Here there was, resulting in a
warrantless search. [para. 34]

s. 495(1)(a) A peace officer may arrest without
warrant
(a) a person who has committed an indictable
offence or who, on reasonable grounds, he
believes has committed or is about to commit
an indictable offence ...

The majority, however, did offer this caution:
In reaching this conclusion, I am not suggesting
that, in every instance when an unsheathed knife
is located in a door pocket beside the driver of a
vehicle, this would be the basis for arresting the
driver for possession of a weapon dangerous to
the public peace. It is the confluence of
circumstances that supports the arrest for that
offence in this case. The officer had been
warned to proceed with caution since the owner
of the vehicle had previously been charged with
drug offences and, at the time, he had had a
knife. The officer was alone on a rural road at
12:55 a.m. The officer saw that the [accused]
had been sitting on an amount of money which
was visible when he leaned over to open the
glove box. In the circumstances, he reasonably
suspected the involvement of drugs which
alerted him to the possibility that the knife was
intended for a use dangerous to the public
peace, including to himself. [para. 21]

This warrantless search, however, was justified on
the basis of officer safety. “While the stated concerns
for officer safety were rather vague and perhaps a
different conclusion was available, considering all of
the circumstances and the law ..., I cannot say that
the trial judge made a palpable and overriding error
in finding that officer safety was a concern,” said
Justice White. “There was no ‘unreasonable’ search
and, therefore, no violation of the [accused’s]
section 8 rights for this reason alone.”
Justice White, unlike the majority, found the arrest to
be unlawful because the officer did not objectively
have reasonable grounds:

Since the arrest was lawful, the seizure of the
cocaine was justifiable incidental to the accused’s
arrest. The accused’s appeal was dismissed.

A Different View
Justice White, in a dissenting judgment,
concluded that the police officer, in
placing his head and hand into the
accused’s vehicle and scanning it with a
flashlight, did conduct a search. “The fact
determinative of this issue is not that the officer
relied on the assistance of a flashlight to illuminate

PAGE 7

My colleague references a number of loosely
connected facts each of which is perhaps
individually suspicious and somewhat indicative
of the [accused] being on occasion involved in
unsavoury activities. However, the question on
this appeal is whether, taken together, all of
these facts could have reasonably and probably
indicated to the officer that the [accused] had
committed, was about to commit or was
committing the offence of possessing a weapon
for purposes dangerous to the public peace or
for committing an offence contrary to section 88
(1) of the Criminal Code. In my view they do
not. Simply put, the officer’s mere general
knowledge that the [accused] had been
previously arrested for drug offences and during
that arrest was in possession of a knife, does not

Volume 16 Issue 1 - January/February 2016

OFFICERʼS	
 REQUEST	
 TO	
 COME	
 
TO	
 POLICE	
 CAR	
 FOR	
 ID	
 
PURPOSE	
 REASONABLE

give the officer reasonable and probable grounds
to arrest the [accused] for possessing a weapon
for a purpose dangerous to the public peace on
any subsequent occasion when the officer sees
the [accused] with a knife. Otherwise a person
in the position of the [accused] would always
thereafter be at risk of arrest if he ever carried a
knife again, even though possessing such a knife
is not per se unlawful. This is especially so when
there is no evidence the knife was used to
commit any offence or used for dangerous
purposes on either occasion.

R. v. Shipley, 2015 ONCA 914
A uniformed police officer working
nightshift in a high drug trafficking
area saw a car at 9:48 pm stopped
diagonal to the marked parking stalls
in a bank parking lot. The car’s interior
lights were on and the driver was alone in the
vehicle looking down as if doing something on his
lap. When the driver looked up and saw the officer,
he appeared startled “like a deer caught in the
headlights.” The officer did a u-turn to go back and
speak to the driver. He wanted to determine if the
accused was licensed and to investigate why he was
in the empty bank parking lot at night, parked
strangely, with the interior lights on and why he
would be startled upon seeing the police. At the
same time, the car left the parking lot turning in the
opposite direction. The officer did another u-turn
and followed the vehicle, entered the license
number into his computer and learned it was a
rental.

A knife is not a prohibited or restricted weapon
such as a gun. Unlike a gun, a knife is inherently
a tool, not a weapon. The fact of possessing a
knife is not, without more, a criminal offence.
While knives may be considered weapons
within the meaning of section 2 of the Criminal
Code with possession in some circumstances
regulated by section 88(1), there is not a scintilla
of evidence in this case that the [accused] had
previously used the knife dangerously, that he
was attempting to use the knife dangerously, that
he was committing any offence with the knife or
that he had any purpose dangerous to the public
peace. Even though it was nighttime, the
[accused] was driving alone in his vehicle,
without exposing any other persons to the knife
and he cooperated fully with the officer. I cannot
conclude that a reasonable person would say
that the officer had anything close to reasonable
and probable grounds for arresting the [accused]
for possession of this knife. [paras. 46-47]

Since the arrest was unlawful, it breached s. 9 of the
Charter. The knife, seized as evidence of an offence
incidental to the unlawful arrest, was sufficiently
connected to the s. 9 breach such that s. 24(2) was
engaged. Justice White would have excluded all of
the evidence under s. 24(2) and entered acquittals
on the charges.
Complete case available at www.canlii.org

Note-able	
 Quote
“You can only go as high on the leadership ladder
as your character will allow you.” - John C.
Maxwell

The officer pulled the car over and approached the
driver, asking to see a driver’s license and the
vehicle’s documentation. The accused identified
himself as Stephen Casey and told the officer he was
licensed but did not have it with him. He was not
able to produce any photo identification. When the
officer ran the name provided on CPIC it came back
as an alias to Stephen Shipley. Shipley was on bail
for outstanding drug related offences. The computer
entry also produced a 4 x 4 photograph of Shipley.
To confirm identity, the officer asked the accused to
accompany him to his cruiser. When the accused
complied and stepped out of his car, the officer
noticed a number of plastic bags containing a white
substance on the driver’s door and a further plastic
bag with a white rock in it on the passenger seat. The
accused was arrested for possessing cocaine and he
was patted down. Police found $450 in various
pockets, $25 and a dime bag of cocaine in his
wallet, and a black cell phone. When the car was
searched, police recovered the plastic bags of
cocaine from the front of the vehicle. A baby seat in

PAGE 8

Volume 16 Issue 1 - January/February 2016
the rear had bags of cocaine partially hidden in the
cloth portion of the seat. Police also found another
cell phone, a digital scale with white residue on it,
marijuana seeds and latex gloves. The drugs weighed
35 grams. The accused was transported to the police
station where he was strip searched in a private area
but no drugs were found on his person or in his
clothes. He was charged with possessing cocaine
for the purpose of trafficking and possessing
proceeds of crime not exceeding $5,000.

car, did not extend beyond the scope of s. 216(1)
HTA:
The officer, under these circumstances, was well
justified in stopping the [accused] under the
H.T.A. to ensure he was properly licensed. There
was nothing improper for the other reason for his
stop which was to investigate why the [accused]
was stopped at an empty bank parking lot at
night, with interior lights on, in a high drug area,
and looking startled upon seeing the police.

Ontario Superior Court

I further conclude that the officer was justified in
requesting that the [accused] step to his cruiser
to determine his I.D. The [accused] did not have
a license with him, contrary to the H.T.A. He
was unable to produce any photo I.D. He was
driving a rented car. He had previously looked
startled upon seeing the police. He gave a name
which came up with an alias when searched on
the officer’s computer. The officer had a picture
on his computer screen and an individual a
number of feet away in his car at night with
lighting obviously not at its best. Under those
circumstances I think it entirely reasonable for
the officer to ask the [accused] to attend at his
car to be able to do a proper photo comparison
with the [accused] next to his photo on the
computer screen.

The officer admitted in cross examination
that a rental car is often used in drug
trafficking and that drug involvement by
the driver was one of a number of
possibilities going through his mind when he
decided to stop the vehicle and investigate further.
The accused argued that the officer did not have
grounds to stop him, order him out of the car and
then search the vehicle. In his view, the stop was
clearly a ruse based on a hunch that drugs were
involved. Since the vehicle stop was unlawful, so too
were the searches of his car and person, and the
strip search that followed. He submitted that any
evidence found should be excluded under s.24(2) of
the Charter.
The Crown, on the other hand, submitted that the
officer had reasonable grounds to stop the car under
s.216(1) of Ontario’s Highway Traffic Act (HTA), ask
the accused to step out to confirm his identity and
determine whether he was licensed to drive. The
cocaine was clearly visible when the accused
opened the car door and the officer had every right
to then arrest him and search the vehicle incidental
to the arrest. As well, the officer needed to do a pat
down search for safety reasons and strip search him
later before he was placed in the general prison
population.
The judge found the officer had a dual purpose in
deciding to stop the accused. First, he wanted to
make sure the accused was properly licensed and,
second, he wanted to know why he was stopped in
the bank parking lot. He ruled that the stop was not
a ruse and the inquiries made by the officer,
including the request that the accused step out of his

Once the [accused] opened the door to his
vehicle the drugs were clearly visible to the
officer, both on the driver’s door and the
passenger seat. The officer then had reasonable
grounds to arrest the [accused] and search the
vehicle. [2014 ONSC 4795, paras. 23-25]

As for the strip search, it was properly conducted
and was reasonable in the circumstances. It was not
simply being done as a matter of routine. The
accused had been arrested for drug trafficking and
the purpose of the search was to discover illegal
drugs secreted on his person. It was conducted in
private at the police station by officers of the same
gender with the accused removing his own clothes.
Further, as bail was to be opposed, the accused
would be placed in the general prisoner population.
The police did not want hidden drugs smuggled into
the jail. There were no Charter breaches and
therefore no reason for a s. 24(2) analysis. The
accused was convicted of both charges.

PAGE 9

Volume 16 Issue 1 - January/February 2016

POLICE	
 DID	
 NOT	
 CREATE	
 
EXIGENCIES:	
 WARRANTLESS	
 
ENTRY	
 LAWFUL

Ontario Court of Appeal
The accused argued that his ss.
8 and 9 Charter rights had been
breached. In his view, the trial
judge erred in finding that the
arresting officer had reasonable and probable
grounds to detain him and search inside his vehicle.
He submitted that the drugs found around the
driver’s seat should have been excluded under s. 24
(2). The Court of Appeal, in a short endorsement,
rejected this argument:
We agree with the trial judge that the officer, in
order to determine the [accused’s] identity, was
justified in requesting that [he] step out of his car
and come to the police cruiser. The [accused]
did not have a licence with him as required by
the HTA, and he was unable to produce any
photo identification. The officer had a picture of
the person whose name was the alias the
[accused] had given him showing on his
computer screen in the police car. As a result, it
was entirely reasonable for him to ask the
[accused] to come over to the police car to
compare the [accused] with the image on the
computer screen to properly identify him for
HTA purposes.
When the [accused] stepped out of his vehicle,
the dime bags and rock of cocaine around the
driver’s seat were in plain view. [paras. 4-5]

Relying on Brown v. Durham Regional Police Force
(1998), 131 C.C.C. (3d) 1 (Ont. C.A.), the Court of
Appeal found the officer’s purpose in learning what
the accused was doing in the bank parking lot at the
late hour was well within the ongoing police duty to
investigate criminal activity and did not taint the
lawfulness of the s. 216(1) HTA stop. There were no
ss. 8 or 9 Charter breaches. The evidence was
admissible and the accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional facts taken from R. v.
Shipley, 2014 ONSC 4795.

www.10-8.ca

R. v. Phoummasak, 2016 ONCA 46
An undercover officer purchased 4.5
grams of cocaine from a drug dealer.
Ten days later a second purchase was
arranged but this time the dealer said
he had to get the cocaine from his
supplier. He was observed enter apartment 428N at
1169 Queen Street. He then rejoined the officer in a
vehicle a few moments later and completed the
sale. The dealer left the vehicle and returned to unit
428N. From this, police believed that the dealer’s
supplier lived at, or was connected to, unit 428N.
The lead investigator believed he had grounds after
the second transaction to obtain a search warrant for
unit 428N but he did not apply for one. Instead, he
wanted “to confirm a 100% that this was the
[supplier’s] address”. Police planned for a third
transaction with the dealer and would arrest him
and anyone else there were reasonable grounds to
believe was involved in the transaction.
Police set up surveillance in the area of the
apartment building on Queen Street. The plan was
to apply for a warrant to search the apartment if the
dealer went to unit 428N in connection with the
third transaction. An officer began working on the
necessary paperwork for the warrant. As the third
transaction began, the undercover officer drove the
dealer to 1169 Queen Street. The dealer went inside
the building and returned to the vehicle about 10
minutes later. He and the undercover officer drove a
short distance away at which point the dealer
produced 15.3 grams of cocaine. The officer gave
the dealer $800 and took the drugs. The dealer left
the vehicle but, before he could be arrested as
planned, he returned to 1169 Queen Street. He was
then apprehended in front of the apartment building.
His cell phone began to ring repeatedly immediately
after he was arrested. The call display indicated that
the calls were all coming from someone named
“Vic”, believed to be the supplier who police
thought was in unit 428N. Worried that the supplier
would become suspicious when the dealer did not
answer his cell phone and would take steps to

PAGE 10

Volume 16 Issue 1 - January/February 2016
destroy any evidence relating to the drug
transactions in the apartment, the police decided to
enter the apartment immediately to “freeze” it until a
search warrant could be obtained.
The police entered the apartment building using a
fob seized from the dealer, went to the door of unit
428N and knocked. No one answered but the police
heard noises coming from inside. Using a key seized
from the dealer, the police entered the apartment
and saw the accused coming back into the
apartment from the balcony. A police officer outside
the building had seen the accused throw three
baggies containing drugs off the balcony. Police
secured unit 428N, arrested the accused, and
applied for and obtained a search warrant for the
apartment. When the warrant was executed, police
found various drugs and more than $5,000 in cash.

“Generally speaking, the police cannot
enter a residence to search for evidence
without prior judicial
authorizations. There are a few
exceptions to that rule. Section 11(7) of
the CDSA recognizes the common law
exigent circumstances exception to the
warrant requirement.”
Generally speaking, the police cannot enter a
residence to search for evidence without prior
judicial authorizations. There are a few
exceptions to that rule. Section 11(7) of the
CDSA recognizes the common law exigent
circumstances exception to the warrant
requirement. It provides:

Ontario Superior Court of Justice

A peace officer may exercise any of the
powers described in subsection (1), (5) or (6)
without a warrant if the conditions for
obtaining a warrant exist but by reason of
exigent circumstances it would be
impracticable to obtain one.

The accused argued that the search was
unlawful and therefore breached s. 8 of
the Charter. He contended that the
exigent circumstances exception to the
warrant requirement under s. 11(7) of the Controlled
Drugs and Substances Act (CDSA) did not apply
because the police created the exigent
circumstances by their own operational decisions
made in the course of the ongoing investigation. The
judge rejected this submission. He found the police
could not have obtained a search warrant after the
second transaction and acted lawfully in entering
and securing the accused’s premises. Convictions on
drug charges followed.

Section 11(7) of the CDSA, unlike other statutory
provisions providing for exigent circumstances
searches (e.g. Criminal Code s. 529.3), does not
define exigent circumstances. In my view, the
phrase has the same meaning in s. 11(7) of the
CDSA as it does in the Criminal Code provisions
and at common law. Exigent circumstances
under s. 11(7) exist if (1) the police have grounds
to obtain a search warrant under s. 11 of the
CDSA (the probable cause requirement) and (2)
the police believe, based on reasonable grounds,
that there is imminent danger that evidence
located in the premises will be destroyed or lost
if the police do not enter and secure the
p r e m i s e s w i t h o u t d e l ay ( t h e u r g e n c y
requirement). [references omitted, paras. 11-12]

Ontario Court of Appeal
The accused again argued that
the police created the exigent
circumstances upon which they
relied to justify the warrantless
entry into his apartment. The Court of Appeal,
however, disagreed.

Exigent Circumstances
Justice Doherty, speaking for the Court of Appeal,
described exigent circumstances and their
application to s. 11(7) of the CDSA this way:

In this case, the accused agreed that both conditions
for a warrantless search under s. 11(7) existed.
However, he argued that the police manufactured
the exigencies and therefore could not rely upon
them to justify the search. In his view, the police had
the necessary grounds to get a search warrant after
the second drug transaction. Instead, they chose to

PAGE 11

Volume 16 Issue 1 - January/February 2016
proceed with a third transaction knowing that their
plan would place them outside the apartment door.
They knew its occupant would then be suspicious
once the dealer had not returned to the apartment
and would take steps to destroy any evidence in the
apartment.

“[T]he police cannot orchestrate
exigent circumstances by creating the
requisite urgency through a preplanned
course of conduct.”
In this case, the officer in charge explained his
reasons for not applying for a warrant before the
third drug transaction. That explanation was not
unreasonable. [The dealer] had made two sales
to the undercover officer, one unconnected to
unit 428N and the other connected to unit
428N. The officer in charge reasonably believed
that it was prudent to seek further confirmation
of the connection of the apartment to the drug
transactions before seeking a warrant.
The
reasonableness of the officer’s approach is
evident from the trial judge’s opinion that the
police did not have reasonable grounds to
obtain a search warrant before the third
transaction. Although I disagree with her
assessment, this difference of judicial opinion
suggests that the officer’s decision to seek further
confirmation of the connection between unit
428N and the drug transactions before applying
for a warrant was a reasonable one. [paras.
15-17]

Although “the police cannot orchestrate exigent
circumstances by creating the requisite urgency
through a preplanned course of conduct,” Justice
Doherty concluded that was not what happened in
this case. Even though the police had grounds to
obtain a search warrant for the accused’s apartment
prior to the third drug purchase, they did not
anticipate that the investigative steps they took
would create the urgency to justify an entry into the
apartment without a warrant. “The existence of
reasonable grounds to obtain a warrant does not
preclude the existence of exigent circumstances,”
said Justice Doherty. “To the contrary, probable
cause is a prerequisite to the existence of exigent
circumstances.” He continued:
[E]vidence that the police had grounds to obtain
a search warrant, but did not obtain a warrant
and instead proceeded with other investigative
measures, can in some situations afford evidence
that the police set out to create exigent
circumstances to justify entry into a premise
without a warrant. If that inference is drawn, the
circumstances are not exigent and cannot justify
a warrantless search or entry.
The inference that the police set out to avoid the
warrant requirement does not flow automatically
from the fact that the police could have obtained
a search warrant for the premises before the
exigent circumstances arose. The specific
circumstances of each case must be examined.

In this case, neither the arrest in front of the
apartment building nor the unanswered telephone
calls to the dealer were anticipated by the police.
The police did not create “an artificial situation of
urgency.” The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

“The existence of reasonable grounds
to obtain a warrant does not preclude
the existence of exigent circumstances.
To the contrary, probable cause is a
prerequisite to the existence of exigent
circumstances.”
PAGE 12

Volume 15 Issue 4 - July/August 2015

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PAGE 32

Volume 15 Issue 4 - July/August 2015

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PAGE 32

Volume 16 Issue 1 - January/February 2016

NO	
 PRIVACY	
 INTEREST	
 IN	
 SDM:	
 
VEHICLE	
 LAWFULLY	
 SEIZED
R. v. Fedan, 2016 BCCA 26
The accused lost control of his pickup truck on a curve and struck a large
tree. Both of his passengers were
killed. The area was lit by streetlights,
the weather was overcast and the road
was flat, dry and in good repair. Police attended the
accident scene and seized his vehicle and stored it
at a towing compound. Two days later the police
obtained a warrant to search the vehicle for
evidence such as blood, DNA, personal effects and
documents to identify the driver. However, the
search warrant did not specify the seizure and search
of the sensing diagnostic module (SDM) and its data.
The SDM is an electronic device capturing the
speed, throttle, and braking of the vehicle in the five
seconds before an airbag event (eg. collision) or
near-deployment event (eg. sudden deceleration).
A police officer attended the towing compound and
removed the SDM which was embedded underneath
the floor of the driver’s seat. He had not been
involved in the preparation of, obtaining or
execution of the search warrant. Data from the SDM
was imaged with specialized equipment and
revealed that in the five seconds before the accident
the accused’s truck was travelling 106 km/h (over
twice the speed limit). It had accelerated in the four
seconds before the brakes were engaged, and the
brakes were not applied until one second before the
tree was hit. This data, along with other evidence,
resulted in several charges being laid including two
counts of dangerous driving causing death.

British Columbia Supreme Court
The judge found the removal of the SDM
and the retrieval of its data did not
breach s. 8 of the Charter. There was no
evidence that the accused was aware the
SDM was embedded in his vehicle. Therefore, he did
not have a subjective expectation of privacy in the
data. Without a subjective expectation of privacy, s.
8 was not triggered. There was then no reason to
consider whether there was an objective reasonable

expectation of privacy. Further, even if there was a s.
8 breach, the judge would have admitted the
evidence anyway under s. 24(2). The evidence
proved the accused drove dangerously and he was
convicted on two counts of dangerous driving
causing death.

BC Court of Appeal
The accused argued the trial
judge erred in not presuming a
s u b j e c t ive e x p e c t a t i o n o f
privacy in the SDM that was
objectively reasonable. In his view, he had a
presumed expectation of privacy in his vehicle
which extended to the SDM, a component of it akin
to an “onboard computer” or “black box”. He
submitted that had not abandoned this privacy
interest in the accident, the data contained within it
(precise speed, acceleration, and braking) was not
visible to the public eye and its seizure was intrusive
since it was not easy to remove.
The Crown, on the other hand, argued the trial judge
made no error in finding the accused did not have a
subjective expectation of privacy in his vehicle. It
was destroyed in the accident and was lawfully
seized under s. 489(2) of the Criminal Code. As well,
the data captured by the SDM only related to the use
of the vehicle (speed, throttle and braking), was
limited to a five-second window before the crash,
and did not record any intimate details of the
accused’s biographical core, lifestyle or personal
choices. Furthermore, even if there was a subjective
expectation of privacy in the SDM and its data, the

PAGE 15

Volume 16 Issue 1 - January/February 2016
Crown contended the expectation was not
objectively reasonable. Any expectation of privacy in
the vehicle had all but vanished when the vehicle
was destroyed in the accident and was lawfully
seized by the police in a criminal investigation. In
addition, the SDM data would have been visible to
any witness who had been present to observe the
event. The data was highly relevant and reliable, did
not expose any intimate details of the accused’s
biographical core, lifestyle or personal choices, and
its removal was not intrusive because the vehicle
had already been destroyed.

Reasonable Expectation of Privacy

Although the accused could have been presumed to
have a subjective expectation of privacy in his
vehicle, which extended to the SDM, this privacy
interest was not objectively reasonable. “I am unable
to see how [the accused] could have any residual
territorial privacy interest in the SDM after the
vehicle was lawfully seized or any informational
privacy interest in the SDM data as, standing alone,
the data provided no personal identifiers that could
link [the accused] to the captured data,” said Justice
Smith. “He therefore had no reasonable expectation
of privacy in the SDM or its data after the vehicle
was lawfully seized.” She continued:
[I]n this case, the data recovered by the SDM
provided no personal information about [the
accused]. The captured information pertained
only to the use of the vehicle in a five-second
window of time before a deployment or neardeployment event. It did not capture any
information that revealed intimate details of [the
accused’s] biographical core, and in particular
about who was driving the car. Further evidence
had to be obtained to connect the driving of his
vehicle to [the accused] himself. In my view,
[the accused’s] informational privacy interests
were not engaged by the downloading of the
SDM data.

Section 8 of the Charter is only engaged if an
accused can establish a reasonable expectation of
privacy in the subject matter of the search and/or
seizure. This requires a subjective expectation of
privacy that is objectively reasonable. A subjective
expectation of privacy requires a finding that an
individual had or was presumed to have had an
expectation of privacy in the content of the subject
matter of the search. As well, such privacy must be
objectively reasonable on the totality of the
circumstances considering a number of factors.
Section 8 protects privacy interests that are personal
(bodily integrity), territorial (such as a home or
vehicle) and/or informational (personal information
that may reveal intimate details about a person).
In this case, the Court of Appeal found the vehicle
had been lawfully seized without a warrant under s.
489(2) of the Criminal Code and stored in the towing
compound. “In some circumstances, an item can be
seized without a warrant,” said Justice Smith.
“Section 489(2) authorizes the seizure of any thing
without a warrant where an officer in the execution
of his or her duties reasonably believes that a thing:
(i) has been obtained by the commission of an
offence; (ii) has been used in the commission of an
offence; or (iii) will afford evidence in respect of an
offence. There must be an evidentiary basis to justify
the use of the extended power to seize under s. 489
(2)(a), (b) or (c).” This lawful seizure of the vehicle
included the right to examine it and extinguished
any privacy interest the accused may have had in the
SDM and its data.

Nor do I accept [the accused’s] analogy between
the SDM and a personal computer or a “black
box” and therefore do not find the reasoning in
Vu to be applicable. As noted, the data recorded
by the device did not extend to personal
identifiers of the driver of the vehicle. Most
significantly it contained no intimate details of
the driver’s biographical core, lifestyle or
personal choices, or information that could be
said to directly compromise his “dignity,
integrity and autonomy”. [reference omitted,
paras. 81-82]

And further:

PAGE 16

Again, after undertaking a normative assessment
of the reasonableness of [the accused’s] privacy
claim I find it difficult to see how an operator of
a vehicle might be found to have reasonably
intended the last five seconds of information
pertaining to his or her driving before a collision
to be private. Driving on a public road is a
highly regulated activity that is open to public

Volume 16 Issue 1 - January/February 2016

view, as evidenced by Mr. Schneider witnessing
[the accused’s] erratic driving 20 minutes before
the accident. Had another member of the public
witnessed the collision, that person would have
seen the information captured by the SDM,
albeit with less accuracy.
...
In sum, in the context of this case and the
totality of the circumstances, I find [the accused]
did not have a reasonable expectation of privacy
in the SDM and its data. His territorial privacy
interest in the device was extinguished by the
lawful seizure of the vehicle and he had no
informational privacy interest in the SDM data as
it contained no personal information linking him
to the operation of the vehicle at the material
time. [paras. 84-86]

There was no error in the trial judge’s finding that the
accused’s s. 8 Charter right was not violated. And,
even if there was a Charter breach, the trial judge
did not err in admitting the evidence under s. 24(2).
The SDM and its data was properly admitted as
evidence and the accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

APPEAL	
 COURT	
 SPLIT	
 ON	
 
WHETHER	
 DETENTION	
 
OCCURRED
R. v. Folker, 2016 NLCA 1
On July 19, 2010 the accused reported
to police that his common-law wife
and mother of their infant son was
missing. He said that she had left their
home the previous evening and had
not returned. On July 23 he was contacted by police
for an interview, agreed to the request and drove
himself to police headquarters the following
morning. When he arrived, he was escorted to an
interview room, asked to turn off his cell phone and
told the interview would be video recorded. The
interview lasted one hour and thirty-five minutes. It
focussed on the events of July 18, personal
circumstances, and information about the missing
person’s habits, friends and use of their computer.
The accused said that he had telephoned his wife’s
friends and family the day following her

disappearance to find her but had not tried to call
his wife on her cell phone since she had been
missing. The accused voluntarily agreed to consent
to a search of the home computer. A consent form
was reviewed with him. It included advice that he
had the rights to contact a lawyer before signing it
and to refuse consent. It also contained an
explanation that anything obtained in the search
could be retained as evidence and that the search
could result in charges being laid against him. The
accused did not wish to contact a lawyer and said
he understood the potential repercussions of the
search. During the interview, the police advised the
accused that they would want to verify the truth of
what he told them. In this regard, the prospects of
cell and home phone records searches, other
searches and a future polygraph test were discussed.
He stated he would agree to the searches and the
polygraph. At the end of the interview, he said he
wanted to cooperate with the police and that he
“wanted her found.” At this time, surveillance of the
accused was arranged.
On July 27 the accused again went to police
headquarters where he, and other members of the
missing woman’s family, met with police for an
update on the progress of the investigation. After the
meeting, police met with the accused alone for 10
minutes to again discuss whether he would consent
to searches of his cell phone records, their house
phone and their vehicle. He agreed and was advised
by police that they would prepare the consent forms
for those searches and meet him again the next day
so he could sign them. The possibility of a polygraph
examination was again discussed. The police
wanted a polygraph done to know if the accused
was responsible for his wife’s disappearance. He
again stated that he would submit to a polygraph test
and also allowed police to view his body to see if
there were any marks on it. This meeting was audiotaped.
On July 28 the police met with the accused in an
unmarked police car outside his place of
employment for 12 minutes. They reviewed consent
forms for searches of his cell phone, home phone
and computer. Each consent form was explained and
indicated that the accused had the right to consult
with legal counsel about whether to consent, that he

PAGE 17

Volume 16 Issue 1 - January/February 2016
was giving his consent freely and voluntarily, and
that he knew and understood that any evidence or
information resulting from the searches could be
used against him in court proceedings. All consent
forms were agreed to by the accused. As a result of
the statements the accused made during these
interviews and other evidence, he was arrested and
charged with murder.

Newfoundland Supreme Court
The judge ruled that the uncautioned and
un-Chartered statements made by the
accused to police on July 24, 27 and 28
were admissible because he had not
been detained when he gave them. The police were
in the early stages of a missing person investigation
reported by the accused. There was no evidence of a
crime being committed and the police did not have
reasonable grounds to arrest anyone, including the
accused. He was asked to come to the police station
for follow-up, came in his own vehicle and left after
the interview on his own. As for the surveillance, it
was set up to determine whether what the accused
said was accurate. As well, the judge ruled that the
statements had been given voluntarily. No threats,
promises or inducements were made nor were there
any dirty police tricks. The accused was convicted of
second degree murder.

Detention
Justice Hoegg reviewed the Supreme Court of
Canada jurisprudence on what constitutes a
detention under the Charter. He made the following
observations:
•
•

•

•

•

Newfoundland Court of Appeal
The accused argued that the trial
judge erred in admitting the
three statements he made,
among other things, because he
was detained and ought to have been given his
Charter rights before providing those statements. He
claimed he felt compelled to cooperate with the
police by answering questions during the interviews.
He asserted he was viewed as a suspect because the
statements were videotaped and/or audio recorded
and he was placed under surveillance. Thus, in his
view, the statements should have been excluded
under s. 24(2). As well, he submitted that the
statements were obtained through police trickery
and were therefore involuntary and inadmissible
under the common law.

A detention can be “physical or psychological”
A “psychological detention as arising in two
ways: 1) ‘a subject is legally required to comply
with a police demand’ and 2) ‘a reasonable
person in the subject’s position feels obligated
to comply with a police restrictive or coercive
demand even though there is no legal
requirement to do so’.”
“Not all encounters with police should be
interpreted as psychological detention, and
specifically stated that information gathering in
a non-adversarial context lacks the essential
character of a section 9 detention.”
“An individual’s Charter rights are not engaged
by cooperating with police questioning when
police do not have specific grounds to connect
that individual to the commission of a crime,
even when it turns out that the individual being
questioned is implicated in the crime”
“An investigative encounter has the potential to
turn into a detention which would engage the
requirement to give a detainee his or her
Charter rights. Suspicion of a particular
individual could trigger the requirement for
Charter rights, but ‘focussed suspicion, in and
of itself, does not turn [an] encounter into a
detention. What matters is how the police,
based on that suspicion, interacted with the
subject’. In this regard, if the words and actions
of the police are such that a reasonable person
would conclude that he or she is not free to
leave or decline to answer questions then the
subject can be said to be detained.”

Recorded Statements?
The fact the accused’s statements were recorded
during the interviews did not necessarily render him
a suspect and his interaction with the police a
detention:

PAGE 18

Volume 16 Issue 1 - January/February 2016

“Video and audio recording of police interviews has become increasingly common in
recent years, as the Judge noted. Such electronic records provide an accurate account
of what actually transpires during a police interview, thereby providing reliable
information for police use in their investigation as well as reliable evidence for possible
later use. Electronic recordings of police interviews also protect other important
interests. They serve as a strong deterrent to the use of improper police tactics and also
help to protect police from spurious claims.”
Video and audio recording of police interviews
has become increasingly common in recent
years, as the Judge noted. Such electronic
records provide an accurate account of what
actually transpires during a police interview,
thereby providing reliable information for police
use in their investigation as well as reliable
evidence for possible later use. Electronic
recordings of police interviews also protect other
important interests. They serve as a strong
deterrent to the use of improper police tactics
and also help to protect police from spurious
claims.

the circumstances of the interviews, the nature of the
police conduct and [the accused’s] personal
circumstances must be considered.” In concluding
that the accused was not detained during any of the
interviews, the majority stated:
[The accused’s] July statements are recordings of
early police investigatory work in which [the
accused’s] words can be fairly characterized to
have been made in furtherance of his position
that he did not know what happened to Ms.
Shirran and that he wanted to help the police to
find her. The police questioning of [the accused],
in these first of many interactions with him, was
of a general nature, naturally touching on his
relationship with Ms. Shirran, possible reasons
for her disappearance, and the efforts he made
to contact her. In my view, the July 2010
interview was a far cry from “focussed
interrogation amounting to detention”. There is
nothing in the evidence of the way the police
interacted with him during the three July
interviews that would cause a reasonable person
in his shoes to believe that he or she had no
choice but to answer the police questions. All in
all, the circumstances giving rise to [the
accused’s] interviews with police in July, the
nature of the police conduct and [the accused’s]
personal circumstances do not support his
contention that he was detained so as to engage
his Charter rights. I conclude that the Judge did
not err in determining that [the accused] was not
detained when he gave those statements. [para.
29]

In this case, [the accused] was advised that the
interview on July 24 was being videotaped and
that the meetings of July 27 and 28 were being
recorded. The statements he made in each of the
July interviews were therefore made by him in
the full knowledge that they were being
recorded. Moreover, [the accused] was advised
several times throughout the interviews that the
police wanted to make sure that what he was
telling them was true. In these circumstances, I
cannot see how the video and/or audio
recording of his statements supports his
detention argument. [reference omitted, paras.
21-22]

Compelled to Cooperate?
The majority also rejected the accused’s contention
that he was detained because he felt compelled to
cooperate with the police. “While [the accused’s]
subjective feelings in this regard are relevant, they
do not determine that he was detained,” said Justice
Hoegg. “The test set out in Grant is an objective one,
requiring that a reasonable person in the shoes of
[the accused] would conclude that because of the
police conduct he or she had no choice but to
comply with the police questioning. Accordingly,

Voluntariness?
In determining whether a statement is voluntary, a
court must examine the confessions rule and
consider four factors:

PAGE 19

Volume 16 Issue 1 - January/February 2016
1. threats and promises,
2. oppression,
3. operating mind and
4. police trickery. This involves a distinct inquiry
known as the “shock the community test.”
In this case, the judge found there were no threats or
promises, physical contact or restraint by the police,
harsh language or raised voices on anyone’s part, or
police accusations or other police behaviour which
could be interpreted as oppressive. The accused was
not vulnerable nor was there any evidence that he
did not have an operating mind. As for police
trickery, the police were honest and frank with the
accused and told him several times they wanted to
check out his story. Although the police did not tell
him he would be or was under surveillance, this did
not cause him to answer police questions. The
accused’s statements were voluntary and properly
admitted.

In this case, Justice White found the facts of the case
led to the conclusion that the accused had been the
subject of an investigative detention in the
circumstances:
•
•

•

•

•

A Second Opinion
Justice White, in dissent, disagreed with
the majority that the accused had not
been detained. In his view, the trial
judge failed to properly apply the test for
what constitutes a detention for the purposes of the
Charter. Rather than applying a claimant-centered
modified-objective test, he found the trial judge
almost entirely focused on the perceptions and
knowledge of the police. Instead of asking whether
the police had reasonable and probable grounds to
believe the accused had committed an offence, the
trial judge should have determined whether the
police had “zeroed in on the individual as someone
whose movements must be controlled” and whether
the accused could have had a reasonable perception
that he was detained. “The key is to determine ‘the
line between general questioning and focussed
interrogation amounting to detention’,” said Justice
White. “While focussed suspicion is not on its own
enough to establish detention, focussed suspicion
combined with jeopardy for the accused, combined
with something more than a general inquiry from
police, may be sufficient to give rise to the claimant’s
reasonable perception that he or she is detained due
to an implicit direction not to leave.”

•

•

The police were investigating what was a
suspicious disappearance and a possible crime.
The police had a suspicion that the accused
might be involved and had reasonable grounds
for this suspicion.
The interviews were not general or preliminary;
the police had clearly formed a theory and
began to pursue it with the accused as a
suspect.
The police were engaging in a focussed
interrogation, with specific questions such that
the police were clearly trying to get an
incriminating statement or an admission of
greater involvement from the accused.
The police had decided to transfer the case to
the major crimes unit and place the accused
under surveillance. The several interviews
during which the police obtained consents for
multiple searches of the accused’s property also
indicated that the police continued to have a
keen interest in his actions.
The interviews were recorded and the accused
was asked to turn off his cellphone. The
interviews were not a brief delay on the street
and he was not directly told he could leave. He
was told to ask police before leaving the room,
for example to go to the bathroom, implying a
direction to stay put.
The accused testified that he felt compelled to
go to the police interview.

Although the accused was detained, it was not
unlawful. The police had reasonable and probable
grounds to suspect that he was involved in an
offence. However, the police failed to advise the
accused of his s. 10 Charter rights upon detention.
They should have told him of the reasons for his
detention and about his right to counsel. Justice
White would nevertheless admit the evidence under
s. 24(2).
The accused’s appeal was dismissed.
Complete case available at www.canlii.org

PAGE 20

Volume 16 Issue 1 - January/February 2016

NO	
 POSITIVE	
 DUTY	
 ON	
 POLICE	
 
TO	
 ENSURE	
 DETAINEE	
 SPOKE	
 TO	
 
COUNSEL
R. v Beauregard, 2016 ABCA 37
The accused was arrested on a warrant
for robbery. Four masked and armed
men had robbed a truck stop about 3
½ months earlier. The accused was
read a standard Charter warning.
When asked if he wanted a lawyer he replied
“Yeah”. He was transported to the police station
where he was placed in a telephone room with a list
of about 20 local lawyers, the number for Legal Aid,
and a phonebook. After about 5 minutes he was off
the phone. The arresting officer entered the room
and asked if he was done. The accused said “yes”.
The following day, a police officer took the accused
from his cell to an interview room. He was given a
caution about not saying anything but nevertheless
confirmed his involvement in the armed robbery
during the interview. This helped prove his identity
as one of the robbers.

feel pressure to wrap it up and may not have the
fortitude to ask for more time or may not realize they
are entitled to a reasonable opportunity to reach
counsel, and more time if their initial attempts are
unsuccessful.” As a remedy for this Charter breach,
the judge excluded the accused’s statement under s.
24(2). There was insufficient evidence to prove
identity and the accused was acquitted.

Alberta Court of Appeal
Th e C r ow n a p p e a l e d t h e
accused’s acquittal arguing that
the trial judge erred in finding a
s. 10(b) Charter violation. The
Court of Appeal described the duties imposed on the
police under s. 10(b) as follows:
Section 10(b) of the Charter confirms the right of
any arrested person to retain and instruct
counsel without delay, and to be informed of
that right. As it expressly states, the section
confers “informational rights” on the detained
person; the police have a corresponding
obligation to inform the detained person of the
right to contact counsel and the availability of
duty counsel. …

Alberta Court of Queen’s Bench
The judge found that, during his time in
the telephone room, the accused had not
talked to any lawyer but had called his
mother. The arresting officer never
explicitly asked the accused if he had talked to a
lawyer, nor had the accused advised he had not
spoken to one. Although the police complied with
the informational duties imposed under s. 10(b) of
the Charter, the judge concluded that the police had
breached the implementational duty. “If a police
officer faces a detainee who diligently but
unsuccessfully seeks legal advice, he must obtain a
clear, unequivocal waiver and provide what is
known as a Prosper warning, or afford the detainee
more time to contact a lawyer,” said the judge. “In
my view the implementational duty is only satisfied
if a reasonable period of time to contact a lawyer
has been provided and before moving to elicit
evidence the officer confirms the detainee has been
able to speak to a lawyer. A detainee who has been
unable to reach a lawyer after five minutes, and who
is asked by a police officer, ‘Are you done’, may well

There are also “implementational duties” on the
police. “These duties require the police to
facilitate a reasonable opportunity for the
detainee to contact counsel, and to refrain from
questioning the detainee until that reasonable
opportunity is provided. However, these
obligations are contingent upon a detainee’s
reasonable diligence in attempting to contact
counsel. It is significant that these
implementational duties only extend to
providing a “reasonable opportunity” to consult
counsel. There is no obligation on the police to
guarantee or ensure that the detained person did
in fact contact counsel. This is implicit in the
finding that there is no constitutional obligation
on the government to provide free duty counsel.
[references omitted, paras. 13-14]

In this case, the Court of Appeal found the police
sufficiently discharged their implementational
duties. They placed the accused in a telephone room
with the usual telephone numbers. The onus then
shifted to the accused to make it clear that he had

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Volume 16 Issue 1 - January/February 2016

“[Section 10(b) of the Charter] confers ‘informational rights’ on the detained person; the
police have a corresponding obligation to inform the detained person of the right to
contact counsel and the availability of duty counsel. … There are also “implementational
duties” on the police. ‘These duties require the police to facilitate a reasonable
opportunity for the detainee to contact counsel, and to refrain from questioning the
detainee until that reasonable opportunity is provided. However, these obligations are
contingent upon a detainee’s reasonable diligence in attempting to contact counsel’.”
not succeeded in contacting counsel and wanted to
have a further opportunity. Here, however, there was
nothing said by the accused that he had not been
able to contact counsel. There was no positive
obligation on the police to ask the accused if he had
in fact contacted counsel:
When the [accused] indicated he wished to talk
to a lawyer, he was taken to the detachment and
placed in a telephone room. The only reasonable
inference is that the purpose of him being put in
that room was to contact counsel. When [the
arresting officer] asked him if he was “done”, the
only thing that question could have referred to
was the “contacting of counsel”. When the
[accused] replied “Yup”, that answer could not
reasonably be interpreted as being “No, I never
contacted counsel”. The police are entitled to act
on what the detained person tells them, analysed
objectively. [reference omitted, para. 16]

The Crown’s appeal was allowed, the acquittals
were set aside and a new trial was ordered.
Complete case available at www.canlii.org

REASONABLE	
 SUSPICION	
 
SATISFIED:	
 NO	
 ENTRAPMENT	
 IN	
 
CRAIGʼS	
 LIST	
 LURING
R. v. Argent, 2016 ONCA 129

Nor was this a situation where the accused waived
his rights after asserting them such that a subsequent
Prosper warning was required. “The [accused]
specifically said that he did want to contact counsel,
he was given that opportunity, and when asked if he
was finished he replied affirmatively,” said the Court
of Appeal. “There was no objective basis on which
the police could be expected to take his actions and
responses as a waiver of the right to contact counsel,
and Prosper was not triggered.” Since there was no
obligation on the police to positively ask if a
detained person has been successful in contacting
counsel, the accused had failed to discharge his

“The police are entitled to act on what
the detained person tells them,
analysed objectively.”

burden in proving a s. 10(b) breach. His statement
obtained the next day was admissible as evidence.
Furthermore, even if there was an implementational
breach of s. 10(b), the statement was nonetheless
admissible under s. 24(2). Any breach was minor
and done in good faith, the impact on the accused
was minimal, and there was a strong public interest
in prosecuting this violent crime.

Two advertisements in the “casual
encounters” section of Craigslist were
posted by the accused seeking
someone interested in smoking
marijuana “and more”. The ads
included photos of the accused’s genitals and he was
also shown holding a marijuana bud. The ad
specified that he was looking for a woman between
the ages of 18 and 30 with whom he proposed to
smoke marihuana and have sex. A male police
detective in a Child Pornography Unit pretended to
be a 14-year-old-girl named “Carlee” and
communicated electronically with the accused. The
detective’s training suggested that people who seek
children will mention the age of 18 because 18 is
the minimum age which Craigslist will publish in the
personal erotic ads.

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Volume 16 Issue 1 - January/February 2016
The judge concluded that the police did provide the
accused with the opportunity to commit the offence
but the officer had reasonable grounds to suspect
that he was already engaged in criminal activity
when the opportunity was provided. As well, the
judge ruled that the police acted pursuant to a bona
fide inquiry and did not induce the crime. The
accused’s entrapment application was dismissed.
The detective’s first message in response to the
accused’s ad was:
Hey..cool pix! im not sure which is bigger…
the bud in your hand or your bud! lol!…
smoked for first time at my gr8 grad a few
weeks ago..yeah! lemme know when you r
smokin again some time…luv to try again
“Carlee” then exchanged emails and messages with
the accused which indicated she was a 14-year-old
virgin in grade 8 and inexperienced with drugs and
sex. The accused pursued the correspondence with
talk of oral sex and condoms for vaginal sex.

Ontario Court of Appeal
The accused argued that the
officer did not have reasonable
grounds from the outset to
suspect that there was criminal
activity going on. In his view, his ad specified a
woman of at least 18 years of age and this, on its
own, did not provide a sufficient basis for suspicion.
He also submitted that the officer sexualized the
communication by referring to the “bud” in the first
email and it was this response that manufactured the
criminal activity and induced the crime.
The Court of Appeal rejected these submissions:
The police had reasonable grounds to suspect
criminal activity when they viewed the ad as
posted and as the conversation with the
[accused] unfolded.

Ontario Superior Court of Justice
The accused was convicted at trial of
luring a child under 16-years-old to
engage in sexual activity but argued that
the charge ought to have been stayed
because he was entrapped. He submitted that the
police provided an opportunity for him to commit a
crime under the guise of “Carlee” without either
having a reasonable suspicion he was already
engaged in criminal activity or while making a bona
fide inquiry. The Crown, on the other hand,
contended that the police did not provide him with
an opportunity to commit an offence and, even if
they did, they had a reasonable suspicion to do so
and/or were acting pursuant to a bona fide enquiry.

“The police had reasonable grounds to
suspect criminal activity when they
viewed the ad as posted and as the
conversation with the [accused]
unfolded.”

The ad included a photo of the [accused’s] penis
and requested a smoking partner “and more”.
The police’s consideration of the use of the age
18 as a flag for potential child abusers was
reasonable. This was the lowest age that could
be posted.
We do not agree that the officer manufactured
the criminal activity by sexualizing the first
communication. The photos had already done
that. The communications from the officer made
it clear from the outset that Carlee was 14, had
just graduated from grade 8, was inexperienced
sexually, and was under the watch of her
mother. The questions posed by the officer were
open-ended. It was the [accused] who pursued
the discussion of sexual activity. These facts
support the officer’s suspicion that criminal
activity was underway. [paras. 12-14]

The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

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Volume 16 Issue 1 - January/February 2016

CAUSE	
 FOR	
 ARREST	
 TO	
 BE	
 
ARGUED	
 AT	
 TRIAL,	
 NOT	
 FIRST	
 
TIME	
 ON	
 APPEAL

that could reasonably be construed as involving
either of the men in drug trafficking.
Objectively, this information did not support the
officer’s belief that [the accused] or his
companion probably were intending to sell
crack cocaine. For this reason I find that the
officer did not have reasonable grounds to arrest
[the accused] and that the arrest contravened
[the accused’s] right to be free from arbitrary
detention and imprisonment. [R. v. Myette, 2015
SKPC 100, paras. 19-20]

R. v. Myette, 2016 SKCA 11
An officer received information from a
confidential source that the accused
and a man named Sheldon Durocher
were in a taxi cab in Meadow Lake
and they were in possession of crack
cocaine. The source also said where the taxi was
located. Seven minutes later the officer located the
taxi near a bar in Meadow Lake. The officer
confirmed that the accused and Sheldon Durocher
were passengers in it. The officer followed the taxi
for a short time, saw it travel to a grocery store and
stop, and then pulled it over after it drove away.
The accused was in the front passenger seat. He was
removed from the taxi and told he was under arrest
for possessing crack cocaine for the purpose of
trafficking. He was searched and seven individually
packaged pieces of crack cocaine were found in his
jacket pocket. He also had some cash in his pants
pocket and a cell phone. Another officer dealt with
the other passenger.

Saskatchewan Provincial Court

Saskatchewan Court of Appeal
The Crown appealed the trial
judge’s rulings arguing that he
failed to consider that the
accused was arrestable for
simple possession and this should have been
considered in the s. 24(2) analysis. As well, the
Crown suggested the trial judge erred in excluding
the evidence.

Simple Possession Arrest

The accused alleged that his arrest
amounted to an arbitrary detention under
s. 9 of the Charter and the search of his
person incidental to that arrest was a s. 8
breach. The judge found the accused had been
unlawfully arrested because the officer did not have
reasonable grounds to arrest him for trafficking. The
informer’s tip was insufficient to objectively support
a belief that the accused and his companion were
intending to sell crack cocaine. The judge stated:
Instead of continuing to watch the taxi, [the
arresting officer] almost immediately arrested
[the accused] for possession of cocaine for the
purpose of trafficking. Consequently, he arrested
[the accused] only on what the confidential
informant told him. That very limited
information did not implicate [the accused] or
his companion in drug trafficking. The
constable’s surveillance did not reveal anything

The subsequent search as an incident to an unlawful
arrest therefore breached s. 8 of the Charter. The
evidence was excluded under s. 24(2) and the
accused was acquitted of possession and possession
for the purpose of trafficking.

At trial, the evidence proceeded on the basis that the
accused had been arrested for possessing cocaine
for the purpose of trafficking rather than simple
possession. The Crown never suggested that the
accused was arrestable for simple possession nor
was the trial judge asked to consider whether the
circumstances would have permitted such an arrest.
Nor did the arresting officer provide any reason as to
why the arrest was made for the more serious
offence. Since this argument was not made at trial it
was improper for the Court of Appeal Court to order
a new trial on this basis.
As for the trial judge’s s. 24(2) analysis, it was
upheld. The Crown’s appeal was dismissed.
Complete case available at www.canlii.org

Editor’s note: Additional facts taken from R. v.
Myette, 2015 SKPC 100.

PAGE 24

Volume 16 Issue 1 - January/February 2016

EXCEEDING	
 24-HOUR	
 DELAY	
 IN	
 
PRESENTING	
 BEFORE	
 JUSTICE	
 
NOT	
 NECESSARILY	
 ARBITRARY	
 
R. v. Vassell, 2015 ABCA 409
The accused was arrested along with
other individuals after a lengthy drug
investigation. Cocaine had been found
on top of his driver’s licence in a
drawer of a filing cabinet in a bedroom
of a house after a search warrant was executed. He
was arrested for possessing cocaine at 17:41 hrs and
advised of his right to counsel. He was again advised
of his right to counsel at 21:44 hrs but was not able
to speak to a lawyer until 02:45 hrs the following
day, about nine hours after his arrest. At 20:56 hrs he
appeared for a bail hearing, more than 24 hours
after his arrest. He was charged with possessing
cocaine for the purpose of trafficking and possessing
proceeds of crime over $5000. Then at 22:07 he was
interviewed by police. This interview was audio/
video recorded. In the interview, the accused
acknowledged that the residence where the cocaine
was found was his home and that the drawer in
which the cocaine was found was in his room, but
he denied knowledge of the cocaine.

Alberta Court of Queen’s Bench
The accused contended that his bail
appearance more than 24 hours after his
arrest breached s. 503 of the Criminal
Code and therefore his detention
became arbitrary under s. 9 of the Charter. He
submitted that this arbitrary detention was
connected to the interview such that it should have
been excluded under s. 24(2). In addition, he
suggested that he should have been re-advised of his
right to counsel when he was informed at his bail
hearing that he was being charged with possessing
proceeds of crime. This, in his opinion, amounted to
a “change in jeopardy” requiring an additional s. 10
(b) advisement.

accused did not appear personally within the 24hour period, in the judge’s view, the police brought
him before the justice of the peace both within a
reasonable time and as soon as possible under the
circumstances. There was evidence that the justice of
the peace had 14 other people ahead of the accused
in this matter. Therefore, a justice was not
immediately available and s. 503(1)(b) applied. As
for the s. 10 (b) re-advisement argument, the judge
held there was nothing in the new charge of
possessing proceeds of crime that amounted to a
change in jeopardy requiring a second interview
with a lawyer. The accused was convicted of
possessing cocaine for the purpose of trafficking.

Alberta Court of Appeal
The accused appealed his
conviction arguing, among
other things, that the audio/
video statement he made to
police should not have been admitted as evidence.
He suggested that that he was arbitrarily detained
under s. 9 of the Charter because he did not appear
before a justice within 24 hours of his arrest. As
well, he asserted that his s. 10(b) right to counsel
was infringed because police did not re-advise him
of his right to counsel when his jeopardy changed
with the addition of the proceeds of crime charge.

Arbitrary Detention
A majority of the Court of Appeal found the trial
judge did not err in concluding that the accused was
not arbitrary detained. “The police could not be said
to have been acting in a manner which ‘bears no
relation to, or is inconsistent with’, the terms of s.
503 of the Criminal Code,” said the majority. It
continued:

The judge found that the police did not breach s.
503 of the Criminal Code. They started the process of
an appearance before a justice by faxing the bail
package within the 24-hour period. Even though the

PAGE 25

[T]he degree of departure from s 503 could not
be said to reach the level of arbitrariness. This
case does not require an elaborate discussion of
what it means when the framers of s 9 used
“arbitrarily detained or imprisoned” and “la
détention ou l’emprisonnement arbitraires” as
compared to the words “illegally” and “illegales”
which, of course, Parliament understood. Suffice
it to say that the meaning of “arbitrary” as a

Volume 16 Issue 1 - January/February 2016
feature of a principle of fundamental justice
should be consistent in its Charter applications.
Finally, there is no nexus between that defect, if
any, and what the [accused] said to the police.
Even if strict cause and effect is not required to
be proven, there is no air of reality to the
suggestion that somehow what the [accused]
said to the interviewing officer had anything to
do with the slight delay in his bail appearance.
For a Charter submission, there must be
evidence establishing that the breach was linked
to the evidence for which the exclusion is
sought. [para. 30]

BY THE BOOK:
Taking	
 Before	
 Justice: Criminal Code
s. 503(1) A peace officer who arrests a person
with or without a warrant ... shall cause the
person to be detained in custody and, in
accordance with the following provisions, to be
taken before a justice to be dealt with
according to law:

Right to Counsel
The majority also rejected the accused’s argument
that he should have been re-advised of his right to
counsel. “Nor are we persuaded that the [accused’s]
s 10(b) rights were re-engaged when he was advised
that he also faced a charge of being in possession of
the proceeds of crime,” said the majority. “This is not
the type of change of jeopardy that warrants a
further right to speak to counsel.”

(a) where a justice is available within a period of twentyfour hours after the person has been arrested by or delivered
to the peace officer, the person shall be taken before a
justice without unreasonable delay and in any event within
that period, and
(b) where a justice is not available within a period of
twenty-four hours after the person has been arrested by or
delivered to the peace officer, the person shall be taken
before a justice as soon as possible ...

The majority dismissed the accused’s appeal.

Another Perspective
Justice O’Ferrall, unlike the majority,
found the police did breach s. 9 of the
Charter by not taking the accused for a
personal appearance before a justice
until 27.5 hours after his arrest. “The Code requires
that the attendance before a justice must be in
person, although this can also occur by video link,”
he said. But here, the police failed to do that.
Further, since a justice was available by video link
24-hours a day, it was possible for the police to bring
the accused before a justice within the 24-hour limit
in s. 503(1)(a) and therefore s. 503(1)(b) did not
apply. “[Section 503(1)(b)] was not designed to
allow institutional backlog to interfere with a
detainee’s right to be brought before a justice within
a reasonable time of his arrest,” said Justice
O’Ferrall. “The police in this case could have
avoided the problems they faced at the last minute
by bringing the [accused] and his co-accused before
the justice much earlier and seeking an adjournment
to allow the police further time to prepare the bail

packages. In that circumstance, the court would still
learn that the [accused] was in custody, even though
the bail hearing had been adjourned for a short
time.” As for this rendering the detention arbitrary
under s. 9, Justice O’Ferrall stated:
Section 503(1)(a) imposes a positive legal
obligation on police upon which the continued
detention of an accused depends to remain
lawful. A failure to comply with the section,
therefore, means the detention is not “authorized
by law” and “violates section 9.” Although my
colleagues suggest a somewhat different test for
arbitrariness…, a failure to comply with the
section also amounts to arbitrariness under that
test because it means the police have been
acting in a manner that “bears no relation to, or
is inconsistent with” the terms of section 503.
Under both tests, therefore, the failure of the
police to bring the [accused] before a justice in
accordance with subsection 503(1)(a) amounted
to a breach of section 9 of the Charter. [para. 75]

As for a s. 10(b) breach, again Justice O’Ferrall
dissented from the majority. In his view, the

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Volume 16 Issue 1 - January/February 2016
accused’s s. 10(b) rights were violated when he was
not given the opportunity to consult with a lawyer at
the time of the bail hearing because there were two
changes in his jeopardy:
1. The addition of the new charge for possessing
the proceeds of crime. “The charge here was a
separate charge, independent of the original
charge of possession for the purpose of
trafficking, for which there is a maximum
penalty of 10 years in jail. If the accused was
found guilty of both offences, therefore, the
second charge would have the potential of
significantly increasing his sentence. More
importantly, however, with respect for the need
to get further legal advice, the second charge
was based upon different facts. This would affect
what the [accused] might be inclined to say in
any conversations with the police. In my view,
therefore, there was a fundamental and discrete
change in jeopardy once the police decided to
charge the [accused] with the second offence
that gave right to a new opportunity to speak to
counsel.”
2. At the time of the bail hearing his continuing
detention was unlawful and arbitrary. “An
additional change in legal jeopardy occurred
once 24 hours had passed without bringing the
[accused] before a justice. At this point, the
[accused’s] detention became unlawful and
arbitrary, giving rise to a further right to speak
with counsel.”
With regards to the accused’s statement, Justice
O’Ferrall would have excluded it under s. 24(2) and
ordered a new trial if his decision to grant a stay of
proceedings on other grounds was wrong.
Complete case available at www.canli.org

Note-able	
 Quote
“Two things define you: Your patience when you
have nothing and your attitude when you have
everything.” - Unknown

NIGHTCLUB	
 STAFF	
 NOT	
 ACTING	
 
AS	
 POLICE	
 AGENTS	
 WHEN	
 
DETAINING	
 ASSAULT	
 SUSPECT
R. v. Nguyen, 2016 BCCA 32
After the accused was involved in an
altercation at a nightclub with another
man, he was held by nightclub staff on
the street until police arrived. The
attending police officer saw the
accused in the middle of the street struggling to get
away from two employees of the nightclub. When
the officer ran up to the men and asked what was
going on he was told the accused had likely hit
someone on the head with a bottle inside the club.
The officer yelled “police” in the accused’s ear
“police” and told him to stop fighting. When he did
not do so, the officer handcuffed the accused for
officer safety before investigating what had occurred.
The officer was alone, there were many intoxicated
people on the street and the accused was fighting
with bar staff. He did not stop fighting after police
arrived, and he appeared to be strong, very angry
and breathing heavily.
After handcuffing the accused, the officer walked
him to a safer location on the sidewalk. A woman
approached and said, “My boyfriend was just
protecting me because a white guy had touched my
ass.” The accused then said, “Listen man some guy
grabs your girl’s ass you’d knock him out too
wouldn’t you?” The officer had not asked the
accused any questions or engaged in discussion
before the statement was made. Within two minutes
of handcuffing the accused, the officer formed
reasonable grounds to believe he had assaulted
someone and arrested him at 3:01 a.m. for assault
with a weapon and assault causing bodily harm . He
gave the accused the ss. 10 (a) and (b) Charter
warnings. The accused stated he understood and
requested an opportunity to speak to a lawyer he
named.
The officer did not allow the accused to call counsel
on a cell phone from the scene. The scene was not
safe and privacy could not be provided. There were
many people standing nearby on the street and the
accused could not be placed alone in the police

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Volume 16 Issue 1 - January/February 2016
cruiser, which had no shield separator preventing
access to the steering system, the computer and the
radio. Any call made from the scene would have to
be brief and would likely be interrupted to permit
the officer to manage the scene. As the officer began
to write notes, the accused made another unelicited
statement: “Listen, some fucking fag grabbed my
girl’s ass, so I knocked the motherfucker out. Yeah, I
did, big fucking white guy, out cold. He threw a
punch. I laid him out. Yeah.” The accused was
handed over to another officer at 3:10 am and reread the Charter warnings. He was then transported
to the police station in a police wagon and was
allowed to speak with his lawyer at 5:40 am.

British Columbia Supreme Court
The accused sought the exclusion of his
statements under s. 24(2) of the Charter
on the basis that this evidence was
obtained in breach of his s. 10(a) and (b)
rights. He argued, among other things, that the bar
staff acted as agents of the police by exercising a
common law power of arrest and they should have
advised him of his rights under the Charter
immediately upon restraining him. He also
contended that he should have been advised of the
reason for his detention by police and of his Charter
rights immediately upon being detained. Finally, he
argued that his s. 10(b) right was also breached by
the delay in permitting him access to counsel, which
he submitted should have been provided
immediately.
The judge found the nightclub staff had only
detained the accused for an investigation. He had
not been arrested. “Detaining the [accused] and
turning him over to police did not make [the
employees] police delegates,” said the judge. “Given
the finding that they were not exercising a commonlaw power of arrest, nor acting as state agents, they
owed no Charter obligations to the [accused].” As
for the police action, the accused had been lawfully
detained for investigation and there were exigent
circumstances preventing the Charter warnings from
being given for a short period of time. Finally, the
delay from the time the accused was arrested until
he was given an opportunity to retain and instruct
counsel was reasonable such that there was no s. 10

(b) breach. “There was no reasonably available
opportunity for the accused to make his phone call
until he got to the station,” said the judge. “No selfincriminating evidence was elicited accidentally or
intentionally between the time the accused
expressed his desire to consult with a lawyer and the
time his access to a lawyer was facilitated.” The
statements made to the nightclub staff and the police
officer were admissible and the accused was
convicted by a jury for aggravated assault.

British Columbia Court of Appeal
The accused challenged his
convictions arguing the judge
made several errors in finding
his statements to nightclub staff
and the police officer were admissible. He again
submitted, in part, that the nightclub employees
were agents of the police such that they were
required to inform him of his Charter rights. In his
view, he was arrested when the employees did not
let him walk away and held him at the scene until
the police arrived. Therefore, he said he was entitled
to his s. 10 rights. He also said his detention for
safety reasons by police required that he be given a
Charter warning. As well, he contended that his
s. 10(b) Charter rights were breached when he was
not provided with counsel on request.

s. 10(b) Charter
Everyone has the right on arrest or detention ...
(b) to retain and instruct counsel without delay
and to be informed of that right.

Nightclub Staff as Police Agents?
Justice Willcock, speaking for the Court of Appeal,
upheld the trial judge’s ruling that the police were
not acting as police agents and therefore were not
obligated to protect the accused’s Charter rights.
Security staff involved in an investigative detention,
prior to an arrest, do not have Charter obligations.
Here, the nightclub staff had not arrested the
accused and therefore were not required to inform
him of his Charter rights.

PAGE 28

Volume 16 Issue 1 - January/February 2016

ACCUSED	
 NOT	
 DETAINED	
 IN	
 
HOSPITAL:	
 s.	
 10(b)	
 WARNING	
 
NOT	
 REQUIRED

Police Conduct at Scene
Justice Willcock also held the trial judge did not err
in finding that a Charter warning was not required
when the accused was first detained by police
because it was impracticable to do so in the
circumstances. The judge found that exigent
circumstances, some of which were of the accused’s
own making, prevented the warning from being
given for a short period of time. This was a factual
finding that the Appeal Court was not going to
interfere with.

Delay in Accessing Counsel
The Court of Appeal also rejected the accused’s
argument that his Charter rights were breached by a
long delay in allowing him to retain and instruct
counsel:
The trial judge properly noted that the words
“without delay” under s. 10(b) mean at “the first
reasonably available opportunity” or “as soon as
practicable”. She correctly recognized the police
duty … to provide a detained person telephone
access as soon as practicable, to reduce the
possibility of accidental self-incrimination and to
avoid eliciting evidence from the individual
before access to counsel has been facilitated.
Considering the difficulty providing privacy to
the [accused] in the circumstances, … she held
“overheard consultations are not an adequate
alternative to the right to counsel”. Her
conclusion there had been no Charter breach
occasioned by delay was based upon findings of
fact … . [references omitted, para. 61]

The statements made to the officer were not elicited
by him. They were made in an effort by the accused
to have the victim investigated for grabbing his
girlfriend’s “ass” and to explain why he had knocked
out the victim. Moreover, even if there were s. 10
breaches, the statements would not have been
excluded under s. 24(2). The accused’s appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

R. v. Kiene, 2015 ABCA 326
After the accused was involved in a
motor vehicle accident and seriously
injured, he was taken to the hospital
by EMS. A police officer went to the
hospital twice to obtain a legislatively
mandated collision statement from the accused as
required by section 71 of Alberta’s Traffic Safety Act.
During the first attendance the accused was groggy
and could not focus. The officer left at the accused’s
request. A few days later the officer returned to the
hospital in uniform and the accused completed the
one page collision statement. The officer then asked
the accused questions about the collision and
recorded the questions and answers on the same
collision statement form. When asked if he had had
anything to drink that night, the accused stated: “I
remember having 2 beer.” At the end of their
conversation the accused agreed to complete and
sign a form consenting to the release of his hospital
records.
When the officer reviewed the medical records a
few weeks later, he discovered that the attending
EMS members had smelled alcohol on the accused.
He also learned that the accused had admitted to
consuming alcohol and a blood sample taken at the
hospital just over one hour after the accident
revealed a blood alcohol reading of 216 mg%. A
Production Order for the hospital records was
subsequently obtained. He was charged with
impaired driving and over 80 mg% five months later.

Alberta Court of Queen’s Bench
The officer testified that he believed the
accused was the victim in the accident
and he had no suspicion and no grounds
to charge him with anything. He did not
inquire about the accused’s medication or mental
state during their conversation, and was not aware
that the accused had undergone surgery two days
earlier and received psychiatric counseling the day
of the interview. The accused appeared to be alert

PAGE 29

Volume 16 Issue 1 - January/February 2016

“Section 10(b) Charter mandates that a person ‘has the right on arrest or detention ... to
retain and instruct counsel without delay and to be informed of that right; and ...’. The
right does not crystalize until arrest or detention.”
and attentive and the officer did not perceive a
power imbalance between the two, nor did he
conclude that the accused felt compelled to answer
any questions. The officer did, however, inform the
accused during the second visit that it was early in
the investigation and if there were additional
charges, those might be laid later.
The accused described the interaction as a “normal
conversation” with the officer’s demeanor being
pleasant and friendly. He testified that he felt
compelled to give a statement. He said signing the
form consenting to the release of the records “was
part of the investigation and was mandatory” even
though he acknowledged that he wanted to provide
a statement to aid in the investigation of the other
driver in order to prevent the other driver from
getting “off the hook”. He testified that he felt
detained because the officer did not inform him of
his rights and because the officer could stay as long
as he wanted while the accused was confined to a
hospital bed.
The judge accepted a Crown concession that the
accused’s s. 8 Charter right had been breached
because his consent was invalid since he was not
aware of the potential consequences of providing
the consent. However, the judge concluded that the
accused had not been detained at the hospital such
that he was entitled to a s. 10(b) warning. The judge
found that the accused did not feel compelled to
provide the information, nor did the requirement to
provide an accident collision statement under the
legislation impose any serious criminal liability
sufficient to trigger a detention. Rather, the accused
gave his statement because he felt it was his “moral
duty” and because he wanted to assist the
investigation. The hospital records were admitted
under s. 24(2) and a Crown blood alcohol expert
opined that the accused’s blood alcohol level was
between 184 mg% and 219 mg% at the time of the
accident. He was convicted of impaired driving and
over 80 mg%.

Alberta Court of Appeal
The accused appealed his
convictions arguing, in part,
that the trial judge erred by
finding that his right to counsel
had not been breached. In his view, he was
psychologically detained while being interviewed at
the hospital which he was unable to leave. He
submitted he felt compelled to give a statement
because the officer was in uniform, clearly signaled
that the information sought was part of the larger
investigation and that other charges could be
brought. Further, his admission of having “two beer”
was an admission against his interests which would
change the nature of the investigation.
A majority of the Court of Appeal upheld the trial
judge’s ruling. With respect to detention and s. 10(b)
it stated:
Section 10(b) Charter mandates that a person
“has the right on arrest or detention ... to retain
and instruct counsel without delay and to be
informed of that right; and ...”. The right does not
crystalize until arrest or detention. In addition to
its more obvious meanings, detention can
include circumstances, objectively determined,
“when police conduct would cause a reasonable
person to conclude that he or she no longer had
the freedom to choose whether or not to
cooperate with the police”. [reference omitted,
para. 24]

And further:

PAGE 30

Psychological detention can occur where an
individual has a legal obligation to comply with
a request, or a reasonable person would
conclude by reason of the State conduct that he
or she had no choice but to comply. When there
is no physical restraint or legal obligation, in
order to determine whether a reasonable person
in the individual’s circumstances would
conclude a deprivation of liberty, the court may

Volume 16 Issue 1 - January/February 2016
ask the officer to leave as he had done so
several days earlier.

“Psychological detention can occur
where an individual has a legal
obligation to comply with a request, or
a reasonable person would conclude by
reason of the State conduct that he or
she had no choice but to comply.”

The trial judge’s s. 24(2) analysis was upheld and the
accused’s appeal was dismissed.

A Second Opinion
Justice O’Ferrall would have excluded
the evidence under s. 24(2). In his view,
the trial judge underestimated the
seriousness of the Charter-infringing
police conduct and the administration of justice
would have been brought into disrepute by the
admission of the evidence. He would have quashed
the convictions and entered acquittals.

consider a number of factors including whether
the police were making general inquiries
regarding a particular occurrence as opposed to
singling out an individual for a focussed
investigation. Among other factors are the nature
of the police conduct and the place where the
interaction occurred. [references omitted, para.
28]

Complete case available at www.canlii.org

Although another court may have reached a different
conclusion on the facts, the majority found that the
trial judge made no palpable and overriding error in
reaching his conclusion and rejected the
psychological detention argument for the following
reasons:
• The only legally mandated information was the
first page of the collision statement. The officer
told the accused he was required to complete
the collision statement.
• There was no legal obligation to provide the
consent to release medical information. The
officer did not tell the accused that he had to
sign the consent form. He merely asked him to
sign it.
• The accused had no questions about the form.
• The accused testified that he wanted to assist the
police and felt a moral duty to assist in the
investigation of the other driver.
• The accused was not singled out for a focussed
investigation. The officer was unaware that the
medical information would reveal the blood
alcohol content and at the time of obtaining the
consent, the police had no suspicion regarding
the accused’s impairment. The medical consent
was obtained in the context of a general
investigation into the other driver.
• The officer’s demeanor was friendly and nonadversarial, and the accused knew that he could

PSYCHOLOGICAL	
 DETENTION	
 
WITHOUT	
 s.	
 10(b)	
 WARNING	
 
BREACHED	
 CHARTER
R. v. Wong, 2015 ONCA 657
The police attended the accused’s
apartment in response to her reporting
her car stolen. A uniformed officer
arrived, knocked on the door and
entered. He noticed a faint smell of
marijuana smoke and asked whether there was a
place they could talk. He was led to an island in the
kitchen where he saw some “Zigzag” cigarette
papers and a digital scale on the counter. He knew
these might be drug-related but thought it odd that
the accused would invite him into her home when
there was obvious evidence of marijuana use. As the
discussion progressed, the officer asked for some
documents and followed to help her look in a den
for them. On the top of the desk, in plain view, the
officer saw two tin boxes with drug markings, rolling
papers and metal screen filters that he knew were
commonly used to smoke marijuana. The officer
decided to “call” the accused on the drug
paraphernalia and said to her:

PAGE 31

I need to talk to you about something. I’m
starting to see a lot of stuff around your
apartment pertaining to marijuana and drug
use. So, what’s going on here?

Volume 16 Issue 1 - January/February 2016
He told her she was not required to speak to him
and let her know she could be arrested for
possession. When he told her this, she became
fearful. The accused said the items belonged to her
boyfriend and that she was not involved. He asked
several questions about the items and eventually
asked “What else is here that’s not yours, that’s your
boyfriend’s.” In response, the accused pointed to a
drawer under the desk and opened it. Three bags of
marijuana, some identity cards and passports were
observed. The officer reached into the drawer, seized
the bags, and put them on the kitchen counter. The
accused was again cautioned about speaking and
more questions were asked resulting in the accused
revealing a duffle bag on the floor beside a bed. The
duffle bag contained 15 packages of MDMA totaling
11 kilograms. Two detectives arrived, arrested the
accused, cautioned her and informed of her right to
counsel. A search warrant was subsequently
executed and police seized additional drugs, drug
p a ra p h e r n a l i a , a s e m i - a u t o m a t i c f i r e a r m ,
ammunition and various pieces of identification.

Ontario Superior Court
The judge concluded that the accused
had not been detained at any point
before she revealed the contents of the
drawer and identified the duffle bag.
Although she was responding to the officer’s words
and actions, it was her initiative to open the drawer.
There was no compulsion of her by the officer’s
words or conduct. Since there was no detention, s.
10(b) was not triggered. The judge also ruled there
was no search at that point because the accused
voluntarily showed the officer the property of
another and disclaimed any privacy interest in it.
And, even if there was a Charter breach, the judge
would have admitted the evidence under s. 24(2).
Finally, the judge found the accused’s statements to
be voluntary.

Ontario Court of Appeal
The accused submitted that she
had been psychologically
detained when the officer
alleged drug use. The Crown,
on the other hand, asserted there was no
psychological detention because: (i) the officer made
no “demand or direction” to her or otherwise
restricted her liberty; (ii) he was not focusing
suspicion on her but on her boyfriend; (iii) he
cautioned her twice that she was not obliged to say
anything; and (iv) she had the power to conclude the
encounter at any time by asking the officer to leave
her home. In the Crown’s view, the officer believed
he was speaking with a witness, not a suspect.

Detention
Chief Justice Strathy, speaking for the Court of
Appeal, concluded that the accused had been
detained before being asked questions that led to the
discovery of the drugs and other contraband. This
detention occurred before the accused pointed out
the drawer containing the three bags of marijuana
and before she identified the duffle bag in the
bedroom. In his opinion, a reasonable person in the
accused’s situation would conclude that she no
longer had the freedom to choose whether or not to
cooperate with the police and had to comply with
the requests. He found the trial judge did not apply
the proper objective test as required by R. v. Grant,
2009 SCC 32. Chief Justice Strathy then conducted
his own detention analysis:

“A reasonable person in the [accused’s]
position, on being told that she could
be arrested, would conclude that she
was not free to go.”

The circumstances giving rise to the encounter:
The encounter began as a consensual one,
initiated by the [accused]. It soon shifted,
however, into a drug-related investigation
centred on her apartment. This would cause a
reasonable person to believe that the officer was
no longer addressing her as the victim of a car
theft, but rather as a potential suspect in his drug
investigation.
The nature of the police conduct: The officer’s
conduct became increasingly authoritative. He
demanded an explanation for the presence of
the drug paraphernalia: “So what’s going on
here?” He challenged her explanation: if the

PAGE 32

Volume 16 Issue 1 - January/February 2016
officer prevented her from making that informed
decision. [references omitted, paras. 51-52]

scale was for baking, where were her supplies?
He told her that she was in possession of the
drug paraphernalia and that he could arrest her.
As in Grant, the officer took control of the
[accused] and sought to obtain information from
her.

The evidence was excluded under s. 24(2). The
Court of Appeal found the Charter-infringing
conduct to be serious. Although the breaches were
not deliberate, the officer failed to appreciate the
significance of the encounter, the accused’s Charter
rights and the accompanying police obligations. The
accused’s appeal was allowed, the convictions set
aside and acquittals entered.

The characteristics and circumstances of the
[accused]: The [accused] was an apparently
naïve young woman. She was alone, in her small
apartment, with a uniformed police officer who
was undertaking a drug investigation. She told
the officer she was frightened, as she
undoubtedly was. As in Grant, the encounter, as
it developed, was inherently intimidating.

Complete case available at www.ontariocourts.on.ca

WILL	
 AN	
 INITIAL	
 s.	
 9	
 BREACH	
 
RENDER	
 ALL	
 SUBSEQUENT	
 
DETENTIONS	
 UNLAWFUL?	
 

In my view, the [accused] was detained when, in
furtherance of his drug investigation, the officer
told her that he could arrest her based on the
possession of drug paraphernalia and asked her
for an explanation. A reasonable person in the
[accused’s] position, on being told that she
could be arrested, would conclude that she was
not free to go. [paras. 45-49]

R. v. Rowson, 2015 ABCA 354

Since the accused was detained and was not advised
of her right to counsel, her s. 10(b) Charter right was
breached:
The officer did not inform the [accused] of her
right to counsel when he began to question her
for his drug investigation, or at any time before
her arrest. He did inform her of her right to
silence, a right closely related to the right to
counsel. At the same time, however, he made it
clear to the [accused] that he was looking for her
cooperation. He suggested that the best way out
of her predicament was to provide an
explanation for the drug-related paraphernalia
and, later, to direct him to her boyfriend’s
contraband.
The officer encouraged the [accused] to
incriminate herself by demonstrating knowledge
of the presence and location of the contraband,
without advising her of her right to speak to a
lawyer. This goes to the very heart of the
principle underlying s. 10(b). The [accused] had
a right to remain silent unless and until she
made an informed decision to waive that right
and to provide the requested information to the
police. By failing to comply with s. 10(b), the

The accused proceeded into an
intersection from a secondary road
and struck the passenger side of a
vehicle travelling on a major highway.
Three passengers in the other vehicle
were seriously injured. Police arrived on scene at
9:07 pm. The accused said he had stopped at the
stop sign but thought he had time to make it. He
claimed he had not been drinking and did not need
any medical attention. At 9:18 pm a police officer
placed him in the back seat of her police car and
closed the door. She wanted to make sure the
accused was safe. The scene was chaotic and there
was an air ambulance arriving. At 9:23 a second
officer at scene saw the accused speaking on his cell
phone. He told the accused to hang up the phone
and advised him that he was under investigative
detention “in relation to the accident,” but did not
tell him about his right to counsel.
At 9:20 pm, a third officer spoke with the accused in
the back of the police vehicle and noticed the smell
of fresh chewing gum. He told the accused to spit
out his gum and blow air in his direction. The
accused made a “fake blow,” puffing up his cheeks
but not exhaling any air. At 9:37 pm the officer
returned to the police vehicle and saw the accused
using his cell phone again, claiming he was texting a
friend. At this point, the accused was arrested for

PAGE 33

Volume 16 Issue 1 - January/February 2016
dangerous driving and “possibly impaired driving”
and his cellphone was seized. The officer included
“possibly impaired driving” because he wanted the
accused to know that he was still investigating him
for it. The accused was advised of his right to
counsel, searched and placed in the back of another
police vehicle. The accused said he wanted to
contact counsel, but the officer told him that he
could not contact a lawyer at that time due to
privacy concerns.
At 9:50 pm a fourth officer opened the police car
door, asked a few questions but could not smell any
alcohol. At 10:13 pm the accused was transported to
the police station where he was re-cautioned and
asked if he understood. When he said “Yes, sir”, the
officer smelled alcohol on the accused’s breath.
After the accused spoke to legal aid, a roadside
screening demand was made and the accused failed.
The breath demand followed as did an unsuccessful
attempt to contact a lawyer. The accused provided
breath samples resulting in readings of 110 mg%
and 100 mg%. He was subsequently charged with
impaired driving and dangerous driving causing
bodily harm and over 80 mg%.

Alberta Court of Queen’s Bench

reasonable and probable grounds to arrest [the
accused] for dangerous driving,” said the judge. The
breath results were admitted under s. 24(2) and the
accused was convicted of impaired and dangerous
driving causing bodily harm.

Alberta Court of Appeal
The accused argued, among
other things, that the trial judge
made and error in not finding a
continuous arbitrary detention
that began with the initial unlawful detention and
carried through the investigative detention and
arrest, rendering them all unlawful. In his view, the
initial arbitrary detention could not be remedied.
Once the judge found the accused had been
arbitrary detained when placed in the back of the
police car, the later investigative detention by the
second officer and the arrest by the third officer
were not lawful.

Continuous Detention
Justice O’Ferrall concluded that the judge did not err
in failing to find to one continuous arbitrary
detention following the initial arbitrary detention:

The accused argued several Charter
breaches including an arbitrary detention
by the first officer at the scene of the
collision, an unlawful investigative
detention by the second officer without the requisite
grounds, and an unlawful arrest by the third officer
without sufficient cause to do so. The judge did find
several Charter breaches, including an arbitrary
detention under s. 9 when the first officer placed
him in the back seat of the locked police car and
failed to advise him of anything other than to stay
put. However, he held the investigative detention by
the second officer lawful. “The evidence on the
whole supports the fact that [the second officer] had
reasonable grounds to suspect that [the accused]
was connected to a particular crime and that such
detention was necessary when he placed him under
investigative detention and prevented him from
using his cell phone,” said the judge. As for the
arrest, it too was lawful. “The evidence on a whole
supports the fact that [the third officer] had

PAGE 34

I fail to understand how an initial arbitrary
detention can render subsequent lawful
detentions arbitrary. In our view, the arbitrary
part of the [accused’s] detention (i.e., the part
not authorized by law; or authorized by law, but
not Charter-compliant) came to an end the
instant the police had a reasonable suspicion
that the [accused] may have committed the
offence of dangerous driving. And the police had
that suspicion very early in the investigation. So
the arbitrary detention, in our view, was of short
duration.
The trial judge found that the [accused] was
arbitrarily detained when he was placed in the
back of the police car by [the first officer]. The
Crown does not contest that finding. But I reject
the argument that when the second constable …
placed the [accused] under investigative
detention a mere 10 minutes after he had been
placed in the police vehicle by [the first officer],
he had no grounds to do so. At that point in time
there were grounds to suspect that the [accused]
may have been guilty of at least a stop sign

Volume 16 Issue 1 - January/February 2016
violation or failing to proceed in safety which
would have required the preparation of a
summons. The [accused’s] own pre-detention
admission that he thought he could make it
across even two lanes of this divided highway
disclosed grounds for a reasonable belief that a
more serious offence had occurred, namely
dangerous driving.

The trial judge did not err in admitting the
breathalyzer tests under s. 24(2) and the accused’s
appeal was dismissed.

A Second Opinion
Justice Martin, writing his own decision,
also dismissed the appeal on the s. 24(2)
basis, but also commented on the
lawfulness of the arrest:

The [accused] also argues that [he] was never
relieved from the initial arbitrary detention and
that therefore the arbitrary detention continued
notwithstanding that reasonable grounds for
detaining [him] may have subsequently
emerged. I reject that argument. What were the
police to do? Tell the [accused] in one breath
that he was free to go, thereby relieving him of
the arbitrary detention, and in the next breath
advise him that he was being detained while the
police investigated their reasonable suspicion
that [he] had committed a driving offence which
may have caused serious injuries to two women
in a car which appeared to have the right of
way? The [accused] was not free to go.
Irrespective of the possibility of offences having
been committed, the [accused] was required to
remain at the scene. [paras. 22-24]

I wish to add that I do not agree with the
[accused] that there were no grounds to detain
or arrest him at the scene of the accident. The
[accused] was the driver of a half-ton truck that
attempted to cross a major, much travelled, fourlane highway from a secondary road. That
evening the roads were dry and clear, visibility
was unimpeded and all oncoming traffic was
travelling with headlights on. The posted speed
limit on the major highway was 90 km/hour, and
it appears traffic was travelling at approximately
that speed. The [accused] advised that he
stopped before attempting to cross the highway
as required by the stop sign facing him. He told
the first responding police officers that he
proceeded because, "I thought I had time to
make it.”

As for the legality of the accused’s arrest, Justice
O’Ferrall found it too was lawful:
Within 20 minutes of [the second officer]
informing the [accused] that he was under
investigative detention, [the third officer] placed
the [accused] under arrest. [The arresting officer]
seized the [accused’s] cellphone, placed him in
the back seat of his police vehicle, told him he
was being arrested for dangerous driving and
possibly impaired driving and advised him of his
right to counsel.
The [accused] argues that the trial judge erred in
finding that the police had grounds to arrest the
[him]. The Crown, in its factum, listed eight
pieces of information which [the arresting
officer] attested formed the basis for his belief
that the [accused] may have committed the
indictable offence of dangerous driving. In short,
the circumstances of the accident and the road
conditions were such that it was both
subjectively and objectively reasonable to
believe that the [accused] might have committed
the offence of dangerous driving. … [paras.
25-26]

A Third View
Justice Veldhuis took a different view
than her colleagues on the legality of the
accused’s arrest. There were no grounds
to arrest him for dangerous driving. The
grounds accepted by the trial judge were mostly
neutral and could not ground an arrest for dangerous
driving. “The fact that the accident was serious did
not give the officer any information about whether
the driving that caused it was criminal, nor did the
location of the driver of the truck, the time of day,
the speed limit at that portion of the roadway or the
fact that 22X is a busy roadway,” she said. Since the
accused’s arrest was unlawful, it was arbitrary and
was never cured. This significantly impacted the trial
judge’s s. 24(2) analysis. Justice Veldhuis would have
allowed the appeal, excluded the breath tests, set
aside the convictions and acquitted the accused.
Complete case available at www.canlii.org

PAGE 35

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2015 Average Tour: 5 years 8 months
2015 Average Age: 39
2015 Deaths by Gender: female - 0
male - 3
2015 Deaths by Province:
✴ Alberta - 2
✴ British Columbia - 1

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2015 Deaths by Cause:
✴ gunfire - 1
✴ heart attack - 1
✴ automobile accident - 1

Last 10 years by Gender:
✴ female - 6
✴ male - 39
PAGE 36

Volume 16 Issue 1 - January/February 2016

Canadian Peace Officer On-Duty Deaths (by cause & year)
Cause

2015

2014

2013

2012

Assault
Auto accident

2011

2010

2009

2008

2007

Total
1

1
1

1

Drowned

2

3

3

1

3

1

1

2

Heart attack

3

15
2

1

Duty related illness
Gunfire

2006

1

1

3

1

1

1

3

13
2

1

Natural disaster

2

2

Stabbed

1

1

Struck by vehicle

1

Training accident

1

Vehicular assault

1

2

1

1
2

1

1

5

Total

3

5

6

5

3

7

4

2

4

6

45

Female

0

1

1

1

0

1

1

0

0

1

6

Male

3

4

5

4

3

6

3

2

4

5

39

PEACE	
 OFFICER	
 ASSAULTS

On-Duty Deaths 2006-2015 by Gender

According to a Statistics Canada report, “Policereported crime statistics in Canada, 2014,”
assaulting a peace officer dropped (-5%) from 2013
to 2014. In 2014 there were 9,450 assault peace
officer offences compared to 9,826 the previous
year. From 2004 to 2014, the assault against peace
officer rate has dropped (-7%).
For other assaults in 2014, there were:
• 153,352 reports of common assault (level 1).
➡ down 5% from 2013.
• 44,788 assaults with a weapon or bodily harm
(level 2).
➡ down 4% from 2013.
• 3,242 offences of aggravated assault (level 3).
➡ down -1% from 2013.
Source: Statistics Canada, 2015, “Police-reported crime statistics in
Canada, 2014”, Catalogue no. 85-002-X,released on July 22, 2015.

PAGE 37

Female

13%

Male

87%

Volume 16 Issue 1 - January/February 2016

U.S. ON-DUTY DEATHS RISE

U.S. Peace Officer On-Duty Deaths
Cause

During 2015 the U.S. lost 130
peace officers, down three from
2014. The top cause of death
was gunfire (39) followed by
automobile accidents (28), heart
attack (18), vehicular assault (8),
911 related illness (6), and
bombs (6).
Texas lost the most officers in 2015 at 13 - followed by Georgia
(10), Louisiana, New York and the U.S. Government at nine each,
California (5), Kentucky (5),
Mississippi (5), Pennsylvania
Female
(5), Alabama (4), Colorado (4),
8%
New Jersey (4), Puerto Rico (4)
and Tennessee (4). The average
age of deceased officers was
40 years while the average
tour of duty was 12 years and
six months. Men accounted
for 92% of U.S. officer deaths
while women made up 8%.
Male
92%
Source: http://www.odmp.org/year.php [accessed February 13, 2016]

Inscription at the National Law Enforcement Officers Memorial,
Washington, D.C.

2015

2014

911 related illness

6

7

Accidental

2

-

Aircraft accident

1

-

Assault

3

2

Automobile accident

28

27

Bomb

6

-

Drowned

-

2

Duty related illness

2

3

Fall

1

-

Fire

-

1

Gunfire

39

47

Gunfire (accidental)

2

2

Heart attack

18

18

Motorcycle accident

4

4

Struck by vehicle

5

5

Vehicle pursuit

5

5

Vehicular assault

8

10

Total

130

133

“It Is Not How These Officers Died
That Made Them Heroes.
It Is How They Lived.”
U.S. On-Duty Deaths by Year (2005-2014)
Year

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

Total

Deaths

130

133

120

134

180

177

140

161

204

161

1540

Avg. age

40

41

43

42

41

42

40

40

40

38

Avg. tour

12 yrs.

12 yrs.

14 yrs.

12 yrs.

13 yrs.

12 yrs.

11 yrs.

11 yrs.

11 yrs.

11 yrs.

6 mos.

10 mos.

5 mos.

8 mos.

7 mos.

2 mos.

11 mos.

12 mos.

5 mos.

5 mos.

Female

10

4

7

12

12

10

3

16

9

9

92

Male

120

129

113

122

168

167

137

145

195

152

1448

PAGE 38

Volume 14 Issue 6 - November/December 2014

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