POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

ABBOTSFORD POLICE
12th ANNUAL
10K CHALLENGE/5K FUN RUN
SEPTEMBER 28, 2002
Proceeds donated to BC
Special Olympics.
$10,000
in
prizes
including:
•
•
•
•
•
•
•
•
•
•

Annual Apollo Memberships
2 bikes from Wal-Mart
Boston Pizza School Pizza Parties
West Jet flight for two
$1000 in prizes from A&B sound
$500 in prizes from the Optimist Club
Fraserway RV rental
Ramada Inns accommodations
Woodland’s at Sunpeaks get-away
Big Bar Guest Ranch get-aways

REGISTRATION

1. Regular: to September 15
2. Late: September 16-September 26
3. Race Day: September 28, 7am-8am
$$$ Register Early & Save $$$

INFORMATION
1.

LOG ON: http://www.abbotsfordpolice.org and
print out a registration form

2.
3.

E-MAIL: kjones@city.abbotsford.bc.ca
TELEPHONE: 604-859-5225 or 1-800-898 –6111
and ask for Cst. Jones

GROUP INCENTIVES
Log on: http://www.abbotsfordpolice.org to find out
more about the group incentives available.

Volume 2 Issue 8
August 2002

NEW OFFENCE FOR DISARMING
A POLICE OFFICER
Effective July 23, 2002, a
new Criminal Code provision
was added creating a dual
offence punishable by up to
5 years in prison for persons
who attempt to disarm a peace officer. The new s.270.1
reads as follows:
s.270.1 Criminal Code
(1) Every one commits an offence who, without the consent of
a peace officer, takes or attempts to take a weapon that is in
the possession of the peace officer when the peace officer is
engaged in the execution of his or her duty.
(2) For the purpose of subsection (1), "weapon" means any
thing that is designed to be used to cause injury or death to,
or to temporarily incapacitate, a person.
(3) Every one who commits an offence under subsection (1) is
guilty of
(a) an indictable offence and liable to imprisonment for a term
of not more than five years; or
(b an offence punishable on summary conviction and liable to
imprisonment for a term of not more than eighteen months.

SASKATCHEWAN’S TOP COURT
DIVIDED ON RANDOM DUAL
PURPOSE TRAFFIC STOPS
R. v. Ladouceur, 2002 SKCA 73
A Saskatchewan detachment of the
RCMP set up a vehicle check stop
program at a weigh scale on the Trans
Canada
Highway
code
named
“Operation Recovery”. In addition to
highway traffic safety, the police were also conducting
these stops to interdict drugs, tobacco, firearms,
alcohol, wildlife, and other provincial and criminal
offences. Others present at the check stop included
Customs and Immigration officials, Highway Transport
Patrol, and Saskatchewan Finance Field enforcement
officers. As the accused approached the check-point in a
station wagon, an officer observed his unrestrained

passenger make some “strange movements” and lean
forward with his hands down. A sergeant stopped the
vehicle and the accused produced a valid Ontario driver’s
licence, a photocopy of the vehicle’s registration, and a
rental agreement for the vehicle designating the
passenger as the only authorized driver. Both men were
acting nervously and avoiding eye contact. The officer
noted a strong smell of air freshener accompanied by a
second strange, but unidentifiable odour. The accused
was directed into the secondary staging area because he
was not listed as the driver on the rental agreement and
because the sergeant wanted to make further enquiries
on both men and into the masking of the strange odour.
The officer sought further assistance from a constable
because he wanted to question the men separately and
compare their stories. After asking the accused to exit
the vehicle and checking the brakes, the sergeant
further questioned him while the constable requested
identification from the passenger, who remained
seated in the vehicle, because he was not wearing his
seatbelt. The passenger acted nervously, avoided eye
contact, and his hands were shaking as he passed his
driver’s licence to the officer. While speaking to the
passenger, the constable detected an odour of fresh
marihuana and observed an air freshener bottle and a
small piece of marihuana plant like material on the
console of the car. Also noted were a plant like flake, a
package of rolling papers, and a pair of scissors lying on
the floor. Police conducted CPIC enquiries of the men
and learned that the passenger had a previous
conviction for possession of marihuana. After
conferring with one another, the officers determined
there were reasonable grounds to arrest the men for
possession of marihuana. As the constable returned the
passenger’s identification to him, he detected a strong
smell of marihuana and observed a partially burned
cigarette in the ashtray. The two were arrested for
possession of a controlled substance and advised of
their rights. Following the arrests, the police searched
the car and found a hockey bag in the hatch area of the
vehicle containing 4.55 kgs. of marihuana with an
estimated street value of $30,000.
At trial, the charge of possession of a controlled
substance for the purpose of trafficking was dismissed
after the trial judge excluded the evidence. Since he
could find no authority that would allow the police to
randomly stop motorists beyond highway safety
matters to check for drugs, tobacco, firearms, alcohol,
or any other infractions under provincial legislation or
the Criminal Code, he concluded that the police

Volume 2 Issue 8
August 2002

arbitrarily detained the accused in violation of s.9 of
the Charter. The Crown appealed the dismissal of the
charges to the Saskatchewan Court of Appeal arguing
that the trial judge erred.

An Unlawful Stop?
In a 2:1 decision, Saskatchewan’s highest court
dismissed the Crown’s appeal. Justice Jackson
examined the law and concluded that the police do have
the authority to randomly and arbitrarily stop vehicles
at common law as part of an organized check-stop
program designed to reduce impaired driving or where
provincial legislation permits the random stopping of
motorists, whether as part of an organized program or
not. Such stops, although arbitrary, are saved by s.1 of
the Charter as being a reasonable limit demonstrably
justified in a free and democratic society to address
the pressing and substantial concern of highway safety.
He also held that an additional authority under the
common law would allow the police, if they have an
articulable cause to believe an offence has been
committed, to stop the vehicle and make limited
enquiries. On the other hand, if the sole purpose of
the random traffic stop is checking for possible
unknown, non-traffic related crimes, the police cannot
rely on motor vehicle legislation. Furthermore, if the
police combine the checking for illegal contraband with
a random check-stop program for motor vehicle
infractions, the arbitrary detention is no longer saved
by s.1.
In this case, “Operation Recovery” had been designed
for the express purpose of determining whether other
crimes, in addition to motor vehicle offences, had been
committed. By relying on the check-stop program for
reasons of vehicle safety, the police were improperly
attempting to acquire grounds for arrest. Justice
Jackson concluded that “Operation Recovery was
intended to be a comprehensive check for criminal
activity that could be investigated by stopping all cars
on the Transcanada highway” and “the law does not
authorize the police to conduct a random check-stop
operation which has one of its purposes an investigation
or search for possible illegal contraband”. Hence, the
detention was arbitrary and the evidence was properly
excluded. He further cautioned that ordinary Canadians
should not be subjected to intrusive searches, as one
might expect at border crossings, on domestic
highways under the guise of vehicle safety. Justice
Jackson found that the accused’s right to be free from

2

arbitrary detention was breached and could not be
cleansed by s.1.

allowed the appeal and directed a new trial with the
evidence being admissible.

Chief Justice Bayda concurred with Justice Jackson,
and found that all check-stops result in an arbitrary
detention. He agreed that if the aim is for highway
traffic safety (sobriety, licences, ownership, insurance,
and mechanical fitness of cars), the Charter breach is
saved. In contrast, if the stop is for “the general
detection of crime or the indiscriminate identification
of criminals using the highway”, the stop is unlawful.
Chief Justice Bayda concluded that these two aims
cannot operate together. In short, where one aim
(traffic safety) of the random check-stop is lawful, a
secondary unlawful purpose (general crime control)
would render the entire stop unlawful.

Complete case available at www.lawsociety.sk.ca

A Lawful Stop?
Justice Tallis disagreed with the majority. He found
that the police are entitled to randomly stop motor
vehicles for the purpose of enforcing highway and
safety related regulations, which includes the
enforcement of numerous provincial statutes and
Criminal Code provisions related to impaired driving.
Although these broad purposes result in an arbitrary
detention, the random stops are constitutional because
they are saved by s.1 of the Charter. Justice Tallis
reasoned that the purpose of this stop was properly
grounded in the police powers of enforcing highway and
safety related regulations and was not used “as a mere
ruse to embark on an invalid search of the vehicle”.
Any other powers incidentally exercised to enforce
other enactments were exercised in accordance with
the law.
While in the course of their duties during this valid
stop, the officers were entitled to use “their
perceptory senses of sight and smell” to detect
criminal wrongdoing. The “police are not expected to
turn a blind eye to the commission of other offences”
and would be derelict in their duties if they did. Here,
the officers conducted themselves within the spirit
and primary aim of a highway safety stop--it was not
flawed, was lawful from the beginning, and was not used
for any improper purpose. The officers’ observations
accumulated during the random stop provided
reasonable grounds for a search. Further, the police
had exigent circumstances to undertake the search
under s.11 of the Controlled Drugs and Substances Act
or s.487.11 of the Criminal Code because of the
mobility of the vehicle. Justice Tallis would have

Volume 2 Issue 8
August 2002

Editor’s Note: There have been other provincial

appellate decisions addressing similar issues. In Brown
v. Durham Regional Police Force (1998) 131 C.C.C. (3d) 1
(Ont.C.A.), the police set up a check-stop on a road
leading to a motorcycle club’s property where the police
learned they were planning on holding a weekend party.
Anyone believed to be heading to or from the property,
anyone driving a Harley Davidson motorcycle, and
anyone wearing the insignia of a motorcycle club was
stopped. Their driver’s licences, ownership papers, and
insurance documents were checked on CPIC.
Furthermore, their vehicles and equipment were also
inspected to ensure compliance with motor vehicle
legislation. The stops were videotaped and used to
gather police intelligence. The Ontario Court of Appeal,
in a unanimous judgment, found that the stops were
properly circumscribed within the ambit of highway
traffic concerns. The fact that the police were also
interested in knowing the identity of those connected
to organized crime did not make the stop unlawful.
Provided any co-existing police purpose was proper,
such as maintaining the public peace, investigating
other criminal activity, or intelligence gathering, the
stops remained lawful. However, had the collateral
purpose been improper or violated the constitutional
rights of the detainee, such as stopping someone based
on colour or gender, the entire stop would have been
rendered unlawful.
In R. v. Guenette (1999) 136 C.C.C. (3d) 311 (Que.C.A.),
a police officer used the powers under Quebec’s
Highway Safety Code to investigate his suspicions that
the accused, who was seated behind the wheel of his
parked car in front of a restaurant with his engine
running and his lights off, might be about to commit a
burglary. When asked to identify himself, the accused
provided a false name and was subsequently acquitted
at trial of obstructing a police officer in the lawful
execution of his duty. The Crown appealed to the
Quebec Court of Appeal which, in a 2:1 decision
dismissed the appeal. Justices Fish and Nuss held that
the officer used a statutory power to stop the vehicle
for a reason entirely unrelated to highway traffic
purposes.
In other words, the officer used the
Highway Safety Code as a pretext or subterfuge in an
attempt to justify the stop. The stop of the accused

3

was arbitrary and the officer was therefore not in the
lawful execution of his duty.
Justice Pigeon, in his minority opinion, held that the
Highway Safety Code permits the police to randomly
stop driver’s to check for licences, ownership,
insurance, and mechanical fitness. Moreover, the
officer was entitled to carry out a “routine enquiry”
under the motor vehicle legislation even though he had
“vague suspicions that the driver was getting ready or
had committed an offence under the Criminal Code”.
He described the officer as wearing two hats when he
makes a stop—responsible for both enforcement of
highway safety and the Criminal Code. In recognizing
that the Highway Safety Code permits routine stops
but the Criminal Code does not, as long as the officer
limits his intervention with the driver to what is
permitted under the Highway Safety Code he is
entitled to act. The police cannot however, use the
provincial traffic legislation to carry out a general
investigation or to search a vehicle. Since the officer
limited his inquiry to the objectives permitted by the
motor vehicle statute, in Justice Pigeon’s view he was
acting lawfully and the accused should have been
convicted.
In R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.),
the police stopped the accused after the vehicle in
which he was a passenger had driven away from a
suspected crack house. The accused was asked to exit
the vehicle and a baggie of cocaine was subsequently
seized. He was convicted of possession of cocaine for
the purpose of trafficking but appealed to the Ontario
Court of Appeal. The officer who stopped the accused’s
vehicle did so for investigative reasons entirely
unconnected with reasons related to enforcing driving
related laws. Justice Doherty, for a unanimous Court,
held that “once…road safety concerns are removed as a
basis for the stop, then the powers associated with and
predicated upon those particular concerns cannot be
relied upon to legitimize the stop”. If the stop is
unrelated to highway safety, the police cannot use the
Highway Traffic Act to detain a person for an
investigation simply because they are the occupant of a
motor vehicle.
Finally, in R. v. Montour and Longboat [1995] 2 S.C.R.
416, the Supreme Court of Canada restored a trial
judge’s decision to exclude evidence that was later
overturned by the New Brunswick Court of Appeal. In
that case, police officers stopped the accused who
were the occupants of a van being driven on a highway.

Volume 2 Issue 8
August 2002

In the back of the van police observed tobacco
products and the accused were arrested. A search
warrant was subsequently issued, tobacco seized, and
the accused charged with Excise Act offences. The
trial judge concluded that the officer did not stop the
van for any traffic reason but to look in the vehicle
because he had a hunch there may be contraband
tobacco. The trial judge found the stopping of the
vehicle to be arbitrary and a breach of s.9 of the
Charter, which could not be saved by s.1. As a
consequence, the evidence was excluded and the
accused were acquitted. On appeal to the New
Brunswick Court of Appeal, Justices Turnbull and Hoyt
held that the New Brunswick Motor Vehicle Act only
permitted the police to arbitrarily detain motorists for
licence and registration checks as well as mechanical
fitness and safety inspections. There was no power
under the legislation to stop motorists to check for
contraband. Justice Angers on the other hand, was not
persuaded that any of the accused’s rights were
violated.

Operational Impact:
The following key points can be relied upon to assist
the police in their operational duties:
1.

Where the police set up a check-stop program
aimed at highway traffic safety such as impaired
driving, the detention of a motorist is arbitrary
but saved by s.1 of the Charter;

2.

Where the police have the statutory authority to
randomly stop motorists under their provincial
motor vehicle legislation (eg. British Columbia and
Ontario), the stop is arbitrary but also saved by
s.1;

3.

If the police do not put their mind to a highway
traffic concern when randomly stopping motorists,
but instead have an investigative purpose unrelated
to traffic safety, the arbitrary detention is not
saved by s.1;

4.

Where the police have an articulable cause (a
lesser but included standard of reasonable
grounds) to stop a motorist, the detention is not
arbitrary and consequently not a s.9 violation;

5.

Where the police arbitrarily stop a vehicle for
highway safety and continue to detain the
occupants for reasons neither related to the
original purpose nor based on an articulable cause

4

of other unlawful activity, the extension of the
detention becomes an unsaved constitutional
violation. In other words, once the highway traffic
concerns
are
addressed,
without
further
justification for detaining the person the arbitrary
detention is no longer cleansed by s.1.
6.

In Saskatchewan at least, a dual or multi purpose
traffic stop that has as one of its purposes non
traffic related crime control, is unconstitutional.
However, in other provinces it appears as long as
the officer puts their mind to highway traffic
concerns and does not exceed the legitimate
scope of the stop (such as searching for
contraband or asking questions unrelated to
driving offences) other legitimate police purposes
beyond highway safety will not render the entire
stop unlawful. Conversely, illicit police motives,
such as targeting only persons of colour or only
female drivers, will transform an otherwise lawful
traffic stop into an improper detention regardless
of legitimate highway safety concerns factoring
into the decision. Finally, using highway safety as
a pretext, when it was not considered at all by the
officer, will poison the legitimacy of the stop and
violate the s.9 rights of the motorist.

•
•
•
•

•

•

Photography, like fingerprinting,
serves a very useful purpose in
identifying persons responsible
for crime. Uses of a photograph
include:
•

The impact of the Ladouceur judgment on the rest of
Canada has yet to be determined. One can imagine that
it will not be long before this issue goes before the
Supreme Court of Canada for final resolution.

•

FINGERPRINTING AND
PHOTOGRAPHING

•

•

•

Sgt. Mike Novakowski

Fingerprinting and photographing may
serve a wide variety of purposes in the
criminal justice system. Fingerprinting
purposes
include
the
following
applications1:
•

•

1

Linking the accused to the crime where latent prints
are found at the scene or on other physical
evidence;
Determining if the accused has been charged with
or convicted of other crimes in order to decide if
- the accused should be released pending trial, or
- the accused should be proceeded against by way of
summary conviction or indictment;

See R. v. Beare and Higgins, (1988) 55 D.L.R. (4th) 481 (S.C.C.).

Volume 2 Issue 8
August 2002

Determining if the accused is unlawfully at large;
Determining if the accused has outstanding charges;
Assisting in the apprehension of the accused if they
should fail to appear;
Identifying prisoners with suicidal tendencies, sex
offenders, career criminals, and persons with a
history of escape so they can be segregated or
monitored as may be appropriate;
Assist the crown in determining the punishment it
should seek by revealing whether the accused is a
first time offender or otherwise; or
Provide advantages to an innocent accused
- by establishing that another has in fact committed
the crime, or
- by ensuring the innocent will not be wrongly
identified with someone else's criminal history.

A photographic line-up in which a witness is provided
the opportunity of selecting and identifying a
suspect;
Refreshing a person's memory of the appearance of
an accused person;
For release to the public in an effort to
- apprehend a wanted person
- notify the public of a dangerous offender;
Recording distinguishing features which would assist
identification such as tattoos, marks, or scars; or
Providing advantages to the innocent person by
eliminating them as a suspect.

Identification of Criminals Act
The Identification of Criminals
Act (ICA) is a federal statute
providing police with the authority
to photograph and fingerprint
persons as long as the necessary
requirements of the Act are
satisfied.
Following a constitutional challenge2,
mandatory fingerprinting under the Act of a person
charged but not yet convicted has been held not to
violate a person’s rights under s.7, 8, 9, 10, or 11(d) of
the Charter. Section 2(1) ICA authorizes fingerprinting
and photographing of accused persons in narrowly
2

See R. v. Beare and Higgins, (1988) 55 D.L.R. (4th) 481 (S.C.C.).

5

defined circumstances. If properly obtained, the police
may then use the photograph taken, such as in a photo
line-up, to assist in an investigation3.
Section 2(1) ICA authorizes the non-consensual taking of
fingerprints and photographs in the following
circumstances:
•
•
•
•
•
•

any person who is in lawful custody charged with an
indictable offence4,
any person who is in lawful custody convicted of an
indictable offence5,
any person who is in lawful custody charged with an
offence under the Official Secrets Act,
any person in lawful custody convicted of an offence
under the Official Secrets Act,
any person who has been apprehended under the
Extradition Act, or
any person alleged to have committed an indictable
offence6 who is required to appear for
fingerprinting and photographing by
- an appearance notice,
- promise to appear,
- recognizance, or
- summons.

"lawful custody" means the
person's loss of physical
liberty
must
be
legally
authorized. This custodial
detention may result from a
valid arrest, or a continued
detention under conviction (warrant of committal) or
remand. If the custodial detention is not lawful it could
not be said the person was in lawful custody.
"charged" has been interpreted by the courts to have
different meanings. There is no doubt that a person is
charged when an information is sworn against the person
accusing them of committing a criminal offence7.
Although this does appear to be the popular view, some
courts have adopted a more broad meaning of "charge"
for the purposes of the ICA to include the interaction
between the arresting officer and the arrestee during
the "usual and reasonable practices of peace officers

3

R. v. Tam (1995) 100 C.C.C. (3d) 196 (B.C.C.A.) at p. 209.
Does not include offences designated a contravention under the Contraventions
Act where the Attorney General has made an election to proceed by information as
if a ticket were issued.
5
See note 4.
6
See note 4.
7
R. v Lewis [1996} B.C.J. No.1254 (B.C.S.C.), R. v. G.M.R. [1994] N.S.J. No. 566
(N.S.C.A.), R. v. Berthiaume (1997) 45 C.R.R. (2d) 170 (B.C.S.C.) see also R. v.
Connors (1998) 121 C.C.C. (3d) 358 (B.C.C.A.) per Newbury J.A. and Donald J.A.
4

Volume 2 Issue 8
August 2002

when they arrest and book persons suspected of
crimes8" prior to the swearing of an information. The
former approach should be adopted as this appears to be
the majority opinion. In circumstances where a person is
arrested on an outstanding arrest warrant for an
indictable offence and fingerprints and photographs are
required, the person could be subject to the ICA
processes because a criminal warrant issued by the court
requires the laying of an information.
"indictable offence" means the nature of the offence
committed must be indictable. For the purposes of the
ICA, the term indictable offence includes dual offences
which may be prosecuted summarily regardless of how
Crown elects to proceed9. Crown election for hybrid
offences has an impact procedurally on how the charges
will proceed, but does not change the character of the
offence from that of an indictable offence. Therefore,
there is no authority under the ICA to fingerprint and
photograph a person charged with a strictly summary
conviction offence.
"convicted
of" means the
person must have been subject
to a conviction in a court of
competent jurisdiction for the
offence. For example, this would
authorize the fingerprinting and
photographing of inmates who
are in the lawful custody of a
federal institution and serving their sentence of
incarceration.
"alleged to have committed" means it is not necessary
that the person be charged (information sworn) with the
offence but only that it is alleged the person has
committed the offence.
"required [to appear]” means the person was released
by the police on an Appearance Notice, Promise to
Appear or Recognizance, or by way of Summons issued by
a court, and is required to appear at a later time and
date fixed by the police or Court for the purposes of
fingerprinting and photographing. Upon attendance by
the person, the police would be afforded the authorities
and protections of the ICA.
There is no statutory direction as to the amount of time
(hiatus), which must be given to the person between the
issuance of the release document and the date and time
8

R. v. Gale (1997) Docket:84579-DC2 (B.C.S.C.), see also R. v. Connors (1998) 121
C.C.C. (3d) 358 (B.C.C.A.) per Cumming J.A.
R. v. Connors (1998) 121 C.C.C. (3d) 358 (B.C.C.A.)

9

6

of appearance for the fingerprinting and photographing.
Departmental policy regarding this "turn around" time
should guide the officer in their decision. It has been
suggested that the issuance of an Appearance Notice,
Promise to Appear or Recognizance directing a person to
attend the police department within five minutes of
release to be fingerprinted and photographed may be
exercised for the purpose of compelling attendance10.
However, there is no offence of failing to appear for
fingerprinting or photographing following release unless
a justice has confirmed the method of release11.

Use of Force
If the taking of fingerprints and photographs is
authorized under the ICA, the police may demand and
use necessary force12 in obtaining the fingerprints and
photographs from an uncooperative person13. If an
individual detained in custody exhibits signs that the
taking of fingerprints will require the application of
physical force, it should be ensured that an information
has been laid before a justice. A properly sworn
information will address any argument that the person
was not "charged" with an indictable offence prior to the
fingerprints and photographs being taken. Since the
courts appear to be adopting the approach that a person
is only "charged" when an information is sworn, an
information being laid prior to the application of physical
force will remove any ambiguity.

Use of Fingerprints and Photographs
Subsection 2(3) of the Act
allows the fingerprints and
photographs to be published
for law enforcement purposes.
This could include the use of
fingerprints for crime scene
comparison or photographs
released to the public for
information on the whereabouts of wanted persons.

Types of Fingerprints/Photographs
Section 2(1) ICA provides that persons may be
fingerprinted or photographed or subjected to such
other measurements, processes, and operations having
the object of identifying persons as are approved by the
Governor in Council. The Governor in Council has only
sanctioned fingerprinting, palmprinting, and photography
under the ICA Regulations.
Unless the types of prints fall in the category of
fingerprints or palmprints, the taking of other bodily
prints would not be authorized under the Act. For
example, the taking of footprints purportedly under the
authority of the Act was found not to be authorized14.
Photography is not limited to conventional methods, but
includes the use of a video image capture system15. The
ICA does not place a restriction "on
the number or kind of photographs
which may be taken16". Thus
photographs are not restricted to
the face of the person but may be
legitimately taken of other bodily
areas, such as tattoos, for the
purpose of identification.

Young Offenders
The ICA applies to young persons as defined in the
Young Offenders Act in the same manner as it applies to
adults17.

COMMON LAW
It appears the police may have the common law authority
to fingerprint a person. The Supreme Court of Canada in
R. v. Beare (1988) 55 D.L.R. (4th) 481 (S.C.C.), without
definitely deciding the issue, found the common law
experience strongly supports the view that custodial
fingerprinting is justifiable at common law. LaForest J.
for a unanimous court stated:
It seems to me that a person who is arrested on reasonable
and probable grounds that he has committed a serious
crime, or a person against whom a case for issuing a
summons or warrant, or confirming an appearance notice
has been made out, must expect a significant loss of
personal privacy. He must expect that incidental to his

Protection from Liability
Section 3 ICA provides the police with protection from
liability, both civil and criminal, for anything done in
compliance with the Act.

14

10

See comments of Donald J.A. in R. v. Connors (1998) 121 C.C.C. (3d) 358 (B.C.C.A.)
See s.145(5) of the Criminal Code
See s.2(2) of the Identification of Criminals Act
13
See R. v. G.M.R. [1994] N.S.J. No.566 (N.S.C.A.)
11

12

Volume 2 Issue 8
August 2002

See R. v. Nielsen and Stolar (1984) 16 C.C.C. (3d) 39 (Man.C.A.) leave to appeal on
Nielsen to S.C.C. refused, Stolar reversed on other grounds (1988) 40 C.C.C. (3d) 1
(S.C.C.)
15
See Crawford v. William Head Penitentiary [1992] 56 F.T.R. 32 (T.D.).
16
R. v. Myers [2000] O.J. No.1534 (Ont.S.C.J.)
17
See s.44 of the Young Offenders Act

7

being taken in custody he will be subjected to observation,
to physical measurement and the like. Fingerprinting is of
that nature.

In R. v. Feeney [1997] 2 S.C.R. 13 (S.C.C.) police had
taken fingerprints from the accused following what the
majority found was an unlawful arrest. As a consequence
of the unlawful arrest, it could not be said the taking of
the fingerprints were lawful. However, in citing Beare,
Sopinka J. for the majority held:
After he was taken to the…detachment, the appellant was
fingerprinted. The fingerprints matched prints found on
the deceased's refrigerator and on an empty beer can in
the deceased's truck. R. v. Beare [1988] 2 S.C.R. 387,
held that fingerprinting as an incident to a lawful arrest
did not violate the Charter. In the present case,
however, the arrest was unlawful and involved a variety of
Charter breaches. Compelling the accused to provide
fingerprints in the present context was, in my view, a
violation of s. 8 of the Charter, involving as it did a
search and seizure related to the appellant's body, about
which, at least in the absence of a lawful arrest, there is
clearly a high expectation of privacy. (emphasis added)

Again citing Beare, in R. v. Dilling (1993) 84 C.C.C. (3d)
325 (B.C.C.A.) leave to appeal to S.C.C. refused 88 C.C.C.
(3d) vi (S.C.C.), Goldie J.A. for the court stated, "a
person so arrested [where the detaining officer had
doubts as to identification] could be fingerprinted,
searched, photographed, items in his possession seized,
and notes taken of marks and scars and all this without
his consent18". In a more recent case, R. v. Connors
(1998) 121 C.C.C. (3d) 358 (B.C.C.A.), police arrested an
impaired driver and subjected him to the fingerprinting
process without first having an information sworn. This
fingerprint was then linked to a fingerprint previously
found at the scene of a robbery. The Court was divided
on whether the common law authorized fingerprinting
incidental to lawful arrest. Cumming J.A. found "the
power to fingerprint incident to arrest for an
indictable offence has its roots in and exists at
common law"19. Donald J.A. found it "neither necessary
nor appropriate to declare on the facts of [the] case a
common law power to take fingerprints incidental to
lawful arrest". Newbury J.A. found the ICA occupied
the field20 in so far as summary conviction offences are
concerned and not as augmenting any powers which
police officers had at common law. In R. v. Myers
[2000] O.J. No.1534 (Ont.S.C.J.), the court held that

the police had the common law right to photograph the
accused incidental to arrest when the photographs
were a necessary element in proving identity of the
perpetrator of the crime. In this case, photographs
were taken of the accused's face and injuries to his
upper chest depicting the condition of his body.

PHOTOGRAPHS
TAKEN
FOR
IDENTIFICATION PURPOSES

COURT

Photographs such as Polaroid photographs taken of an
arrested person for the purpose of preserving evidence
of identification has been held, in prescribed
circumstances, not to be a violation of the Charter. In R.
v. Dilling (1993) 84 C.C.C. (3d) 325 (B.C.C.A.) leave to
appeal to S.C.C. refused 88 C.C.C. (3d) vi (S.C.C.), police
detained the driver of a vehicle for a prostitution
(summary conviction) related offence following the
driver's communication with an undercover police
officer. One of the detaining police officers took an
unposed Polaroid flash picture of the driver without
informing the accused the photograph was about to be
taken. The sole purpose of the photograph was to assist
the undercover police officer with identifying the driver.
The photograph was later shown to the undercover
officer shortly after the communication with the
suspect. The accused challenged the taking of the
photograph as a violation of s.7 (right to privacy and
right against self-incrimination), s.821 (search and
seizure), and s.1022 (right to counsel) of the Charter. In
finding no constitutional violations, Goldie J.A. stated:
The camera recorded what the eye of each police officer
could see at the moment it was taken. For the purposes of
later identification a still photograph records less than
deliberate police scrutiny. Examples of what the camera
could not record are demeanour and repetitious or
involuntary body movement. A still photograph is no more
permanent than a sketch or the officer's notes.

The court found the photograph "was a means of
refreshing the recollection of the undercover officer
that the person answering the charge in the court-room
was the person who communicated with her".
A similar result was found in R. v. Multani, 2002 BCSC 68
where a police officer pulled over a van for failing to
stop at a yellow light contrary to the Motor Vehicle Act
21

18

At p.333.
19
See also R. v. Feeney (1999) Docket CC980028 (B.C.S.C.) per Oppal J. at para. 60.
20
A position adopted in R. v. Nicholson (1999) Docket X049016 (B.C.S.C.) in which a
photograph that was taken of an arrested but not yet charged person and used in a
photo lineup was ruled inadmissible.

Volume 2 Issue 8
August 2002

On this point the court found "in this circumstance, a photograph taken without
consent of the person detained, if it is a seizure at all, is a reasonable seizure".
22
The accused urged the court to find the right to consult counsel and to act upon
that advice is rendered meaningless unless an accused is separately warned of the
intention to take a photograph and is allowed to consult counsel before that
occurs.

8

(MVA). Following a request by the officer, the accused
provided the vehicle’s insurance but was unable to
produce his driver’s licence. After obtaining the driver’s
name, address and date of birth, the officer returned to
his patrol car to get his Polaroid camera. The officer
approached the accused, told the accused to look at him,
and took a picture. The officer printed the driver’s name
and the violation ticket number on the bottom of the
photo. The officer testified that people who have failed
to produce driver’s licences in the past have given false
names and to properly identify drivers he carries a
Polaroid camera to take a photo of the driver to keep
with his notes. After the photograph was taken the
officer learned the accused was a prohibited driver
under the MVA. The photograph was not published or
circulated. The accused was convicted at trial of
prohibited driving and appealed to the Supreme Court of
British Columbia arguing, among other grounds, that the
trial judge erred in concluding the taking of the
photograph did not violate the accused’s right to be
secure against unreasonable search or seizure.
After reviewing numerous cases concerning the taking of
photographs, the appeal Court found that the accused
was not charged with an indictable offence and
therefore the ICA did not justify the taking of the
photograph. However, in recognizing that not every
person investigated will be charged and that “proper
identification evidence assists in identifying the innocent
as well as the guilty”, there was “no reason to infer from
the [ICA], that parliament meant to abolish
photographing of suspects as an investigative tool in
summary conviction cases”. In finding the taking of the
photograph reasonable, Curtis J. held, at para. 23:

applicable. There has been no unreasonable search and
seizure, and the photograph is properly admissible.

In R. v. Giang [1994] B.C.J. No. 3154 (B.C.S.C.), the
police arrested seven persons involved in a home
invasion style robbery. The accused were transported
to the police department and placed in a holding cell.
Each accused was individually removed from the holding
cell, directed to stand against a measuring tape affixed
to the wall, and their photograph was taken by use of a
Polaroid camera. The accused's names and date of
births were then recorded at the bottom of the
photographs. One of the officers who took the
photographs then made photocopies and distributed
the copies to most of the other officers who had
participated in the arrest23. During the interview of
the complainants, the police used the photographs
taken of the accused to explain the role of each
accused. The accused challenged the admissibility of
and any evidence derived from the use of the
photographs. The Court found the photographs to be
admissible for the following reasons:
photographs can be used to refresh a witness's
memory of a past recollection recorded provided the
record was made and verified at the time the
witness's memory was fresh;
the photographs shown to the witness were not
shown for the purpose of acquiring evidence of
whether the accused was involved in the commission
of the offence (ie. photo line-up), but for the
purpose of explaining what role the accused played
in the commission of the offence; and
the photographs, like a notebook is used to record
observations, are a method of recording the details
of the appearance of the accused at the time of
their arrests.

When [the officer] observed [the accused] at the scene it
was his duty to identify him properly, and in the course of
doing so to make and record accurate evidence of identity.
In the course of doing so, he could make notes of his
observations, and he could have made a sketch in his
notes had he chosen to do so. Generally, a photograph will
provide evidence that is more reliable than notes or
sketches. Because traffic enforcement officers had
frequently experienced drivers unable to produce
driver's licences, giving false names, [the officer] and
others had adopted a practice of taking Polaroid pictures
which they did not publish, but kept solely for the
purpose of their own notes. As this case does not come
within the ambit of the Identification of Criminals Act, I
find it to be distinguishable from the cases to which that
Act applies. In those circumstances, I find the reasoning
of the B.C. Court of Appeal in the R. v. Dilling case is

Volume 2 Issue 8
August 2002

In summary, photographs taken by police following
arrest only to assist in later identification is not a
violation of any Charter rights of an accused24.
It is important to note that neither the Dilling, Giang , or
Multani decision dealt with the application of physical
force on the person who was being photographed. Such
procedures must be resorted to with caution.
Photographs taken for the purpose of evidence at trial,
for example showing the appearance of the accused at
23

Some of the police officers were given colour photocopies to replace the earlier
black and white photocopies that they had been given.
24
See R. v. Fitzsimons [1998] B.C.J. No.3160 (B.C.S.C.).

9

the time of arrest25 may also, depending on the
circumstances in which they were taken be admissible.

CONSENT
A person may consent to the taking of their fingerprints
and/or photographs that may assist the police and which
may ultimately provide evidence against them at their
trial. For example, it is not uncommon for police to
voluntarily request fingerprints from the occupants of a
home who have been the victim of a break and enter.
When fingerprints are obtained from a crime scene,
these unknown prints are compared with the known
prints (occupants) as a process of elimination. The
remaining unknown prints are then submitted for a
computerized search. Likewise, a person of interest or a
suspect may provide their fingerprints or photographs
voluntarily to the police.
However, there are important rules to consider. For
consent to be valid it must be "informed consent". The
meaning of informed consent has a two-limb approach26.
Firstly, the consent must be voluntary, which includes an
awareness of the right to refuse. Consent elicited under
threat or compulsion cannot be regarded as valid27.
Secondly, the person consenting to the search must be
aware of the consequences of consenting. The police
must disclose their anticipated purpose(s)28 for the use
of the fingerprints or photographs at the time the
consent was given. However, "if neither the police nor
the consenting person limit the use which may be made
of the evidence then, as a general rule, no limitation or
restriction should be placed on the use of that
evidence29".

PUBLIC PLACES
The police may make appropriate efforts to obtain
photographs of a person without their consent in public
places provided no physical compulsion is involved and the
methods employed are non-intrusive and without
trespass or other improper means30.

25

See footnote 24.
See R. v. Head (1994) 52 B.C.A.C. 121 (B.C.C.A.) and R. v. Kennedy 2000 BCCA
362.
27
See R. v. Nielsen and Stolar (1984) 16 C.C.C. (3d) 39 (Man.C.A.) per Huband J.A.
leave to appeal on Nielsen to S.C.C. refused, Stolar reversed on other grounds
(1988) 40 C.C.C. (3d) 1 (S.C.C.)
28
See R. v. Arp [1998] 3 S.C.R. 339 (S.C.C.) at para. 88.
29
See R. v. Arp [1998] 3 S.C.R. 339 (S.C.C.) at para. 87.
30
See R. v. Shortreed (1990) 54 C.C.C. (3d) 292 (Ont.C.A.)
26

Volume 2 Issue 8
August 2002

FINGERPRINT WARRANT
Section 487.091 of the Criminal Code provides statutory
authority for the police to obtain bodily prints or
impressions, including a fingerprint or handprint, from a
person following the issuance of a warrant by a justice.
This section requires the justice being satisfied by
information on oath that:
•

there are reasonable grounds to believe a federal
(criminal offence) has been committed;

•

there are reasonable grounds to believe information
concerning the offence will be
obtained by the print or impression;
and

•

that it is in the best interests of
the administration of justice to
issue the warrant.

CLASS 87 GRADUATES
The Police Academy is pleased to
announce the successful graduation of
recruit Class 87 as qualified municipal
constables on July 26, 2002.

ABBOTSFORD
Cst. Doug Moore
DELTA
Cst. Clayton Ennis
Cst. Brian Hill
Cst. Paul Hykaway
Cst. Mark McKinnell
Cst. Allan West
NEW WESTMINSTER
Cst. Shawn Machesney
Cst. Mario Mastropieri
Cst. Roger Rempel
WEST VANCOUVER
Cst. Trevor Griffith
Cst. Erin Hogeweide
Cst. Grant Kinney
Cst. Brian Taguiam
Cst. Lisa Wanless

VANCOUVER
Cst. Joel Admana
Cst. Andrea Anderson Cst.
Jitender Aujla
Cst. Michael Fealing
Cst. Stephen Fraser
Cst. Terri-Lynn George
Cst. Cameron Hemphill
Cst. Colin Imai
Cst. Richard Jarvis
Cst. Tanya Le Boutillier
Cst. John Pyper
Cst. Giusseppe Raffele
Cst. Holly Stefonovich
Cst. Amber Van Hove
Cst. Ryan Wray
VICTORIA
Cst. Allison Johnson

10

Congratulations to Cst. Doug Moore
(Abbotsford), who was the recipient of
the British Columbia Association of
Chiefs of Police Shield of Merit for best
all around recruit performance in basic
training. Cst. Doug Moore (Abbotsford)
also received the Abbotsford Police Association Oliver
Thomson Trophy for outstanding physical fitness. Cst.
Cameron Hemphill (Vancouver) received the Vancouver
Police Union Excellence in Academics award for best
academic test results in all disciplines. Cst. Roger Rempel
(New Westminster) received the British Columbia
Federation of Police Officers Valedictorian award for
being selected by his peers to represent his class at the
graduation ceremony. Cst. Clayton Ennis (Delta) and Cst.
Cameron Hemphill (Vancouver) were the recipients of
the Abbotsford Police Recruit Marksmanship award for
highest qualification score during Block 3 training
(49/50). The Honourable Mr. Justice Wallace Oppal of
the Supreme Court of British Columbia was the keynote
speaker at the ceremony.

ONGOING PRIVACY INTEREST
IN FINGERPRINTS
R. v. Dore,
(2002) Docket:C29634 (OntCA)
The accused was arrested and
charged with two Criminal Code
offences and the provincial offence
of driving without insurance arising
from an incident involving a stolen
license validation sticker. As a consequence, the
accused was fingerprinted and photographed pursuant
to s.2(1) of the Identification of Criminals Act on the
two Criminal Code offences. All three charges were
subsequently withdrawn and the accused pled guilty to
two provincial offences (driving without insurance and
use of unauthorized validation sticker) on a new
information. The fingerprints arising from the
withdrawn charges were not destroyed and were
retained in a police databank.
Several months later, a 17-year-old female victim
reported she had been sexually assaulted in the
stairwell of her apartment building. Police located
three fingerprints on the railing where the victim said
the assault occurred, which were matched to the
accused’s prints through AFIS (Automated Fingerprint
Identification System). At trial, the accused was
convicted of sexual assault with a weapon, assault with

Volume 2 Issue 8
August 2002

a weapon, forcible confinement, and uttering a death
threat. The accused appealed his conviction to the
Ontario Court of Appeal arguing, in part, that the
retention of his fingerprints by the police following the
withdrawal of the criminal charges violated his s.8
Charter right to be secure against unreasonable search
and seizure and that the evidence of the fingerprint
match was inadmissible under s.24(2).
Section 8 of the Charter protects a person’s
reasonable expectation of privacy and their right to be
left alone by the state. In assessing whether the
continued retention in the fingerprints following the
withdrawing of charges was unconstitutional, two
approaches were analyzed. First, if the prints were
lawfully taken, did the person have a continuing privacy
interest in the prints beyond the initial seizure? And
second, did the retention of the prints become
unconstitutional when the precondition for their taking
(charge) was no longer present (as a result of an
acquittal, withdrawal of charges, permanent stay of
proceedings)?
The accused argued that he retained a privacy interest
in the information contained in his fingerprints and,
once the charge had been disposed of in his favour, he
regained the same privacy interest as a person who had
never been charged. On the other hand, the Crown
submitted that once the prints had been lawfully taken,
the accused no longer had a reasonable expectation of
privacy or, at the most, a very minimal expectation. The
Ontario Court of Appeal noted two aspects surrounding
a “seizure” of fingerprints:
1.

physical: “the actual physical act of taking the
impression of the fingers, including the physical
and psychological indignity involved in the process”;
and

2.

informational: “the acquisition by the state of the
informational component of the fingerprint, its
unique characteristics and identifying relationship
to the particular individual”.

When fingerprints are lawfully taken, retention and use
of the informational component continues as long as the
charge remains outstanding or a conviction has been
registered. On the other hand, a person who was
fingerprinted on arrest and had the charges disposed
of in their favour will have the same expectation of
privacy as a person who had never been charged.
However, the ongoing retention of fingerprints does
not automatically become unconstitutional when charges

11

are disposed of in the accused’s favour. The person’s
right to be left alone by the state will only be
triggered if and only when they ask for their prints to
be returned or destroyed unless the police can
demonstrate in special circumstances why further
retention outweighs the persons privacy interest.
Moreover, there is no constitutional duty on the police
to advise the person that they may apply to have their
prints destroyed, although it would be helpful and
appropriate. The accused is in the best position to know
of the outcome of the charges and can access this
information through their counsel. Furthermore, a
person who already has their fingerprints retained and
stored as a result of other convictions or outstanding
charges cannot claim a reasonable expectation of
privacy since there would be “no constitutional
significance” in their retention following a favourable
disposition on another charge.
In this case, because the accused did not request the
destruction of his fingerprints, their retention did not
violate s.8 of the Charter. Thus, the evidence was
admissible.
Complete case available at www.ontariocourts.on.ca

CONFRONTING SUSPECT
WITH EVIDENCE: FUNCTIONAL
EQUIVALENT OF AN
INTERROGATION
R. v. McKenzie,
(2002) Docket: C33215 (OntCA)
Following the arrest of the accused
for murder and the advising of his
right to counsel, he told the
investigating police detectives he
wanted to contact a local criminal
lawyer. He was transported to the police station and 20
minutes later he was taken to an interview room,
equipped with video recording equipment, where he
stated, “I want my lawyer”. He was told to sit down and
identify himself and explained the interview was being
audio and video recorded and again was informed of his
right to counsel. The accused again asked for his lawyer
and was escorted to a phone where he left a message
after being unsuccessful in speaking to him. He was
taken back to the interview room, cautioned regarding
statements, and he advised the police that he had
nothing to say. When asked if he wanted to make a

Volume 2 Issue 8
August 2002

statement the accused informed the officers that he
wanted to speak to his lawyer.
An undercover officer to whom the accused had earlier
confessed was brought into the room and advised the
accused he was a police officer, told him to take care
of himself, and left. A detective then played a portion
of the taped conversation between the accused and the
undercover officer where he admitted killing the
victim. After listening for 6 minutes, the accused got
up and asked to be taken back to cells. He was told to
sit down and while the detectives were completing their
notes he stated he had “sunk himself” and “might as
well start doing [his] 25 now”. The accused was taken
from the interview room and while in the elevator
enroute to cells stated, “I’ll be 59”, which was taken to
mean he would be 59 years old before being released
from jail. Later in the cell area he said, “He got me
drunk, he got me totalled” and “at least I can enjoy a
good sleep now”.
At trial, the accused unsuccessfully attempted to have
the remarks at the end of the interview, in the
elevator, and in the cell area excluded as a breach of
his s.10(b) Charter rights. He argued that he had not
been provided a reasonable opportunity to contact
counsel when the police elicited these statements from
him. The trial judge concluded that although an accused
must have access to counsel “before he is questioned or
otherwise required to provide evidence”, in this case
the accused was not being questioned. The police simply
exposed their case to him and he chose to freely make
the statements. The accused appealed to Ontario’s top
court.

Was the Statement Elicited?
The right to counsel places a duty on the police to
cease questioning or otherwise attempting to elicit
evidence from a detainee who asserts their right to
counsel until they have been afforded a reasonable
opportunity to consult with a lawyer. The right is more
than simply being afforded an opportunity to place a
telephone call but requires speaking with a lawyer or at
minimum, being given a reasonable opportunity to do so.
Although the accused was allowed to use a phone, he
did not speak to a lawyer nor was he given a reasonable
opportunity to do so before being confronted with the
taped confession. Even though no direct questions were
posed to him, the conduct of the police amounted to
the “functional equivalent of an interrogation”.
Furthermore, since the accused did not speak to a
lawyer and obtain advice about his rights and various

12

police conduct he should be cautious of, the police were
able to manipulate him into a mental state in which he
was more likely to talk. In summary, there was a causal
link between the police conduct and the making of the
statements such that they were “elicited” and since the
accused was not provided a reasonable opportunity to
consult counsel, his s.10(b) Charter right had been
violated. Since the statements were conscriptive and
their admission would render the trial unfair, they were
excluded under s.24(2) of the Charter. Not satisfied
that a jury would necessarily convict had the impugned
statements been excluded despite there being a very
strong case against the accused, the Ontario Court of
Appeal quashed the conviction and ordered a new trial.
Complete case available at www.ontariocourts.on.ca

Note-able Quote

“For the police, justice and equality are ideally
inseparable. Thus, they must act impartially in terms
of the decision to make an arrest and in terms of the
ensuing treatment given an individual during the arrest
process. Beyond the legal and philosophical basis for
equality is the professional ethic which calls for
universality of treatment31”. James W. Sterling

WEAPONS WARRANT SEARCH
UNCONSTITUTIONAL
R. v. Hurrell,
(2002) Coket:C36968 (OntCA)
The police applied for and were
granted a search warrant under
s.117.04(1) of the Criminal Code
which reads as follows
s.117.04(1) Criminal Code
Where, pursuant to an application made by a peace officer
with respect to any person, a justice is satisfied that there
are reasonable grounds to believe that it is not desirable in
the interests of the safety of the person, or of any other
person, for the person to possess any weapon, prohibited
device, ammunition, prohibited ammunition or explosive
substance, the justice may issue a warrant authorizing a peace
officer to search for and seize any such thing, and any
authorization, licence or registration certificate relating to
any such thing, that is held by or in the possession of the
person.

This section is not an offence based provision involving
the search for evidence to prove that an offence has

31

(1972) Change in Role Concepts of Police Officers; Professional Standards
Division of the International Association of Chiefs of Police.

Volume 2 Issue 8
August 2002

been or is being committed, but a preventative search
authority designed to prevent serious injury and death
from the use of firearms and other dangerous objects.
As a result, the police entered the accused’s home and
seized 12 firearms, 2 cross bows, 11 containers of
ammunition, and his firearms acquisition certificate.
Under s.111(1) of the Code, the police made an
application for an order prohibiting the accused from
possessing firearms and other specified items. The
accused made an unsuccessful application to the
Ontario Superior Court of Justice seeking a declaration
that s.117.04(1) was unconstitutional and could not be
saved by s.1 of the Charter. Further, the accused
sought an order quashing the warrant and the return of
all the seized items. The accused appealed to the
Ontario Court of Appeal arguing, among other grounds,
that the section does not require that the justice be
satisfied there are reasonable grounds to believe the
weapons will be found at the place to be searched.

Reasonable Grounds
Moldover J.A., for a unanimous Ontario Court of
Appeal, found that s. 117.04(1) does not require that
the police officer seeking the warrant have reasonable
grounds to believe that weapons or other items sought
are likely to be found on the person or premises to be
searched. Although the officer requires reasonable
grounds to believe it is “not desirable” (or “not
advisable”, which “envisages an identifiable threat of
serious or significant harm likely to be caused by
firearms or other dangerous objects to the safety of
specified individuals”), in the interests of public safety
for a person to possess the weapon, it does not require
reasonable grounds to believe the person possesses
such a weapon. This deficiency makes the section
incurably overly broad and permits the police to
undergo fishing expeditions by invading a person’s
privacy when they have no reason to believe or suspect
that the person has weapons in their possession. To
this end the provision is unconstitutional and cannot be
saved by s.1 of the Charter.
In finding that s.117.04(1) was in need of a
“constitutional overhaul”, the Court of Appeal
suspended its’ declaration of invalidity for six months
to give Parliament the opportunity to amend the
legislation in compliance with the Charter. In the
meanwhile, any warrants issued within the six-month
exemption period should be in compliance with the
Attorney General’s draft legislation presented during
argument, which read as follows:

13

s.117.04(1) Criminal Code: Attorney General’s Draft Legislation
Where, pursuant to an application made by a peace officer
with respect to any person, a justice is satisfied by
information on oath that there are reasonable grounds to
believe that the person possesses a weapon, prohibited device,
ammunition, prohibited ammunition or explosive device in a
building, receptacle or place, and that it is not desirable in the
interests of the safety of the person, or of any other person,
for the person to possess the weapon, prohibited device,
ammunition, prohibited ammunition or explosive substance, the
justice may issue a warrant authorizing a peace officer to
search the building, receptacle or place and seize any such
thing, and any authorization, licence or registration certificate
relating to any such thing, that is held by or in the possession
of the person.

The Court also quashed the warrant and ordered the
return of the items seized from the accused’s home.
Once the items were returned, the Court suggested
that the police may make a demand under s.117.03(1) of
the Code requiring the accused produce the necessary
documents for inspection and seize any items illegally
possessed or seek a fresh warrant under the reworded s.117.04(1).
Editor’s Comments: The warrantless search provisions
of s.117.04(2) of the Code are inextricably linked to
s.117.04(1). For the police to search and seize without a
warrant under s.117.04(2), the pre-conditions of
s.117.04(1)
must
be
satisfied
and
warrant
impracticability (exigent circumstances) must exist.
Thus, the proposed wording must also be read in
conjunction with s.117.04(2) if an officer utilizes the
warrantless search provision.
Complete case available at www.ontariocourts.on.ca

INVESTIGATIVE NECESSITY:
LAST RESORT REQUIREMENT?
R. v. Holtam, 2002 BCCA 339
The police were called to a home
after a neighbour, who had gone to
check on the occupants, found the
premises in darkness, the front door
unlocked, and the resident mother
and her young 6-year-old daughter seriously injured
inside the house. The responding officers located the
daughter in the living room area and the mother in a
bed in a nearby room, both grievously wounded and
later pronounced dead. During a further search of the
home, an officer discovered an 8-year-old boy with
serious head wounds in a semi-conscious condition in
the stairwell going up to his bedroom. No signs of

Volume 2 Issue 8
August 2002

forced entry or burglary were detected and since the
premise was in darkness, it could be inferred that the
attacker was familiar with the layout of the home. The
accused, who was the husband and father of the
deceased, was not at home and the only member of the
family not yet accounted for.
The police subsequently learned from a neighbour that
the accused’s vehicle had been parked at the house
about 7 am, which was unusual because he usually left
for work at an earlier time (6:30 am). An officer called
the accused at his workplace and, pretending that he
was investigating a driving complaint, was told by the
accused that he left home at about 6:30 am. The police
attended the accused’s workplace, arrested him, and
seized his clothing and letters found in his wallet from
a woman indicating he was having an affair. The accused
was released shortly thereafter, as the police did not
think they had sufficient evidence to lay a charge.
Later, as a result of an undercover operation, the police
surreptitiously audio and video recorded a conversation
at a hotel room where the accused confessed to the
murders. A DNA examination of the accused’s clothing
found blood traces from the children on his shirt and
shoe seized at the time of his arrest. Blood splatter
patterns on the accused’s shirt were also consistent
with the downward swinging of a weapon. The accused
was convicted by a jury of two first degree murder
counts and one count of attempted murder. The
accused appealed to the British Columbia Court of
Appeal arguing, in part, that the trial judge erred in
admitting the items seized from the accused at the
time of his initial arrest as well as the taped
conversation.

Reasonable Grounds and the Seizure
The accused submitted that the police did not have
reasonable grounds to arrest him, thus the seizure of
the clothing and letters were not proper as an incident
to arrest. During the trial, the court concluded the
officer had reasonable grounds, subjectively held and
objectively supportable, to make the arrest. Although
the statement made to the officer over the telephone
about the time he left the residence (which provided a
time discrepancy as to the accused’s departure) was
ruled inadmissible, the circumstances surrounding the
discovery of a “fresh” scene where a brutal and serious
crime took place at a residence where the police knew
the accused lived and from which the accused was
absent were sufficient to meet the reasonable belief
standard. The proper test for reasonable grounds is

14

whether “a reasonable person placed in the position of
the officer [is] able to conclude that there were indeed
reasonable…grounds for the arrest”. Hall J.A., for the
unanimous appeal court, found the trial judge applied
the proper test. Since the arrest was lawful, “the
police were entitled to seize the items they did from
the [accused] at the time of his arrest including the
clothing, which later furnished DNA evidence and the
letters…, which were relied upon by the Crown as
disclosing a motive for the crimes”. As the police were
“acting legitimately in seeking to discover possible
evidence linking the [accused] to the crimes”, they
were properly searching within the scope permissible as
an incident to lawful arrest.

The Taped Conversation
The accused challenged the admissibility of the
intercepted conversation between him and the
undercover officer, surreptitiously recorded at the
hotel room under judicial authorization, by contending
that the requirement of investigative necessity was not
properly demonstrated as required by s.186(1)(b) of
the Criminal Code. Although the trial judge had
concerns about the lack of progress in the
investigation, such as the delay in submitting the
exhibits for DNA testing, he nonetheless concluded
that the police “do not have to exhaust all other forms
of investigations before embarking upon an application”
and ruled the conversation admissible. In upholding the
trial judge’s decision, Hall J.A. found that
“investigative necessity” test is not investigative “last
resort”, but rather a “no other reasonable alternative
method of investigation”32 enquiry.
In this case, at the time of the intercept application
neither the accused nor his mistress were going to
cooperate with the police and even if they had the DNA
evidence on the accused’s clothes prior to the
intercept, there may be other reasons why it would be
there since the crime occurred in a family setting.
Moreover, the police were concurrently relying on
warrants issued under ss.487.01 (general warrant) and
184.2 (one party consent) of the Code, which also
provided a proper basis for the admission of the
evidence. The accused’s appeal was dismissed and the
conviction upheld.
Complete case available at www.courts.gov.bc.ca

32

The Court adopted the test from R. v. Araujo, (1998) 127 S.C.C. (3d) 315 (S.C.C.)

Volume 2 Issue 8
August 2002

WARRANTLESS ENTRY TO
PROTECT LIFE REASONABLE
R. v. Jamieson, 2002 BCCA 411
A municipal police agency responded
to a 911 call of a man running from a
house suffering from grievous acid
burns to his face and body. The
police, who were familiar with the
victim, had information that suggested there may be
dangerous chemicals from a clandestine drug lab inside
the house. He had ordered and picked up chemicals
consistent with the manufacture of amphetamines in
the months prior and had been twice found in
possession of items the police suspected were related
to the manufacture of drugs. The police also had
information that the victim had acid thrown at him
while inside the house. Further, the police received
information that a distraught young woman also came
from the home and was repeatedly asking if the police
found “Jessica”. The police placed a call to the
residence but there was no answer from inside, no
movement was heard or seen, and no one answered the
door after repeated knocking.
The municipal police contacted the RCMP, whom they
relied upon for expertise in situations involving the
investigation and dismantling of clandestine drug labs.
Three officers entered the home without a warrant 2 ½
hours after the 911 call to look for suspects and/or
victims, injured or dead. They were only in the premises
for 10 to 15 minutes, opening doors and windows but
had an opportunity to observe equipment used in the
manufacture of drugs. Because the officers had not
checked whether the heating and cooling apparatuses
were operational, an officer re-entered to ensure the
lab was not cooking. The following day, the police
obtained a search warrant in connection with the
aggravated assault and production of a controlled
substance.
The trial judge concluded that the police had
reasonable grounds to believe that other persons might
be in the residence and had a duty to ensure the
persons inside and in the vicinity of the house were
safe by entering it. He found that the officers’ primary
motive for entering was to protect public safety, not to
investigate. The police were justified in entering the
residence because there “were exigent circumstances”
and “the police had an obligation to act decisively and
out of a concern for the safety of individuals who

15

might be in the home and for the safety of individuals
in the immediate vicinity”. The accused appealed to the
British Columbia Court of Appeal.

Warrantless Entry
Although the accused agreed that the police entered in
the performance of their duties, he argued that the
police entered primarily to investigate drug offences,
and not for the purpose of protecting the public. He
suggested that the time between the 911 call and police
entry (2 ½ hours), the failure of the police to use the
fire department for entry, and an officer’s admission
that he did not have reasonable grounds prior to the
entry to obtain a warrant was demonstrative of the
investigative nature of the motive. Furthermore, the
information the police relied upon to obtain the warrant
was acquired during the warrantless and unreasonable
entry and thus the warrant should be ruled invalid.
In unanimously dismissing the appeal, Saunders J.A.
for the British Columbia Court of Appeal concluded
that the warrantless search of the home was prima
facie unreasonable and the Crown bears the burden of
rebutting the presumption. If the search was
conducted for the purpose of investigating crime, the
criteria necessary for a search warrant must be
satisfied. In this case however, the police were acting
in the performance of their duty to protect public
safety and the admissibility of the evidence hinged on a
two-stage inquiry:
1.

2.

Did the police conduct fall within the general scope
of any duty imposed by statute or recognized at
common law? The RCMP Act, which was binding on
the responding RCMP officers, and the Police Act,
which was binding on the municipal officers, both
imposed a statutory duty on the police to protect
life. Further, under the common law the police have
a general duty to protect life, which is not limited
to protecting the lives of victims of crime.
If the answer to question 1 is yes, did the police
conduct involve an unjustifiable use of powers
associated with the duty? In finding that the
police were justified in entering without a warrant,
Saunders J.A. stated:
The level of danger suspected was high and was
associated to the various rooms of the residence so
that examination of one room only was not a viable
response to the concern. There was no practical way to
determine whether a lab was cooking or others were in
the house injured other than by entering. It was known
that one person in the house had already suffered

Volume 2 Issue 8
August 2002

grievous injuries to his face and head through contact
with a highly caustic substance. The duty pursued was
the protection of others. The purpose of the first
entry was to look for “bodies” and was of limited
duration.
Notwithstanding the [accused’s] privacy interest in the
residence, …the law permitted the police to enter the
home, provided the entry was no more extensive than
required to ensure safety. In this case the entry was
of limited duration, considering the deliberation
required to avoid chemical accident. I conclude that
there was strong and persuasive evidence…the
entry…was legally justified in the circumstances, and
thus not an unreasonable search within the meaning of
s.8 of the Charter.

Not Using the Fire Department
The Court found the RCMP personnel were specially
trained to deal with clandestine labs and associated
dangerous materials and persons entering the premises
were required to have such training.

The Delay
Although an excessive delay could support the view
that entry was made for an investigative purpose, the
delay was reasonably explained by the time required
for the specially trained officers to be contacted at
their home, travel to their work place to obtain the
necessary protective equipment, travel to the accused’s
home, and gear up. This was all done to enter a
suspected chemical laboratory where one person had
already been seriously injured by a caustic substance.

Absence of a Warrant
Even though the police may have had time to obtain a
telewarrant, it is an investigative tool directed towards
the crime prevention aspect of police duties and
requires reasonable grounds. However, the duty of the
police to protect life and property does not depend
upon establishing reasonable grounds to obtain a search
warrant. The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“…I have seen competent leaders who stood in front of

a platoon and all they saw was the platoon. But great
leaders stand in front of a platoon and see 44
individuals, each of whom has aspirations, each of whom
wants to live, each of whom wants to do good”. General
H. Norman Schwarzkopf

16

POLICE PROACTIVENESS &
DETAINEE DILIGENCE
R. v. Anane,
(2002) Court File No. 183/01 (OntSCJ)
The accused failed a roadside
screening test after a police officer
found him trying to change the flat
tire of his vehicle. The accused
admitted being the driver, was
having difficulty changing the tire, and the officer
detected a strong smell of liquor on his breath. The
officer then read the accused his right to counsel. The
accused acknowledged he understood but did not
respond as to whether he wished to call a lawyer. The
accused was then transported to the police detachment
where he was asked to read a notice of the right to
counsel posted on the wall of the cell area. He again
acknowledged that he understood his rights but when
asked if he wished to contact counsel, he responded “I
don’t know the number to my lawyer”. When offered
legal aid duty counsel, the accused stated he did not
wish to speak to duty counsel “right now”. The accused
was told he would be released that day if there was
“nothing else”. Prior to the breath samples, the
intoxilyzer technician also advised the accused of his
right to counsel and asked him if he wished to contact a
lawyer. The accused replied “no” and when asked if he
was sure replied, “Yes, I don’t want a lawyer”. The
accused subsequently provided two breath samples of
144mg% and 143mg% respectively.
The accused argued that his right to counsel under
s.10(b) of the Charter had been violated. He testified
that when he stated he did not know his lawyer’s
number he did want to speak to him. However, he did
not name his lawyer or ask for a telephone book
because the officer didn’t give him the opportunity
when
he
immediately
offered
duty
counsel.
Furthermore, when the technician offered him the
chance to speak with a lawyer he thought, as a result of
his contact with the investigating officer, that he did
not have the option because nothing had been done for
him to get in contact with his lawyer when he said he
did not know his lawyer’s number.
In convicting the accused of care and control over
80mg%, the trial judge found that the accused’s s.10(b)
right had not been violated and that the accused’s
primary concern was being released. Once he knew he
was likely to be released, the trial judge found the

Volume 2 Issue 8
August 2002

accused lost interest in contacting a lawyer. Although
the police could have done more to help the accused, he
himself should have been “a bit more proactive”. The
accused appealed to the Ontario Superior Court of
Justice. Dambrot J. agreed with the trial judge that
the police should have asked the accused if he wanted
to use a telephone book or other assistance before
immediately offering duty counsel:
It is beyond dispute that a police officer who arrests an
accused must comply with both the informational and the
implementational components of the right to counsel
guaranteed by s. 10(b) of the Charter. When an accused
requests the assistance of counsel, it is incumbent on the
police officer, as part of the obligation to comply with
the implementational component of s. 10(b), to facilitate
contact with counsel…Where a request is made to contact
counsel, the police are obliged to provide the means for
doing so. They must provide access to a telephone, in
conditions of privacy, and a telephone book, or other
similar assistance, where necessary…(references omitted)

If the accused had provided breath samples at this
point, his s.10(b) right would have been violated.
However, the officer held off questioning or taking
samples (not out of respect for the accused’s rights -but done nonetheless) and presented the accused to
the intoxilyzer technician who again advised him of his
right to counsel. The accused did not want to speak to a
lawyer and did not ask for assistance in obtaining the
number. The technician cured the investigating
officer’s error and the accused was not diligent in
exercising his rights, which suspended the police
obligation to hold off and facilitate counsel. In this
case, “police proactiveness and detainee diligence”
weighed out equally and there was no violation of the
accused’s s.10(b) Charter right. The appeal was
dismissed.

LEGAL LAUGHS
The day after his client was found
guilty, lawyer Thompson rushed into
court jubilantly waving a thick sheaf
of papers. “Your Honour, Your
Honour,” he cried. “I’ve just uncovered
new evidence that requires reopening my client’s case.”
The judge stared at the lawyer. “New evidence?” the
judge inquired. “What sort of evidence?” “My client has
an extra $10,000, and I only found out about it
today!”33

33

Source: Behrman, Sid. (1991). The Lawyer Joke Book. Dorset Press: New York,
NY.

17

ROADSIDE TEST USED TO
CONFIRM, RATHER THAN
FORM, OFFICER’s BELIEF
R. v. Bennett, 2002 ABQB 625
A police officer stopped the accused
after he was observed drive into a
parking lot at an excessive speed,
make a sudden, wide irregular uturn, and park in front of a grocery
store. Upon exiting his vehicle, the accused immediately
relinquished his car keys to the officer. After
surrendering his driver’s licence, credit card, and
Costco card to the officer, the accused was convinced
he had misplaced his licence. The officer noted an
odour of liquor on the accused’s breath, slurred speech,
and bloodshot eyes. After reading the roadside
screening demand, the accused provided a sample of his
breath and failed. This confirmed the officer’s opinion
that the accused was impaired and also indicated that
the accused’s BAC was at least 100mg%. A subsequent
intoxilyzer test resulted in two samples being taken
which exceeded the legal limit.
At trial, the accused was acquitted of both impaired
driving and over 80mg%. Although he did not make any
notes, the officer testified his standard procedure was
to allow a 20 minute time lapse if he had reason to
believe that a driver had recently consumed alcohol. He
testified that by administering the test he therefore
had no reason to be concerned. The accused testified
that he had been drinking two minutes before his
encounter with the police, which resulted in an
unreliable roadside fail reading. Thus, the officer
lacked reasonable and probable grounds to give the
breath demand. As a consequence, the breath demand
violated the accused’s rights under s.8 of the Charter
and the Certificate of Analysis was excluded under
s.24(2). The Crown appealed to the Alberta Court of
Queen’s Bench arguing that the trial judge applied the
wrong test in determining whether there was a breach
of the accused’s s.8 rights.

Reasonable Grounds
Section 8 of the Charter protects a person from
unreasonable search or seizure, which includes the
taking of breath samples pursuant to the demand of a
police officer. However, s.254(3) of the Criminal Code
permits the lawful taking of breath samples where the

Volume 2 Issue 8
August 2002

police officer has reasonable and probable grounds to
believe that a person has committed an offence under
s.253 of the Code (impaired driving/over 80mg%).
Reasonable grounds under this section requires “that
the police officer subjectively have an honest belief
that the suspect committed the offence” and,
objectively, there must exist reasonable grounds for
this belief. Furthermore, the “existence of reasonable
and probable grounds must be based upon facts known
by or available to the peace officer at the time [they]
formed the requisite belief”. The assessment is not one
of approaching the evidence in “a piecemeal fashion” or
by testing “individual pieces of evidence that support
the presence of reasonable grounds”, but by answering
the question, “does the totality of the evidence
available to the peace officer at the time [they]
formed the belief support an objective finding that
[they] had reasonable and probable grounds to believe
the ability of the driver was impaired by alcohol”.
In this case, there was no evidence that the roadside
test was inaccurate or unreliable. The trial judge did
not take issue with the credibility of the officer but
second-guessed his testimony concerning reasonable
grounds and speculated that the roadside test was
unreliable. Alberta Court of Queen’s bench Justice
Kenny held that “there is no legislated or common law
duty on the officer to inquire when the driver last
consumed alcohol” unless there was evidence that would
indicate this to be the case. The trial judge solely
focused his doubt on the reliability of the test without
considering the whole of the evidence; this was an
error in law. Even apart from the roadside test, there
existed substantial evidence of impairment that would
support subjective reasonable and probable grounds
while objectively, a reasonable person placed in the
position of the officer would be able to conclude that
reasonable and probable grounds existed. The
“roadside test merely confirmed, rather than formed”,
the officer’s belief.
Since reasonable and probable grounds existed for the
demand, the accused’s rights under s.8 were not
violated. The acquittal was set aside and a new trial was
ordered.
Complete case available at www.albertacourts.ab.ca

Note-able Quote
“If you don’t stand for something, you’ll fall for
anything”. Don Shula

18

CONTINUED IMPAIRED ARREST
ARBITARY: CHARGES STAYED

CAT LEADS COPS TO
GROW-OP

R. v. Paquette, 2002 SKPC 18

R. v. Erickson, 2002 BCSC 785

A police officer stopped the accused
to confirm whether he was wearing a
seatbelt and formed the opinion the
accused was impaired. The accused
admitted to having a “few drinks”
and the officer noted a smell of liquor on the accused’s
breath, that his eyes were glossy, and that his speech
was slurred. The accused subsequently provided two
breath samples of 170mg% and 160mg%. Fifteen
minutes after the breathalyser tests the accused was
lodged in cells. Although he did not recall what
condition the accused was in, the senior officer on duty
(who was also the breathalyser technician) testified he
detained the accused because of the readings and that
he, and the only other officer on duty at the time, had
to resume patrol duties and could not drive the accused
home, nor could they wait for someone to pick him up.
The documents were left for another officer to serve
and about 10 hours later the accused was released.

The accused was arrested for
assault causing bodily harm against
his girlfriend. His effects, including
his house keys, were taken from him
and he was lodged in cells. The
accused asked the police that his parents be allowed to
attend his home to remove his dog and obtain clothing
for his two children he had custody of from a previous
marriage. The investigating officer, who was
considering obtaining a warrant and concerned that the
parents might remove potential evidence of the assault,
explained that they would arrange his request provided
the police could accompany his parents into the home. A
second officer, who knew nothing of the details of the
assault investigation, was requested to accompany the
parents and to ensure only children’s clothing and the
dog were removed. The officer was also told to keep
his eyes open in case he observed anything that might
be evidence of an assault.

At trial, the accused argued that he had been
arbitrarily detained contrary to s.9 of the Charter.
Although the trial judge found the initial arrest and
detention of the accused for the purpose of breath
samples lawful under the Criminal Code (“to “secure and
preserve evidence of or relating to the offence”, i.e. to
conduct breathalyser tests”), he agreed the continued
detention after the tests was arbitrary. Goliath J. of
the Saskatchewan Provincial Court concluded:

While in the house, a cat entered the main floor and
the accused’s mother informed the officer that the cat
did not belong in the house. The cat ran down the
stairs, into the basement, and the officer gave chase
to retrieve it. While in the basement retrieving the
cat, the officer observed venting, electrical cords, and
ballasts leading from a door under which light could be
seen. Later, the accused’s mother took a bag of
garbage from the home and placed it on the street
along side other bags that had already been placed
outside. The officer seized the garbage, took it to the
police station, and found it to contain a bloody shirt and
several marihuana seedlings.

I find that the continued detention of the accused after
the completion of the breath tests was not justified
under Section 498 of the Criminal Code. I am of the view
that where such detention is not justified or authorized
it may in some circumstances, but not in every case, be
“arbitrary” within the meaning of Section 9 of The
Canadian Charter of Rights and Freedoms. I find that in
this case the detention of the accused beyond the time it
would have taken to complete the breath tests and the
unusual documentation and service, or at the very latest,
beyond the time it would have taken to return him to his
home or to make arrangements to have him picked up, was
arbitrary. His continued detention was for reasons of
convenience and perhaps lack of resources, rather than
necessity or legal justification. (emphasis in the original)

As a result, a stay of proceedings was ordered.
Complete case available at www.lawsociety.sk.ca

Volume 2 Issue 8
August 2002

During this visit however, the dog was not taken from
the home because the parents did not have an
appropriate vehicle to transport it. This, along with the
observations, was reported to the investigator of the
assault who made arrangements for a second visit later
that day so the dog could be removed. A tele-search
warrant was subsequently obtained under the
Controlled Drugs and Substances Act and evidence
relating to a charge of unlawfully producing a controlled
substance was seized.
During the voire dire to determine the admissibility of
evidence, the accused argued, among other grounds,

19

that his apparent consent to enter the residence was
not valid and the information obtained from this entry
could not be used to support the issuance of the search
warrant. He contended that the condition imposed by
the police that they would have to accompany his
parents into the home did not give him a choice and
that he merely acquiesced to allowing the police entry.
In short, the accused suggested his right under s.8 of
the Charter was violated when the police searched
first (made observations while in the home without a
warrant) and obtained judicial authorization later.

Consent
Justice Melnick of the British Columbia Supreme Court
held that the police acted reasonably. The accused did
have a choice as to whether he would allow the police to
enter. He could have told the police that he would not
have his parents enter the home if the police were
going to accompany them. Notwithstanding that it was
possible for the police to have the parents go in
unaccompanied and then search them when they
emerged from the house, this would have been
impractical. As for the dog, the door could have simply
been opened and the dog called out. Although the
accused may not have anticipated that the basement
would be entered, the officer went into the basement
in good faith to retrieve the cat, which was
unconnected with “keeping his eyes open” for evidence.
He did not use the cat as a pretext to go down into the
basement to search. Melnick J. stated:
Although the additional purpose of [the officer] “keeping
his eyes open” was not a legal activity by him in the
circumstances, the discovery of what turned out to be
evidence of the grow operation in the basement did not
flow from that illegal activity. That is, there was no nexus
between the two activities as he did not go down into the
basement as part of his improper mandate to look over the
premises for evidence relating to the assault charge, but
rather in response to the unanticipated appearance of the
cat and the cat going to the basement.

However, had the officer taken advantage of being in
the house and entered the basement to look for
evidence, all of his observations would have been
excised from the warrant and the remaining evidence
would have been insufficient to obtain a warrant. Since
the entry into the home and the subsequent trip into
the basement was lawful, the warrant was properly
issued and the evidence was admissible.
Complete case available at www.courts.gov.bc.ca

Volume 2 Issue 8
August 2002

LIQUOR SEARCH
UNREASONABLE: OFFICER
LACKS SUFFICIENT GROUNDS
R. v. Campbell, 2002 BCSC 553
Two police officers patrolling a
beach known as a hot spot,
particularly in the summer weekends
where young persons frequented and
consumed
alcohol
and
drugs,
observed a group of 6 to 8 young persons standing
around a parked vehicle. A female in the group
appeared to be drinking what the officers suspected
was alcohol. After the officers parked their vehicle
and approached the group to investigate, a male
carrying a backpack began to walk away. The male had
been standing on the same side of the car as the
female, 15-20 feet away, but had not been observed
having any dealings or contact with her. One of the
officers checked the female, who was under age and
had been drinking vodka, and served her with a ticket
for being a minor in possession of liquor. The second
officer stopped the male to investigate whether he was
carrying any liquor in his backpack and asked for
identification, which the accused failed to produce
(although he did identify himself verbally).
The officer asked to search the accused’s backpack,
but was refused. This demand was repeated and after
two further refusals, the accused was arrested for
obstruction of justice. No Charter warnings were
provided, but the accused was taken over to the police
vehicle and the officer again demanded to search the
backpack, which again was refused. The accused’s
reluctance to permit the search of his backpack raised
the suspicions of the officer that he may be carrying
something more than alcohol. The other police officer,
who was unaware the accused had been arrested but
had overheard the search demand and refusal at the
police vehicle, told the accused his bag was going to be
searched and took it from him. At this time the
accused volunteered that there were drugs in the bag
and the police opened it and found marihuana,
psilocybin, and cocaine. The accused was also searched
and $103 found in his pants pocket was seized as
proceeds of crime.
As a result, the accused was charged with three counts
of trafficking and one count of possession of proceeds
of crime. During the trial voire dire to determine the

20

admissibility of evidence, the accused argued, among
other grounds, that his right to be secure against
unreasonable search and seizure was violated and the
evidence was inadmissible under s.24(2) of the Charter.

Reasonable Grounds and the Search
Section 67 of British Columbia’s Liquor Control and
Licensing Act (LCLA) permits police officers to search
persons and places (except residences) without a
warrant where the officer believes on reasonable and
probable grounds that liquor is unlawfully possessed or
possessed for an unlawful purpose. This section also
creates an offence if a person obstructs the search. A
lawful search under this section requires the existence
of reasonable and probable grounds. The Crown
submitted that, although the accused was of legal age
to possess liquor and that there was no evidence he was
consuming or supplying liquor to minors, the police
nonetheless had reasonable grounds to believe he had
committed an offence under the LCLA. The beach was a
well known area for minors to gather and consume
alcohol and/or drugs, the officers had personal
experience in this regard, it was late on a summer
weekend, backpacks were commonly used in
transporting alcohol and/or drugs, the accused failed
to produce identification, and the accused walked away
from the group as the police approached. On the other
hand, the accused argued that the objective criteria
only amounted to a mere suspicion, insufficient to meet
the reasonable belief standard required for a
warrantless search.
British Columbia Supreme Court Justice Smith
concluded that the police did not have the objective
evidence to support a belief that the accused had
committed or was about to commit an offence under
the LCLA. The accused, who appeared to be hanging
around with a group of young persons, was 15-20 feet
away from a female who had been seen drinking but had
not been seen to have any contact or dealings with him.
Since there were no reasonable grounds to search the
accused, there were also insufficient grounds to arrest
him for obstructing the search when he refused to let
the officers look into the backpack.
Although reasonable grounds developed after the
accused informed the police that his backpack
contained drugs, this statement was only made after
his arrest without being given the appropriate Charter
warnings. Because the officers knew or ought to have
known that they did not objectively have reasonable
grounds to search the accused, the s.8 Charter

Volume 2 Issue 8
August 2002

violation was serious. Furthermore, the obstruction
arrest was made only to allow the police to search the
backpack incidental to arrest and the absence of any
Charter warnings supported the appearance that the
officer had no intention of pursuing the charge. The
police conduct did not demonstrate good faith nor a
mere technical breach and the evidence was ruled
inadmissible under s.24(2) of the Charter.
Complete case available at www.courts.gov.bc.ca

INCORRECT ADVICE FROM
LEGAL AID RESULTS IN
ACQUITTAL
R. v. Watts, 2002 BCPC 0235
After responding to a complaint, a
police officer found the accused in a
parked motor vehicle and demanded
he provide a sample of his breath.
The accused accompanied the
officer to the police station where a call was placed to
Legal Aid. Evidently, on the advice received from the
legal aid lawyer, the accused refused to provide a
breath sample. The accused was charged with impaired
driving and refusing to provide a breath sample. At
trial, the accused was acquitted of both charges. On
the impaired charge, British Columbia Provincial Court
Judge Angelomatis found that although the officer had
reasonable grounds for the demand, the evidence was
insufficient to warrant a conviction. On the refusal
charge, the judge concluded that because the Legal Aid
lawyer is appointed by the state, if they provide
incorrect
legal
advice
(misinformation
or
disinformation) the person who receives that advice is
not criminally responsible. On the other hand, a person
who pays for a lawyer themselves would not gain an
advantage from this mistake. Interestingly, the judge
followed a number of Ontario cases on this point even
though he disagreed with them personally, had a
problem with them professionally, found them
unpalatable, disagreeable, irrational, and in direct
conflict with common sense.
Complete case available at provincialcourt.bc.ca

Note-able Quote
“There are two types of leaders in the world today:

those who are interested in the fleece, and those who
are interested in the flock” Author Unknown

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NEW SUPREME COURT OF
CANADA JUDGE APPOINTED
On August 8, 2002, Madame
Justice Marie Deschamps was
appointed from the Quebec
Court of Appeal to the Supreme
Court of Canada. Chief Justice
McLachlin
stated,
“Justice
Deschamps is a dedicated judge,
who brings to the Court a wealth of expertise and
experience”. Canada’s top court is comprised of nine
justices, three of which must be from Quebec. For
more information on the Supreme Court of Canada, visit
their web-site at www.scc-csc.gc.ca

RIGHT TO COUNSEL MUST
BE REAL

responsibility for facilitating contact with counsel on
the detainee’s behalf, they must take all reasonable
steps to ensure the right to counsel is real, not simply
theoretical. In determining what are reasonable steps,
the court will examine what steps the detainee may
have taken if they were provided the means to do so. In
this case, the officer only called one of the phone
numbers in the telephone directory listing for the
accused’s lawyer. Had the accused been given a fully
functional telephone and the directory, it would have
been his responsibility to call the numbers and would be
reasonable to conclude he would have called both
numbers and been reasonably diligent in doing so. In
short, the accused “was a detainee whose liberty and
rights were being limited by the state at that moment”
and the police had “a duty to do at least as much as
[he] reasonably would have done”. The Certificate of
Analysis was excluded and the charges were stayed.
Complete case available at www.provincialcourt.bc.ca

R. v. Jacobs, 2002 BCPC 0227
The accused was taken to the police
detachment to provide breath
samples. After the booking process,
he requested an opportunity to
speak to a local lawyer. He was
placed in a phone room that had a receiver, but no dial
pad. The procedure in place was for the police or jail
staff to make the call on the detainee’s behalf, then
transfer the call to the phone room. This process
prevents the detainee from speaking to persons other
than counsel. Although the accused’s lawyer was not on
an available list of local lawyers, the officer did locate
a listing in the phone book with an office, home, and fax
number. The officer called only one of the numbers,
but could not recall at trial which one he had dialed.
The phone rang, but there was no answer. After the
officer informed the accused that there had been no
answer, the accused requested Legal Aid. He
subsequently spoke with a Legal Aid lawyer for 3-4
minutes. During a voire dire on the impaired driving and
over 80mg% charges, the accused argued that his
s.10(b) Charter right had been violated because the
police failed to take adequate steps to contact his
counsel of choice and the Certificate of Analysis should
be excluded under s.24(2).
A detainee has the right to counsel of their choice and
the police took away the accused’s ability to implement
that right himself when they provided him a telephone
without a dial pad. Once the police assume

Volume 2 Issue 8
August 2002

LEGAL LAUGHS
Fonseca, an unscrupulous lawyer for
a man arrested for murder, bribed a
man on the jury to hold out for a
verdict of manslaughter. The jury
was out for a very long time, and
finally they returned with a verdict
of manslaughter. Fonseca rushed up to the juror.
“Here’s your money,” he said. “I’m much obliged to you,
my friend. Did you have a very hard time?” “Sure did,”
replied the man, “an awfully hard time. The other
eleven wanted to acquit.”34

CONSENT OF OWNER
OVERRIDES PRIVACY INTEREST
OF TEMPORARY HOUSEGUEST
R. v. Scheck, 2002 BCSC 1046
The accused, an 18 year old female,
resided rent free in a spare bedroom
at her grandmother’s home, but
could only stay there if she obeyed
the rules of being home by midnight,
keeping the bedroom tidy and clean, behaving herself,
and having no one else in the house. Because the
accused failed to keep her room neat, her grandmother
would enter the room to clean it up. When the accused
34

Source: Behrman, Sid. (1991). The Lawyer Joke Book. New York, NY.: Dorset
Press.

22

complained to her grandmother about this, the
grandmother asserted that she could do what she
wanted in her own house. After being informed that
the accused was involved in a relationship with a drug
dealer, the grandmother entered her bedroom and
found a sock under the bed mattress containing money
and plastic bags. This was reported to the RCMP and
two officers attended the residence. The officers
were invited in and located the sock stuffed with
money and cocaine between the mattress and box
spring. One of the officers testified that he
considered obtaining a warrant but concluded it was not
necessary because the homeowner had invited him in.
At trial on a charge of possession of cocaine for the
purpose of trafficking, the accused argued that her
right to be secure from unreasonable search and
seizure protected under s.8 of the Charter had been
violated and the evidence should be excluded under
s.24(2).
Section 8 of the Charter protects the person, not
property, and a person asserting the right does not
require a propriety or possessory interest in the
premises searched or articles seized. Although a
warrantless search is presumptively unreasonable, the
accused must first establish a reasonable expectation
of privacy in the place searched or items seized if s.8
is to be engaged. In this case, British Columbia
Supreme Court Justice Meiklem found the accused
could not demonstrate a reasonable expectation of
privacy. She was not present at the time of the search
nor had her grandmother relinquished the right to
enter or exercise control over the room she owned. The
spare room was being used temporarily and gratuitously
by the accused and the door did not have a lock. If the
accused left the door closed when she left the home,
she found it open when she returned. Despite
testifying to a subjective privacy expectation, it was
not objectively reasonable in the circumstances.
Furthermore, even if the accused had an expectation
of privacy, it could be overridden at the discretion of
her grandmother. Her grandmother consented to the
search, which was both voluntary and informed. There
was no breach of the accused’s rights and the evidence
was admissible.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Tell me and I’ll forget. Show me and I may remember.
Involve me and I’ll understand” Confucius

Volume 2 Issue 8
August 2002

POLICE LIABLE IN CUSTODIAL
DEATH OF INTOXICATED MAN
Roy et al. v. Attorney General of Canada
et al., 2002 BCSC 1021
The plaintiffs, the wife and three
stepchildren of a man who died in
police custody, brought an action
under the Family Compensation Act
alleging the police were negligent in
failing to seek medical treatment for his intoxicated
condition. The plaintiffs sought damages for loss of
guidance, loss of financial support, and loss of
household services. The deceased, who was 56 years
old, was arrested by police for being intoxicated in a
public place under the Liquor Control and Licensing Act
after a citizen called police to report observing a drunk
male stumble to the ground while trying to get into his
car. The attending officer found a male lying on the
ground and concluded he was severely intoxicated.
Following the attendance and assistance of a second
officer, the deceased, who was non responsive, was
picked up, carried to, and placed in the back of the
police vehicle. He was transported to the police station
where he was placed on a blanket and dragged to the
“drunk tank”.
His personal effects were removed and he was rolled
into the recovery position in the event he vomited.
Although he was drowsy, had difficulty communicating,
and very limited physical reaction to his surroundings,
no medical check was performed. About 23 minutes
after being booked in, the jail guard checked the
deceased and found his snoring and breathing had
stopped. Attempts to revive him were unsuccessful and
he was transported to and later pronounced dead at
the hospital. The most likely cause of death was acute
alcohol ingestion. This occurs when large amounts of
alcohol are consumed and act as a central nervous
system depressant, leading to coma, respiratory
depression, and eventually respiratory arrest. If timely
medical intervention is sought and the alcohol toxicity
detected, death can be averted. To be successful in a
lawsuit alleging negligence, the plaintiff must establish
the following:
•
•
•

the police owed the deceased a duty of care;
the police breached the standard of care
expected; and
the death was a proximate cause of the breach of
the standard of care.

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If these enquiries show the prisoner’s responsiveness is
minimal, or if they do not reveal sufficient information for
a police officer to reach a conclusion that the prisoner is
conscious and not in jeopardy, the standard of care
requires the officer err on the side of caution and take
the prisoner for medical examination before he or she is
incarcerated.

Duty of Care
The police owe prisoners in their custody a duty of
care, particularly when a prisoner is intoxicated.
Intoxicated persons are vulnerable and an arrest for
being drunk in public is often founded in a concern
about the person’s safety. “The standard of care to
which the police are held is that of “a reasonable police
officer, acting reasonably and within the statutory
powers imposed upon [them], according to the
circumstances of the case””. Police policy manuals may
assist the court in determining the standard of care. In
this case, the RCMP national policy required an
incarcerated person who is “not fully conscious”
medically examined while the provincial and detachment
policy required a person of “questionable consciousness”
to be medically assessed. A state of reduced mental
awareness, in which a person is not readily responsive,
may prevent a prisoner from communicating their
symptoms to the police or request assistance.
Furthermore, diminished awareness may mask other
serious conditions, preventing their detection while
other medical conditions may mimic the symptoms of
alcohol intoxication. The prisoner, being under the
control of the authorities, is entirely dependent on the
police to obtain medical assistance on their behalf.
After weighing the risks to the prisoner and the
burden on the police in having prisoners medically
assessed, British Columbia Supreme Court Justice
Neilson concluded that the standard of care must be
conservative and where there is any doubt about the
prisoner’s level of awareness, they should be medically
assessed. Notwithstanding however, prisoners who are
intoxicated, but consistently responsive to their
environments, may be incarcerated without an
examination. The standard of care also “imports a
requirement that the officer dealing with the prisoner
conduct an appropriate investigation in making a
determination as to the prisoner’s level of awareness”.
Neilson J. stated:
[I] would expect such an assessment to include, at a
minimum, an attempt to converse with the person about
how much he or she has had to drink, and what other
causes there may be for his or her condition. I would
expect some attempt to make him or her respond to
basic commands to assess the level of awareness. I would
expect the officer do a basic physical examination to
determine if the person has suffered any injuries, and
whether the vital signs such as pulse and breathing are
stable. I would also expect the officer to investigate the
circumstances in which he or she was found, including
speaking to available witnesses about their observations.

Volume 2 Issue 8
August 2002

Breach of the Standard of Care
Because the deceased was in a state of “questionable
consciousness” showing signs of severe intoxication, the
officers had a duty in accordance with the standard of
care to determine whether he required a medical
examination before incarceration. Since the police “did
not perform any adequate assessment or investigation
into [the deceased’s] state of consciousness or its
cause”, they failed to meet the standard of care
required.

Proximate Cause
Neilson J. concluded that if the deceased had been
medically assessed, the progression of his respiratory
distress would have been identified and he would have
received immediate assistance to save him. Thus, the
breach of the standard of care was a proximate cause
of the prisoner’s death. However, the court also
recognized that the deceased “was not a passive
participant” in his death and had self-ingested a large
amount of alcohol placing himself at risk. This selfinduced intoxication was a basis for finding the
deceased 50% responsible for his own death. The
plaintiffs were awarded damages for loss of guidance,
loss of financial support (past and future), and loss of
household services, which were reduced by half due to
the deceased’s contributory negligence.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“I am frequently struck by the sense that we spend very
little time considering evidence which the Crown hopes
will prove the defendant was driving while…impaired, and
the majority of the time putting the police officers on
trial regarding their investigation35” BCPC Associate
Chief Judge Stansfield

For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
35

R. v. Jacobs, 2002 BCPC 0227.

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