!"#$%&'(%()&*+

,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB

!"#$%&'!(%)*+,IN SERVICE: 10-8
A PEER READ PUBLICATION

A PEER READ PUBLICATION

('>49;54<<41'346C<43'<C'CD41E<2C>E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7

./# 01234# 56# 5++7# 85,9:12,;<=#
(;/>?1@<:# A1/B:<# C:>>B:2# ;D# ?4:# E1F1<#
G;<B3:# A:H12?I:/?# J1># D1?1<<9# >4;?#
=K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@:3O#
PB># H12?/:2# (;/>?1@<:# $?:H41/:#
Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO

#
#

*

#
#

!"#$%&'()*9&(),3)*:31#&-

A:3:I@:2#*86#5++U
E1F1<#G;<B3:#A:H12?I:/?

E6);*&,)*"/,*6),")$F*G)*$6&((*#"%*H",1)%*%6)4F

A newsletter devoted to operational
police officers in Canada.
!""%$
!""%
$8'*&*"O$(#

IN MEMORIAM
#

*

#
#

*

!"#$%&'()*7#%6"#;*:",0"#

#
#

01234#W6#5++U
&(0G#Z<@:2?1

*

!"#$%&'()*<3"#30)*5"6#$%"#

#

*

(;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=#
On Friday May 31, 2013 # 23-year-old
Saskatchewan Environment
#
01234#W6#5++U
@::/# H12?# ;D# 1# <12L:# >BIK<?1/:;K>#
and Resource Management# Conservation
Officer Justin Knackstedt
#
&(0G#Z<@:2?1
3213R=;J/# ;/# 1# =2KL,=:1<B/L#
was struck and killed by a* vehicle.
Officer
Knackstedt and several
*
!"#$%&'()*.,"-8*+;,"(
/:?J;2R# JB?4# >:1234# J1221/?># ;K?#
other
officers
were
diverting
traffic
at
the
scene of an earlier
#
#
01234#W6#5++U
D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=#
#
#
&(0G#Z<@:2?1
accident
when
RCMP
constables
received
reports
of a car being
?J;#B/#M2;>>12=O

driven erratically in the area. A constable spotted the vehicle

*
!"#$%&'()*=)%),*>-63)4&##
(;/>?1@<:# C:>>B:2# 41=# @::/#
#
#
01234#W6#5++U
stopped
in
traffic
backed
up
from
the
earlier accident and made
1>>BL/:=#?;#?4:#I;21<B?9#1/=#=2KL#>TK1=#;/<9#;/:#J::R#
#
&(0G#Z<@:2?1
contact with the driver. As# the constable
spoke with the driver the
@:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;<B3:#;DDB3:2#D;2#*U#
9:12>O

man suddenly drove into !""&$
the area that was closed to traffic and
!""&
struck Officer Knackstedt, *killing* him. !",?",&(*5&4)$*:&(("@&;
The driver continued to flee
(;/>?1@<:# C:>>B:2# B># >K2FBF:=# @9# 4B>#
#
#
Q:@2K129#5-6#5++8
until
crashing
into
a
ditch
where
he
was
apprehended.
JBD:6# J4;# 1<>;# >:2F:># 1># 1# H;<B3:#
#
# available
&(0G#Z<@:2?1
Source:
Officer
Down Memorial
Page
at www.odmp.org/canada
3;/>?1@<:6# 1/=# ?J;#
9;K/L#
=1KL4?:2>#
1L:>#*+#1/=#*5O

!""!
“They	
 Are	
 Our	
 Heroes.	
 !""!$
W*e	
 S!"#$%&'()*.)#"3%*<AB-/;),
hall	
 Not	
 Forget	
 Them.”
*
inscription
on Canada’s Police and Peace Officers’ Memorial, Ottawa
VB?4# ?4:# =:1?4# ;D# (;/>?1@<:# C:>>B:26# 1# ?;?1<#
;D# *W#
#
#
Q:@2K129#5-6#5++5
H;<B3:#;DDB3:2>#41F:#<;>?#?4:B2#<BF:>#?;#LK/DB2:#;F:2#?4:#
#
#
0;/?2:1<#G;<B3:#$:2FB3:
H1>?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/3<K=:)
#

!""#$
!""#
#
#
#

#
#
#

British Columbia Police & Peace
!""'$
Officers’ Memorial
Service
*
* * !"#$%&'()*C)##3$*>%,"#1D/3((

!"#$%&'()*+&,-*."/,0&1)$

*

*

#
#

#
#

#
# 29th,
# A:3:I@:2#5*6#5++*#
Sunday, September
2013
#
#
# &(0G#01/B?;@1
British Columbia
Legislature
#
#
# !"#$%&'()*5/,1)#*>))@&(0
!"#$%&'()*2"'3#*!&4),"#
#
#
# 01234#U6#5++*
XK<9#*U6#5++Y#
Victoria, BC #
#
# &(0G#"K/1FK?

#
#
#

#
#
#

019#U6#5++Y
VB/=>;2#G;<B3:#$:2FB3:#./?12B;#

#

XK<9#*Y6#5++Y#
&(0G#$1>R1?34:J1/

&(0G#$1>R1?34:J1/

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

?C5H=4','$;;H4'L
*E1/GM(D125'LNN,

!"#$%&'( )**+%&$(
,"-.(
Canadian
Police
& /&0"$+12(
Peace 314&5( 161+2172&( 18(
---9":0;9"$4<%1.1:1
Officers’ 36th Annual Memorial
Service
04'J=E1<'E>3'J<EK'JEF4

Sunday, September 29th, 2013

!"#!$%!&'(!)*+,-%).)*!
!"#!$%!&'(!)*+,-%).)*!!!
Parliament Hill
!
/01)-20!3!*)!(,-4
/01)-20!3!*)!(,-4!
Ottawa, !Ontario
56#7#897:
56#7#897:!

!"#!57;<"=>?9";!=@!?8!'<"A#!2"==9#6:!
see
page
56=!BC8DE!56#FC<"8DE!56#A#8"8DE!-#7>=8FC8DG!
38
!"#$%&'"#(')(&**(+$%!,-.(/012$2)1-(&3#(4"-5)3#"1-!
!-)2!-0%!)/!!,!&'(!)*+,-%).)*!!5)-2,**)&!,*&3!

Be Smart & Stay Safe

Volume 13 Issue 4

4#;8=9#!7>#?H#67:
+6?8H!/#'8D#BC7E!56C8<C>?B!%=BIJKC8#!LCD"!2<"==B!
67"('1&8"#9(&'(:)*0,;$3"(1"#"!3"#('7"(3&!)3<(=1<(!">38"*$-('"**-(7$-(-')19(?1),('7"("2"3'-(')('7"(&""1,&'7<(

Volume 13 Issue 4 - July/August 2013

Highlights In This Issue

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

Finds Committing = RGB Person Apparently
Committing Offence

4

Single Phone Call To Buy Drugs Inadmissible As
Hearsay

6

Concern For Destruction Of Digital Evidence
Justified No-Knock

10

Handcuffing During Safety Search Compatible With
Investigative Detention

13

2012 Police Reported Crime

15

Odour Plus Provides Reasonable Suspicion For ASD

20

Confidential Info + Observations & Inferences
Provide Grounds

22

Warrantless Entry: Objective Basis Must Support
Subjective Belief

24

Random Stop Purpose Must Relate To Road Safety
Interest

27

911 Call Justifies Police Entry

28

Prospective Production Of Future Text Messages Is
An Intercept

33

October 2-5, 2013
Vancouver, British Columbia

No Detention During Undercover Traffic Stop

35

24th	
 Annual	
 Problem-Oriented	
 
Policing	
 Conference

National	
 Library	
 of	
 Canada	
 
Cataloguing	
 in	
 Publication	
 
Data

Upcoming Conferences
The	
 WAVR-21:	
 
A	
 Scientifically-Based	
 Instrument	
 for	
 
Assessing	
 Workplace	
 Violence	
 Risk
September 10-11, 2013
JIBC
New Westminster, British Columbia

Canadian	
 Identification	
 Society	
 Annual	
 
Educational	
 Conference
September 23-26, 2013
Vancouver, British Columbia
34th Canadian	
 Congress	
 on	
 Criminal	
 Justice

October 7-9, 2013
Dayton, Ohio

Main entry under title:
In service: 10-8. -- Vol. 1, no. 1 (June 2001)
Monthly
Title from caption.
“A newsletter devoted to operational police
officers across British Columbia.”
ISSN 1705-5717 = In service, 10-8

The	
 Psychopathy	
 of	
 An	
 Active	
 Shooter:
Profiling,	
 Predicting,	
 Preventing,	
 Responding
November 6, 2013
see
page
JIBC
38
New Westminster, British Columbia

1. Police - British Columbia - Periodicals. 2.
Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of
British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten-eight.
PAGE 2

Graduate Certificates
Intelligence Analysis
or
Tactical Criminal Analysis

see
pages
39-40

www.jibc.ca

Volume 13 Issue 4 - July/August 2013

Making elearning stick: techniques for easy and
effective transfer of technology-supported
training.
Barbara Carnes.
Alexandria, VA: ASTD Pr., 2012.
LB 1028.5 C376 2012

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

Advanced presentations by design: creating
communication that drives action.
Andrew V. Abela, Ph.D.
San Francisco, CA: Pfeiffer, A Wiley Imprint, 2013.
HF 5718.22 A24 2013
Canadian political structure and public
administration.
Geoffrey J. Booth, Laura E. Booth, Andrew J. Rowley.
Toronto, ON: Emond Montgomery Publications,
2013.
JL 75 B66 2013
Culture savvy: working and collaborating across
the globe.
Maureen Briget Rabotin.
Alexandria, VA: American Society for Training &
Development, 2011.
HF 5549.5 M5 R325 2011
Fear your strengths: what you are best at could
be your biggest problem.
Robert E. Kaplan, Robert B. Kaiser.
San Francisco, CA: Berrett-Koehler Publishers, 2013.
HD 57.7 K365 2013
Group dynamics for teams.
Daniel Levi.
Thousand Oaks, CA: SAGE, 2013.
HD 66 L468 2013
Leading out loud: a guide for engaging others in
creating the future.
Terry Pearce; foreword by Randy Komisar.
San Francisco, CA: Jossey-Bass, 2013.
HD 57.7 P4 2013

Proposals that work: a guide for planning
dissertations and grant proposals.
Lawrence F. Locke, Waneen Wyrick Spirduso,
Stephen J. Silverman.
Thousand Oaks, CA: SAGE, 2013.
Q 180.55 P7 L63 2013
The rules of work: a definitive code for personal
success.
Richard Templar
Harlow, UK: Pearson Business, 2013.
HF 5386 T34 2013
Scenario-based e-learning: evidence-based
guidelines for online workforce learning.
Ruth Colvin Clark.
San Francisco, CA: Pfeiffer, a Wiley imprint, 2013.
HF 5549.5 T7 C588 2013
Smart trust: creating prosperity, energy and joy in
a low-trust world.
Stephen M.R. Covey and Greg Link; with Rebecca R.
Merrill.
New York, NY: Free Press, c2012.
HF 5387 C677 2012
So good they can't ignore you: why skills trump
passion in the quest for work you love.
Cal Newport.
New York, NY: Business Plus, 2012.
HF 5381 N497 2012
There is an I in team: what elite athletes and
coaches really know about high performance.
Mark de Rond.
Boston, MA: Harvard Business Review Press, 2012.
HD 66 R648 2012

PAGE 3

www.10-8.ca

Volume 13 Issue 4 - July/August 2013

FINDS	
 COMMITTING	
 =	
 RGB	
 
PERSON	
 APPARENTLY	
 
COMMITTING	
 OFFENCE

•

a rented vehicle - often used by drug couriers to
avoid detection and seizure of their own
vehicles. Also used to deny knowledge of any
drugs that may be found;

R. v. Ashby, 2013 BCCA 334

•

the smell of men’s cologne - often used by drug
couriers to mask the smell of marihuana;

•

the fast-food wrappers - as drug couriers do not
wish to stop for very long or leave their vehicles
unattended they will pick up food from drivethrough or fast-food restaurants; and

•

the partially open driver’s window and sun-roof
in minus 21 degree weather - the accused may
have been trying to vent the smell of marihuana
from the vehicle.

A police officer clocked a vehicle
travelling 94 km/h in an 80 km/h
zone. It was also being driven
outside the tracks that had been
made in the snow by other vehicles.
The driver’s window was down about one-quarter
the way and the sun roof was open part-way, even
though it was -21 Celsius. The officer was concerned
about the accused’s level of sobriety and pulled the
Hyundai over. The vehicle was a rental and the
officer noted a strong odour of vegetative green
marihuana, similar to the smell of marihuana in a
grow operation. He noted a red bag on the
passenger’s seat, fast food wrappers on the floor and
an odour of men’s cologne. The officer asked the
accused for her driver’s licence and the rental
agreement. A computer search revealed she had a
conviction for possessing a narcotic about 22 years
earlier. When the officer returned to the vehicle to
issue a warning ticket, he arrested the accused for
possessing marihuana, advised her of the right to
counsel and patted her down. She was not permitted
to speak to counsel at the roadside, instead access
was provided at the police station. As a result of
searching her vehicle, about 21 kgs. of marihuana
was found in the trunk and $17,000 in the travel bag
on the front passenger seat. The accused was
subsequently charged with possessing marihuana for
the purpose of trafficking.

British Columbia Supreme Court
The officer testified he was familiar with
three distinct marihuana related odours:
•
•
•

burnt (ie. smoked),
bud (ie. harvested) and
plants (ie. vegetative/growing).

He said the odour, along with other possible
indicators of drug-related activity, provided him with
the necessary grounds to believe that the accused
was then in possession of marihuana. These possible
indicators of drug related activity included:

The trial judge concluded that the arrest was lawful
under s. 495(1) of the Criminal Code. First, he found
that the “the strong odour of vegetative marihuana ...
was sufficient on its own to support a reasonable
belief that [the accused] was in possession of
marihuana, or had committed the indictable offence
of being in possession of marihuana.” Plus, there
were other indicators that added significance to the
odour and informed the officer’s decision to arrest.
In the judge’s view, the arrest was justified under
both s. 495(1)(a) (reasonable grounds to believe an
indictable offence had been committed) or s. 495(1)
(b) (finds committing a criminal offence) and the
search of the vehicle incident to that arrest. As for s.
10(b) of the Charter, the judge concluded the
accused’s right to counsel was not infringed. Finally,
even if the accused’s rights had been breached, the
judge would have admitted the evidence under s. 24
(2). She was convicted of possessing marihuana for
the purpose of trafficking.

British Columbia Court of Appeal
The accused argued that Her arrest
was unlawful. In her view, the
officer did not have reasonable
grounds to believe that an
indictable offence had been committed or was about
to be committed (s. 495(1)(a)) nor make sufficient
observations to support a reasonable inference that
she was committing the crime of possessing
marihuana (s. 495(1)(b)). As well, she contended her
right to counsel had been infringed because, in part,

PAGE 4

Volume 13 Issue 4 - July/August 2013
she was not permitted to contact a lawyer by
cellphone at the roadside.

The Arrest
Although the trial judge upheld the legality of the
accused’s arrest under both ss. 495(1)(a) or (b),
Justice Frankel, delivering the unanimous Court of
Appeal judgment, found the arrest only justifiable
under s. 495(1)(b). Possession of more than 30 grams
of marihuana, a dual or hybrid offence, is deemed
an indictable offence at the investigative stage but
possession of 30 grams or less is only a summary
offence. In this case, the officer subjectively believed
the accused was in possession of marihuana but he
had no idea how much marihuana was involved and
did not testify he believed more than 30 grams were
present. “Absent a subjective belief that the amount
of marihuana present was more than 30 grams, [the
officer’s] powers of arrest were limited to those
applicable to summary conviction offences,“ said
Justice Frankel. “He only went as far as saying that
he believed some unknown amount of marihuana
was present.” Thus, the accused’s arrest could not be
supported under s. 495(1)(a).
Under s. 495(1)(b) - finds committing a criminal
offence - the officer was required to have reasonable
grounds to believe the accused was apparently
committing the offence of possessing marihuana in
his presence. “An arrest will be lawful if the arresting
officer subjectively believes he or she has the
requisite reasonable grounds and those grounds are
objectively reasonable,” said justice Frankel. In this
case, since there were additional factors considered
by the arresting officer, it was unnecessary for the
Court of Appeal to determine whether the odour of
marihuana by itself was sufficient to support a
reasonable belief. The Court concluded that “the
factual matrix that existed at the time the arrest
decision was made satisfies the objective criterion.”
Although some of the factors considered by the
officer “standing alone can be consistent with noncriminal activity, their combined effect, when
viewed through the lens of a police officer’s
experience, cannot be ignored.” Here, the Court

WHAT WAS FOUND
Police located the following items in the Hyundai:
• three garbage bags in the trunk: slightly
more than 21 kilograms of marihuana inside 41
vacuum-sealed Ziploc bags; inside each vacuumsealed bag were two plastic bags each containing
approximately 500 grams of marihuana;
• blue duffel bag in the trunk: clothing and a
sealed Ziploc bag containing two plastic bags, each
containing 510 grams of marihuana;
• red bag on the passenger seat: female
clothing and toiletries, several bundles of cash (i.e.,
$100, $50, and $20 bills) bound with elastic bands
totalling $17,000;
• front area of the vehicle: empty and full energy
drink cans and fast-food wrappers;
• toque on the passenger seat contained a
bottle of cologne, a $10 bill, two full energy “shots”
and a cellular telephone.
“”

“Notwithstanding that each of those factors
standing alone can be consistent with noncriminal activity, their combined effect, when
viewed through the lens of a police officer’s
experience, cannot be ignored.”
found that a reasonable person standing in the
officer’s shoes would believe that the accused was
apparently committing the offence of possessing
marihuana:
In addition to detecting the strong odour of
vegetative marihuana emanating from the
Hyundai, [the officer] observed a number of
things which, based on his experience, were
consistent with [the accused] being a drug
courier. It was the cumulative effect of what his
senses perceived—the totality of the
circumstances—that gave rise to his belief that
she was in possession of marihuana. When all of
[the officer’s] olfactory and visual observations
are assessed on a practical, non-technical, and
common sense basis, his decision to arrest is
objectively justified. [reference omitted, para.
59]

“An arrest will be lawful if the arresting officer subjectively believes he or she has the
requisite reasonable grounds and those grounds are objectively reasonable.”
PAGE 5

Volume 13 Issue 4 - July/August 2013

SINGLE	
 PHONE	
 CALL	
 TO	
 BUY	
 
DRUGS	
 INADMISSIBLE	
 AS	
 
HEARSAY

Right to Counsel
As part of her s. 10(b) Charter argument, the accused
suggested that she should have been allowed to
contact counsel at the roadside by cellphone. But
the Court of Appeal rejected this submission. Here,
the officer explained that he would not allow her to
use a cellular telephone for reasons of officer safety:
Officer: When people are hauling contraband,
often there’s another vehicle, a protection
vehicle, so – or they could call a friend or call
someone else. When I’m by myself dealing with
this vehicle, I am focused on that vehicle, so I’m
not focused on any other vehicle. So if I give
access and she calls her blocker vehicle and the
blocker vehicle comes around me, that’s an
officer safety issue.

Although s. 10(b) provides that an arrested or
detained person has the right “to retain and instruct
counsel without delay” - which has been interpreted
as “immediately” - concerns for officer and public
safety could excuse immediate compliance with the
implementational component. Justice Frankel stated:
In the case at bar, it was neither reasonable nor
practical for [the officer] to implement access to
counsel at the roadside. He had just arrested [the
accused] for a drug-related offence and had
reason to believe there were drugs in her
vehicle. Until back-up arrived, he was solely
responsible for maintaining control of both her
and the vehicle. Once back-up ... arrived, [the
officer] did a cursory search of the Hyundai and,
upon finding marihuana, immediately drove [the
accused] to the detachment, five minutes away.
The delay here was plainly minimal. [para. 73]

R. v. Baldree, 2013 SCC 35
While investigating a suspected
break-in at an apartment, police
arrested the accused for drug
offences and seized from him a cell
phone and cash. When the phone
rang at the police station, an officer answered it and
the caller asked for the accused. The officer said he
was running the show now and the caller provided
an address and requested an ounce of weed for
$150. The police, however, made no effort at all to
contact the caller at the address provided and no
delivery was made. The accused was charged with
possession for the purpose of trafficking.

Ontario Superior Court of Justice
Despite the accused’s objection that the
evidence of the telephone call was
inadmissible hearsay, the judge found the
evidence to be “non-hearsay.” He
concluded that the phone call was not tendered for
the truth of the fact that the accused was a drug
trafficker but that it was circumstantial evidence of
an individual engaged in drug trafficking. Since the
evidence was not hearsay, it was unnecessary to
weigh its probative value against its prejudicial
effect. The call was admitted as substantive evidence
that the accused was engaged in drug trafficking and
he was convicted of possessing marijuana and
cocaine for the purposes of trafficking.

The accused’s appeal was dismissed.

Ontario Court of Appeal

Complete case available at www.courts.gov.bc.ca

Th e a c c u s e d a p p e a l e d ,
arguing the drug purchase
phone call was presumptively
inadmissible as hearsay, did
not fall within any of the
listed or principled exceptions and, even if it was
non-hearsay, its prejudicial effect outweighed its
probative value. Two of three judges, writing
separate opinions, set aside the accused’s conviction
and ordered a new trial. Justice Feldman concluded

Canadian Police & Peace Officers’
36th Annual Memorial Service

Sunday, September 29th, 2013
Parliament Hill
Ottawa, Ontario

PAGE 6

Volume 13 Issue 4 - July/August 2013
that the phone call was not admitted as
circumstantial evidence but rather as hearsay that
the accused was a drug dealer, which was untested
by cross-examination. The telephone call was not
admissible because it could not withstand scrutiny
under the principled approach to the hearsay
rule. Plus, its probative value was outweighed by its
prejudicial effect. Justice Blair, who also ordered a
new trial, was uncertain whether the evidence
constituted hearsay. However, he found it failed on
both an assessment of its necessity and reliability
and on weighing its probative value against its
prejudicial effect. Justice Watt, in dissent, opined
that the evidence of a single drug purchase call was
properly admissible as non-hearsay. In his view,
even if the drug purchase call was improperly
admitted at trial, the conviction should nevertheless
be upheld.

Supreme Court of Canada

The exclusionary rule for hearsay applies to
“express hearsay” and “implied hearsay”.

He stated:
The defining features of hearsay are (1) the fact
that the statement is adduced to prove the truth
of its contents and (2) the absence of a
contemporaneous opportunity to cross-examine
the declarant. …
In short, hearsay evidence is presumptively
inadmissible because of the difficulties inherent
in testing the reliability of the declarant’s
assertion. Apart from the inability of the trier of
fact to assess the declarant’s demeanour in
making the assertion, courts and commentators
have identified four specific concerns. They
relate to the declarant’s perception, memory,
narration, and sincerity. [references omitted,
paras. 30-31]

Why is cross examination so important?

Th e C r ow n a p p e a l e d ,
arguing that the drug
purchase phone call was
n o t h e a r s ay a n d wa s
admissible as evidence. All
nine judges, however, agreed that the call was
hearsay and inadmissible as it failed to satisfy any of
the traditional exceptions to hearsay nor meet the
principled approach, but two separate opinions were
delivered.

What is hearsay?
Justice Fish, writing the eight member majority
decision, noted the following points about hearsay:
•

•

An out-of-court statement by a person not
called as a witness in the proceedings is
properly characterized as hearsay where it is
tendered in evidence to make proof of the truth
of its contents.

•

Hearsay evidence is presumptively inadmissible
unless it falls under an exception to the hearsay
rule.

•

There are traditional exceptions to the hearsay
rule as well as a principled approach supported
by indicia of necessity and reliability.

Cross examination provides the opportunity to probe
the declarant for potential errors, allowing the
assertion imputed to the declarant to be evaluated
with the benefit of observing their demeanour.
Cross-examination can test the declarant with regard
to:
•

PERCEPTION - the declarant may have
misperceived the facts to which the hearsay
statement relates;

•

MEMORY - even if correctly perceived, the
relevant facts may have been wrongly
remembered;

•

NARRATION - the declarant may have narrated
the relevant facts in an unintentionally
misleading manner; and

•

SINCERITY - the declarant may have knowingly
made a false assertion.

In this case, the majority concluded that the Crown
was not offering the officer’s testimony of the phone
call as circumstantial evidence that the accused was
a drug trafficker but rather as hearsay (proof of the
truth of its contents). Although the assertion was not
explicit that the accused was a drug dealer (the
accused sells drugs), it was implicit (the caller

PAGE 7

Volume 13 Issue 4 - July/August 2013
expected, where there are numerous declarants,
to locate and convince most or all to testify at
trial, even in the unlikely event that they have
supplied their addresses — as in this case. And
it is important to remember that the criteria of
necessity and reliability work in tandem: if the
reliability of the evidence is sufficiently
established, the necessity requirement can be
relaxed. [references omitted, paras. 71-72]

wanted to purchase drugs). There was no distinction
in substance and the presumption of inadmissibility
applied equally:
There is no principled or meaningful distinction
between (a) “I am calling [the accused] because
I want to purchase drugs from him” and (b) “I
am calling [the accused] because he sells
drugs”. In either form, this out-of-court statement
is being offered for an identical purpose: to
prove the truth of the declarant’s assertion that
[the accused] sells drugs. No trier of fact would
need to be a grammarian in order to understand
the import of this evidence. [para. 43]

So, was the evidence admissible under a listed or
principled exception to the hearsay rule? The
Court found it was not. First, there was no traditional
exception that permitted its admissibility. Second, it
failed on the principled approach of necessity and
reliability. Neither requirement was satisfied:

NECESSITY
‣
‣
‣

The police made no effort to secure the
evidence of the caller.
They never sought to interview or even find
the caller, though he gave them his address.
There was no explanation offered as to why
no efforts were made to locate the caller.

RELIABILITY
‣

There was no basis to say that the caller’s
belief was reliable without testing the basis
for that belief by cross-examination.

Since the verdict may have been different had the
telephone call not been admitted, the Crown’s
appeal was dismissed. The judgment setting aside
the accused’s conviction and ordering a new trial
was affirmed.

A Second View
Justice Muldaver agreed with the majority
t h a t t h e d r u g p u r ch a s e c a l l wa s
inadmissible, acknowledging that the
Supreme Court was now characterizing
evidence as hearsay that had “long been received by
courts as circumstantial evidence.” However, he was
concerned about the majority’s approach to
necessity. Instead, he found the real concern and
focus on admissibility should be reliability. He
questioned the majority’s view that the police, in the
name of necessity, should be required to track down
unknown and often unknowable declarants (callers)
who are unlikely to be found and unlikely to be
forthcoming and cooperative even if they are found:

For example, where the police intercept not one
but several drug purchase calls, the quantity of
the calls might well suffice in some
circumstances to establish reliability — indeed,
while “[o]ne or two might [be] mistaken, or
might even have conspired to frame the
defendant as a dealer”, it would “def[y] belief
that all the callers had made the same error or
were all party to the same conspiracy.”

Although it is true the police in this case had the
benefit of the caller’s address, the caller’s identity
was still unknown. Surely, the police were not
going to show up at 327 Guy St. and ask who
there was looking to buy drugs from [the
accused]. Apart from officer safety concerns, the
likelihood of the police finding the declarant
would seem slim. And the prospect of the
declarant being forthcoming and cooperative, if
found, would seem even slimmer. An
undercover drug buy would be even more
problematic, given the number of officers who
would be needed to see it through and the
obvious risks to the officer safety inherent in
such an operation.

Moreover, the number of callers could also
inform necessity. The Crown cannot be

Under either option, the game would hardly be
worth the candle. And that, in my view, provides

Although this single phone call was not admitted,
Justice Fish made it clear that he was not proposing
a categorical rule for all drug purchase calls:

PAGE 8

Volume 13 Issue 4 - July/August 2013
a full answer to the concern that the police
offered no explanation as to why they made no
efforts to locate the declarant. With respect, no
explanation was necessary — common sense
provides one. If there is little chance of finding
the declarant, and little chance that, if found, he
or she will be forthcoming and provide the
police with evidence in a better form than the
call itself (such as a K.G.B. statement or
testimony in court), the necessity criterion will
have been met.

the Justice of the Peace (JP), executed and drugs and
money were seized.

Ontario Court of Justice
The officer admitted that he did not take
any steps to ascertain the truth of whether
no JP was available, nor did he know it to
be true at the time the warrant was
sought. The statement, however, factually turned out
to be true. The officer’s supervisor, who reviewed the
draft ITO, testified that after 5:00 pm the courthouse
in the area was closed. In his view, there was no use
in checking with the courthouse for a JP as opposed
to getting a telewarrant. The judge concluded that
the impracticability standard had been met, there
was no s. 8 Charter breach and the request for the
telewarrant was reasonable. The accused was
convicted.

Equally problematic is the suggestion by my
colleague that even where there are multiple
callers, the police could be expected to go out
and seek to persuade at least some of them to
testify … . With respect, absent evidence of
collusion, I see that as being wasteful. It amounts
to little more than tipping our hat to necessity for
necessity’s sake. That has not been, and should
not be, what the test for necessity requires.
[paras. 106-108]

Ontario Court of Appeal

He also noted that multiple calls, rather than a single
one, may be more reliable as “common sense tells
us that the probability of numerous callers all being
mistaken is unlikely.” But he cautioned against the
notion that only multiple calls could be reliable and
would not foreclose the possibility that even a single
drug purchase call may, in different circumstances,
meet the required threshold for admissibility under
the principled approach to hearsay.
Complete case available at www.scc-csc.gc.ca

LOCAL	
 CIRCUMSTANCES	
 OF	
 JPʼs	
 
AVAILABILITY	
 MAY	
 BE	
 
CONSIDERED	
 IN	
 TELEWARRANT	
 
R. v. Lacelle, 2013 ONCA 390
Police sent an application at 10:20
pm to obtain a telewarrant to search
a home. In the ITO the affiant stated
“There is no Justice of the Peace
available at this time” but he did not
take any steps to determine whether this was true.
Nor did he know that it was factually true at the time
he signed it. In other words, the officer swore to a
statement that he did not know to be true, but which
was nonetheless true. The warrant was approved by

The accused argued that the
telewarrant was inappropriately
issued because the statement,
“There is no Justice of the Peace
available at this time,” was insufficiently particular to
justify the warrant’s signing. In his view, something
more was required. But the Court of Appeal
disagreed. An issuing justice and the reviewing
justice may take “judicial notice of concrete local
circumstances in assessing the adequacy of the
officer’s statement.” Here, the Court found the
affiant’s approach to obtaining the warrant was
somewhat casual and his lack of knowledge and
training troubling – this was his first ITO, he did not
know the statutory requirements for an ITO or a
telewarrant and he used a precedent. But “the
context provided circumstantial guarantees that the
statement that a JP was not available was true in
fact.” “There was nothing in the context to suggest to
the officer that the statement might not be true; for
example, it is circumstantially unlikely that [the
affiant] would have been pursuing a telewarrant in
the middle of the day when J.P.s are available in
Cornwall, or that his supervising officer would have
failed to question that statement,” said the Court of
Appeal. “It was, however, during the evening. The
receiving J.P. in Newmarket would also have been

PAGE 9

Volume 13 Issue 4 - July/August 2013
aware of the unavailability of J.P.s in Cornwall given
the time of the night.”

search warrant was left in his apartment. He was
charged with possessing child pornography.

As an alternative argument, the accused urged
excision of the offending statement because the
affiant had no personal knowledge of its truth when
he swore the information, which made the statement
false. In his view, if the statement were excised,
there would not be reasonable grounds to issue the
telewarrant. The seizure was therefore unlawful, the
evidence inadmissible under s. 24(2) of the Charter
and an acquittal should follow. But, even assuming
the evidence was obtained illegally, the Court of
Appeal would have found the evidence nonetheless
admissible.

Ontario Superior Court of Justice

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

CONCERN	
 FOR	
 DESTRUCTION	
 
OF	
 DIGITAL	
 EVIDENCE	
 JUSTIFIED	
 
NO-KNOCK
R. v. Burke, 2013 ONCA 424
As part of Project Salvo, a national
investigation into child pornography
being shared over the “Gnutella”
peer-to-peer network, police obtained
a search warrant for the accused’s
apartment. The accused’s IP address had been
identified as a user from whom child pornography
could be downloaded. The investigator viewed two
child pornography video files, confirmed they were
being offered for download by the accused’s IP
address, and obtained his municipal address from
the internet service provider. The ITO also stated that
the lead investigator was aware that data files were
highly disposable as they could be quickly hidden,
disguised on a hard drive, password protected or
encrypted. When police executed the warrant,
officers kicked in the accused’s unlocked door,
entered with guns drawn and yelled at him to get
down on the floor. At least eight officers were
involved, some wearing masks. The accused, a
computer programmer for a high-tech firm, was at
home alone watching TV. He was arrested,
handcuffed, escorted outside and a search of his
computer revealed child pornography. A copy of the

The accused said he was terrified and
believed, if he made a wrong move, that
he could be killed. He was handcuffed,
told he was under arrest, escorted outside
and advised police were executing a search warrant.
The lead investigator testified, on the basis of her
specialized training and experience, that digital files
could be easily destroyed or encrypted. For this
reason, as a matter of policy, she would notify the
Tactical Unit whenever a search warrant for child
pornography files was to be executed. She said she
would brief tactical officers so they could determine
how entry would be made based on available
information. In this case, police decided to use a
“dynamic” or mechanical entry (no-knock), rather
than knocking on the door and announcing police,
because of the ease with which the evidence could
be disposed.
The judge accepted the reason for the no-knock
entry. She found the element of surprise by the
police was essential, given the nature of the
materials sought, and concluded that “[t]he risk that
the computer that contained the pornographic
images might be permanently compromised
warranted a no-knock entry.” The search was not
unreasonable, no s. 8 Charter breach occurred and
the accused was convicted of possessing child
pornography.

Ontario Court of Appeal
The accused submitted, among
other grounds, that the manner in
which the search was carried out
was not reasonable. Generally,
when the police execute a search warrant on a
person’s home they must knock, announce their
authority and announce the reason for entry. They
may, however, depart from the “knock and
announce” principle only in exigent circumstances,
including if there is a need to prevent the destruction
of evidence, to ensure the safety of the police or the
occupants or if in hot pursuit. In assessing the

PAGE 10

Volume 13 Issue 4 - July/August 2013

reasonableness of how a search was conducted, the
Ontario Court of Appeal noted the following
principles as outlined in R. v. Cornell, 2010 SCC 31:
•

When the police depart from the knock and
announce principle, the onus rests with the
Crown (police) to justify why they did so.

•

The search as a whole must be assessed in light
of all the circumstances.

•

The Crown must prove that the police had
reasonable grounds to be concerned about
issues of officer or occupant safety or the
destruction of evidence.

•

The Crown must demonstrate evidence that
existed at the time of the entry; it is prohibited
from relying on ex post facto justifications.

•

Courts must consider three things when
assessing whether a search was conducted in a
reasonable manner
1. the police decision to enter must be judged
by “what was or should reasonably have
been known to them at the time, not in
light of how things turned out to be”;

Here, the accused submitted that the Crown failed
to adduce any evidence capable of supporting the
use of a no-knock. He suggested that the police
needed information specific to the residence or its
inhabitants to justify such an entry. Rather than
requesting the assistance of the tactical unit based
on an individualized assessment, he argued that the
police were relying on a blanket policy. In his view,
there was no urgency, the police had been in
possession of the information on which they acted
for some time and there was no articulated concern
in the ITO about violence or the presence of
weapons. As well, the police had earlier used a ruse
to attend at the accused’s premises and they knew
he appeared to live alone in a one bedroom
apartment on a ground floor and had no prior
criminal record. He also highlighted the notion that
a person’s home and computer are two most
intimate places.
Justice Weiler, delivering the Court of Appeal’s
decision, found the lead investigator’s evidence that
digital files may be quickly rendered inaccessible
and easily destroyed warranted, as held by the trial
judge, the element of surprise accompanying a noknock entry:

2. there is some scope available to the police
in deciding the manner in which they enter
the premises. The police “cannot be
expected to measure in advance with
nuanced precision the amount of force the
situation will require.” The role of the
reviewing court is to balance the rights of
suspects with the need for safe and effective
law enforcement; it is not to be a “Monday
morning quarterback”,
3. an appeal court must accord substantial
deference to the trial judge’s assessment of
the evidence and findings of fact. - “[T]he
question for the reviewing judge is not
whether every detail of the search, viewed in
isolation was appropriate. The question for
the judge … is whether the search overall, in
light of the facts reasonably known to the
police, was reasonable.” Further, the courts
should not attempt to micromanage the
police’s choice of equipment.

PAGE 11

… I do not agree that these individual tactics of
the police made the overall search
u n r e a s o n a b l e . Th e p o l i c e c o n c e r n f o r
destruction of evidence would not have ended
with the no-knock entry. The police did not
know whether the [accused] would be using his
computer at the time of entry, or if he would be
near his computer. They also did not know if he
would necessarily be alone in the apartment.
The police had a much better chance of
preventing destruction of the digital files by
having enough officers present that they could
simultaneously take control of the different
rooms in the apartment and the suspect, as well
as any possible visitors. It was also reasonable to
have additional officers stationed outside the
back and front of the apartment to ensure that
no one entered or attempted to leave the
apartment while the search warrant was being
executed. The warrant did not restrict the
number of persons permitted to access the
location of the search. [paras. 53-54]

Volume 13 Issue 4 - July/August 2013

“The police had a much better chance of preventing destruction of the digital files by
having enough officers present that they could simultaneously take control of the different
rooms in the apartment and the suspect, as well as any possible visitors.”
Nor did the tactics used in executing the warrant – a
swarm of heavily-armed police, some wearing masks
with their guns drawn – render the search
unreasonable:
In addition, I am not prepared to say that the use
of drawn weapons and masks rendered the
overall search unreasonable. The [accused]
acknowledged that it was apparent that the
persons in his apartment were the police. While
he was understandably extremely frightened by
the officers, there is no evidence that the police
used any gratuitous or spiteful violence towards
him. He was arrested and safely removed from
his residence within minutes of police entry. He
knew why the search was being carried out and
knew that the police were authorized to carry
out the search. The police left behind a copy of
the warrant in the [accused’s] apartment. [paras.
55]

was noted in Cornell, “A person without a criminal
record could destroy evidence as easily as a person
with a criminal record.” Plus, “the [accused’s] lack
of a prior criminal record would not provide
assurance to police that he would react peacefully
when confronted by police officers performing a noknock entry.”
The trial judge’s finding on the validity of police
entry was reasonable. The unannounced entry was
justified because of the risk that evidence (digital
files) could be destroyed. The no-knock entry did not
violate the accused’s rights under s. 8 of the Charter.
The police had legitimate concerns regarding the
destruction of evidence and the elements of surprise
and speed, which did not cease with entry, enabled
the team to sweep all the rooms almost
simultaneously and to quickly restrain the suspect.
There was no violence or unnecessary destruction of
property. The search was carried out in a reasonable
manner. The accused’s appeal was dismissed.

And further:
It may be that it is standard practice for the
tactical unit of the police force to conduct a
forced entry with guns drawn and with some
officers wearing masks. In the absence of a
concern for police safety, the element of
intimidation accompanying the use of masks and
drawn weapons may be unnecessary and is a
cause for judicial concern. However, I am
sensitive to Cromwell J.’s caution in Cornell,
that, “[h]aving determined that a hard entry was
justified, I do not think that the court should
attempt to micromanage the police’s choice of
equipment” ... . And as Cromwell J. made it
clear, the role of the reviewing court is limited to
assessing whether the search overall was
reasonable. [para. 58]

Complete case available at www.ontariocourts.on.ca

Analysis
The onus is on an accused to prove on a
balance of probabilities that a search was
unreasonable. The absence of a warrant
presumptively establishes unreasonableness. In
the case of a warrantless search, the Crown
then bears the burden of proving the search
reasonable. For a search to be reasonable
within the meaning of s. 8 of the Charter, the
search must be:

Furthermore, the police did not cause any deliberate
or unnecessary damage to the accused’s property,
other than minor damage to the front door, and they
did not seize any materials beyond those identified
in the ITO. The fact that the accused did not have a
prior criminal record did not alleviate police
concerns that he could readily destroy evidence. As

• authorized by law,
• the law itself must be reasonable,
and
• the search must be carried out in a
reasonable manner.

PAGE 12

Volume 13 Issue 4 - July/August 2013

HANDCUFFING	
 DURING	
 SAFETY	
 
SEARCH	
 COMPATIBLE	
 WITH	
 
INVESTIGATIVE	
 DETENTION	
 
R. v. Curry, 2013 ONCA 420
Six Toronto Anti-Violence Initiative
Strategy (TAVIS) officers decided to
d o a wa l k t h r o u g h a r o u n d a n
apartment located in an area with a
high crime rate. The area was known
for criminal gangs and violence, and a shooting had
occurred at the building nine days earlier. The
suspect in the shooting was described as a black
male with a slim build carrying a silver revolver. He
was wearing a black hoody and a grey hat with ear
flaps. One witness also described the suspect as
wearing his hair in dreadlocks. The TAVIS officers
were in uniform and arrived at about 10:46 pm. The
accused, in company two other males, exited from
the front doors of the building at about 10:48 pm.
All three were young black males with their heads
covered. Byfield had a black hood covering his head
and was carrying a red pouch or purse. Turner was
wearing a black toque and carrying a white plastic
shopping bag. The accused was wearing a grey hat
with ear flaps.
As the men walked to the curb of the driveway
where a taxi was parked, three police officers
followed. As Byfield opened the rear passenger door
and was about to get into the taxi an officer saw a
bulge at his waist. After a brief conversation the
officer heard another officer shout, “Check his
waistband.” Byfield’s outer shirt was lifted and the
butt of a silver handgun was seen tucked into his
waistband. The officer yelled “gun”. As this
occurred, another officer immediately grabbed
Turner, pulled him to the ground and drew his
firearm. Turner was handcuffed, searched and police
found a loaded handgun in his jacket pocket and 17
rounds of ammunition in a pant pocket. The accused
was also grabbed, taken to the ground and
handcuffed. A gun was found down the front of his
pants. All three men were subsequently arrested and
charged with a number of criminal offences,
including possession of a loaded restricted firearm.

Ontario Superior Court of Justice
The three accused argued they were
arbitrarily detained under s. 9 of the
Charter and subject to unreasonable
searches under s. 8. The judge found that
Byfield had not been detained until the officer took
physical control of him and lifted up his over-shirt.
The detention, however, was based on a reasonable
suspicion that justified a pat search for weapons. The
lifting up of Byfield’s over-shirt, while not technically
a “pat search”, was the functional equivalent of one.
No s. 8 Charter breach occurred. As for Curry and
Turner, they were not detained until the officers
heard “gun” and reacted by taking them to the
ground, handcuffing them and searching them for
w e a p o n s . Th e “ p r e l i m i n a r y i n v e s t i g a t i v e
questioning” that occurred before this did not
constitute detention. “I am satisfied, in all these
circumstances, that Curry was only asked the same
kinds of ‘exploratory’ questions as Turner and Byfield
were asked and that he was ‘delayed’ from entering
the taxi for less than a minute, … without engaging
s. 9 and s. 10 Charter rights,” said the judge. The
judge went on to hold that the officers believed
there was a reasonable suspicion (or reasonable
“possibility”) that Curry and Turner were armed with
a gun based on “objective grounds” and on a
“demonstrable rationale.” The officer “had
incomplete information and she was suddenly in a
dangerous situation requiring an immediate
decision,” said the judge. “She had sufficient
grounds, in my opinion, to briefly detain Curry and
conduct a pat search for weapons.” Neither Turner
nor Curry had their ss. 8 or 9 Charter rights
infringed.
The judge also rejected Turner and Curry’s argument
that forcefully throwing them to the ground,
followed by handcuffing, was not a common law
detention but rather an arrest. The judge ruled that,
in this case, taking Curry and Turner to the ground
did not indicate a “de facto arrest” but rather an
exercise of the common law duty “to protect life”.
“A quick pat search for weapons, as in the present
case, is entirely compatible with a common law
detention,” said the judge. “Furthermore, briefly
handcuffing a suspect to safely enable a pat search
for weapons and/or to prevent flight has been held

PAGE 13

Volume 13 Issue 4 - July/August 2013
to be compatible with a common law detention. …
[T]he police were, in reality, exercising common law
powers of investigative detention and not statutory
powers of arrest.” Since there were no Charter
violations there was no need to consider s. 24(2).
However, had there been Charter breaches, the
evidence would have been admissible. All three men
were convicted.

Circumstances Justifying Byfield’s
detention & triggering the cascading
events:
1. He had a surprised or shocked look on his face

when he first saw the police;
2. He then avoided eye contact with the police, when

he walked past;
3. He shifted the right side of his body away from the

Ontario Court of Appeal
The accused Curry appealed his
conviction arguing the police
arrested him when they took him
to the ground and handcuffed him,
thereby breaching s. 9 of the Charter and unlawfully
searched him in breach of s. 8. But the Court of
Appeal disagreed, upholding the trial judge’s ruling
that the accused was not prevented by police from
entering the taxi and therefore was not detained at
that point. Also, the Court of Appeal agreed with the
trial judge that when the police took the accused to
the ground, they were acting in the exercise of their
common law duty to protect life:

police, pulling his right shoulder back and
quickening his pace;
4. He moved his right hand to his waist area and

adjusted something near the right side of his groin;
5. He was coming out of a building where there had

been a shooting in the previous week and it was in
a high crime area;
6. After reaching the taxi, he was very nervous and

continued to keep the right side of his body away
from the officer;
7. As he opened the taxi door and went to get in,

the officer saw a bulge at his waist, underneath his
baggy over-shirt; and
8. Another officer approached and told the officer to

The take down of the [accused] occurred after a
police officer observed a gun in the possession
of one of the [accused’s] co-accused and
shouted a warning to the other police officers.
The officers attending to the [accused] did not
know who had the gun. Their decision to take
the [accused] to the ground after they heard the
word “gun” shouted out by a fellow officer was
made in a volatile and rapidly evolving situation.
In the circumstances, this decision was both
eminently reasonable and a lawful exercise of
the officers’ common law detention power.
[para. 6]

“check his waistband”.
What the trial judge said:

Finally, the trial judge did not err in finding that the
subsequent handcuffing and search of the accused
were carried out pursuant to the police common law
power of investigative detention. The police conduct
in this case did not breach ss. 8 or 9 of the Charter.
The accused’s conviction appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional facts taken from R. v.
Byfield, 2012 ONSC 2781

Some of the above circumstances relied on by the
police, had they stood alone, would be neutral. For
example, the fact that Byfield avoided eye contact,
walked away, and was nervous cannot carry much
incriminating weight. However, the other
circumstances provided “objective grounds” and a
“demonstrable rationale” for belief that the accused
was “possibly” armed with a concealed weapon.
Furthermore, the officers’ impressions or conclusions
were supported by objective facts and by their
training. It is the “totality” or the “whole” of the
facts relied on by the officers that must be
assessed, rather than dissecting each observation in
isolation.
I am satisfied that the totality of the
eight circumstances relied on by [the
officer] amounted to “reasonable
suspicion”, at common law, justifying a
brief detention and a pat search for
weapons. ... [paras. 80-81]
see R. v. Byfield, 2012 ONSC 2781

PAGE 14

Volume 13 Issue 4 - July/August 2013

2012	
 POLICE	
 REPORTED	
 CRIME
In July 2013 Statistics Canada
released its “Police reported
crime statistics in Canada,
2012” report. Highlights of this
recent collection of crime data
include:

Police-Reported Impaired Driving Offences
Province

Rate

Impaired Driving
Offences

Rate change
2011 to 2012

SK

725

7,834

+7%

AB

417

16,156

-5%

NF

361

1,852

+1%

PEI

329

480

-33%

BC

311

14,395

-24%

• the total crime rate dropped -3%. This includes a
violent crime rate drop of -3% and a property
crime rate drop of -3%.

MB

297

3,761

-7%

NB

288

2,176

-3%

Source: Statistics Canada, 2013, “Police-reported crime statistics in
Canada, 2012”, Catalogue no. 85-002-X,released on July 23, 2013.

NS

284

2,693

-13%

QC

206

16,575

-2%

ON

127

17,169

-1%

• there were 1,949,160 crimes (excluding traffic)
reported to Canadian police in 2012; this
represents 35,630 fewer crimes reported when
compared to 2011.

Police-Reported Crime Severity Indexes

T=Total Crime Severity Index
V=Violent Crime Severity Index
NV=Non-Violent Crime Severity Index

YK
T-156.7
V-163.9
NV-153.8

NWT
NU

T-341.0
V-356.6
NV-334.6

T-325.6
V-470.5
NV-272.2

BC

AB

SK

MB

T-93.4
V-89.3
NV-94.6

T-85.6
V-88.0
NV-84.5

T-139.0
V-134.0
NV-140.6

T-112.4
V-153.7
NV-97.2

NF
T-69.6
V-65.9
NV-70.8

QC
ON

PEI

T-70.7
V-75.3
NV-68.9

T-72.6
V-45.1
NV-82.5

T-58.4
V-69.5
NV-54.3

NS
NB

The Crime Severity Index (CSI) is another measure of police-reported crime.
Each offence is assigned a weight, derived from sentences handed down by
criminal courts. The more serious the average sentence, the higher the offence is
weighted. The weighted offences are then summed and divided by the population.
An overall CSI has been created as well as a violent CSI and non-violent CSI.

PAGE 15

T-68.4
V-65.7
NV-69.3

T-76.5
V-78.0
NV-75.8

Volume 13 Issue 4 - July/August 2013

Police-Reported Crime Rates per 100,000 population

YK
20,717
+1%

NWT
48,052
+1%

NU
39,229
+3%

NF
6,196
-3%

Canada
5,588
-3%

BC
7,727
-2%

AB
7,262
-2%

SK
11,513
-7%

MB
8,809
-2%

ON
4,016
-4%

QC
4,316
-3%

NB
5,519
+4%

Homicide
There were 543 homicides reported, 55 less than the
previous year. Ontario had the most homicides at
162, followed by Quebec (108), Alberta (85), and
British Columbia (71). The Yukon reported no
homicides while Newfoundland only reported three
homicides followed by the Northwest Territories and
Nunavut at five each. As for provincial or territorial
homicide rates, Nunavut had the highest rate (14.8
per 100,000 population) followed by the Northwest
Territories (11.5), Manitoba (4.1), Saskatchewan (2.7)
and Alberta (2.2). As for Census Metropolitan Areas
(CMA’s), Thunder Bay, ON had the highest homicide
rate at 5.8. The Canadian homicide rate was 1.6.
Top CMA Homicide Rates per 100,000

PEI
6,524
+4%
NS
6,329
-2%

Canada’s Top Ten Reported Crimes
Offence

Number

Theft Under $5,000 (non-motor vehicle)

496,781

Mischief

305,520

Administration of Justice Violations

180,652

Break and Enter

175,712

Assault-level 1

169,996

CMA

Rate

CMA

Rate

Thunder Bay, ON

5.8

Abbotsford-Mission, BC

2.2

Disturb the Peace

112,513

Winnipeg, MB

4.1

Saskatoon, SK

2.1

Impaired Driving

84,483

Regina, SK

3.1

Gatineau, QC

1.9

Fraud

78,433

Halifax, NS

2.9

London, ON

1.6

Theft of Motor Vehicle

77,939

Edmonton, AB

2.7

Peterborough, ON

1.6

Saguenay, QC

2.7

Vancouver, BC

1.5

Uttering Threats

70,383

PAGE 16

Volume 13 Issue 4 - July/August 2013

Robbery

Top Ten CMA Robbery Rates per 100,000

In 2012 there were 27,680 robberies reported,
resulting in a national rate of 79 robberies per
100,000 population. Manitoba had the highest
robbery rate followed by Saskatchewan, British
Columbia and Ontario.

Police-Reported Robberies
Province/
Territory

Rate

Robberies

Rate change
2011 to 2012

MB

168

2,130

-5%

SK

96

1,036

-7%

BC

98

4,508

-1%

ON

79

10,736

-8%

QC

72

5,783

-15%

AB

69

2,675

-11%

NS

46

441

-6%

YK

30

11

-17%

NU

18

6

NWT

53

NF

CMA

Rate

CMA

Rate

Winnipeg, MB

240

Toronto, ON

118

Saskatoon, SK

162

Thunder Bay, ON

100

Vancouver, BC

132

Edmonton, AB

96

Regina, SK

124

Kelowna, BC

88

Montreal, QC

119

Abbotsford-Mission, BC

88

Break and Enter
In 2012 there were 175,712 breakins reported to police. The national
break-in rate was 504 break-ins per
100,000 people. The Nunavut had
the highest break-in rate (1,846)
followed by Northwest Territories (1,520).

Police-Reported Break-ins
Province/
Territory

Rate

Break-ins

Rate change
2010 to 2011

-50%

NU

1,846

622

+14%

23

+56%

NWT

1,520

659

-11%

28

142

+29%

SK

790

8,532

-8%

NB

22

164

+18%

MB

731

9,263

-1%

PEI

17

25

+47%

BC

650

30,028

no change

CANADA

79

27,680

-8%

QC

573

46,125

-9%

PEI

571

834

+20%

YK

568

205

+5%

NF

545

2,792

-11%

NS

508

4,824

+1%

AB

499

19,343

+2%

NB

480

3,630

+7%

ON

362

48,855

-5%

CANADA

504

175,712

-4%

• Winnipeg, MB had the highest CMA
rate of robbery in Canada (240),
-7% lower than its 2011 rate. Kingston,
ON had the lowest rate (22). Three CMAs
reported jumps of more than 30% in robbery
rates; Guelph, ON (+51%), St. John’s, NF (+47%)
and Sherbrooke, QC (+32%).
• Three CMAs reported declines in robberies of
-30% or more; Barrie, ON (-38%), Greater
Sudbury, ON (-36%) and Thunder Bay, ON
(-30%).

PAGE 17

Volume 13 Issue 4 - July/August 2013
• Break-ins accounted for about 15% of all
property crimes.
• Break-ins dropped -4% from the previous year.
• There was one break-in every three (3) minutes.
• Residential break-ins dropped -7% while
business break-ins declined -11%.
• From 2002 to 2012, the break-in rate dropped by
-43%.
• Among CMAs, Brantford, ON reported the
highest break-in rate (743) while Toronto reported
the lowest (256). Only four CMA’s reported
double digit increases in their break-in rate Brantford, ON (+21%), Moncton, NB (+17%),
Kelowna, BC (+14%) and Guelph, ON (+10%) while 10 CMA’s all reported double digit drops
including Thunder Bay, ON (-30%), Halifax, NS
(-21%), Greater Sudbury, ON (-21%), Trois
Rivieres, QC (-20%), Quebec, QC (-20%),
Kingston, ON (-19%), Saguenay, QC (-17%),
Abbotsford-Mission, BC (-12%), Regina, SK
(-11%) and London, ON (-10%).
Top Ten CMA Break-in Rates per 100,000

Trafficking, Production & Distribution
Offences by Drug Type

Other drugs
Cannabis
Cocaine

• Trafficking, production, and
distribution offences totaled
22%
33,518 - cannabis (15,674); 31%
cocaine (10,553); and other
drugs (7,291).
47%
• British Columbia had the
highest drug related offence
rates of all 10 provinces for cannabis while
Saskatchewan topped the list for cocaine and
Prince Edward Island was tops for other drugs.
Drug-related Crime Rates by Province
per 100,000 population
Province

Cannabis
rate

Cocaine
rate

Other
drugs rate

BC

382

94

74

SK

319

172

72

NS

251

37

49

CMA

Rate

CMA

Rate

AB

191

77

35

Brantford, ON

743

Winnipeg, MB

644

QC

184

26

64

St. John’s, NL

717

Trois-Rivieres, QC

599

NB

172

36

49

Vancouver, BC

696

Greater Sudbury, ON

596

NF

167

41

68

Regina, SK

679

Gatineau, QC

578

ON

164

38

42

Saskatoon, SK

657

London, ON

589

MB

153

78

30

PEI

127

27

86

Drugs

Possession Offences
by Drug Type

In 2012 there were 109,455
drug-related offences coming to
the attention of police. These
offences included possession,
trafficking, production
or distribution.
• possession offences
accounted for 75,937 of
these crimes - cannabis
(57,429); cocaine (7,847);
and other drugs (10,661).
Other drugs include
heroin, crystal meth, and ecstasy.

• The territories continue to have some of the
highest drug-related crime rates in Canada.

10% 14%
Territory

76%

Other drugs
Cannabis
Cocaine

Cannabis
rate

Cocaine
rate

Other
drugs rate

NWT

1,061

238

72

NU

1,148

18

42

YK

343

141

42

• Overall, drug offences were down in 2012 (-5%)
from 2011.

PAGE 18

Volume 13 Issue 4 - July/August 2013

Motor Vehicle Theft

Top Ten CMA Vehicle Theft Rates per 100,000

In 2012 there were 77,939 motor vehicle thefts
reported to police, down -7% from 2011 and down
-57% from a decade ago.
• on average there was one motor vehicle theft
every seven minutes.
• the motor vehicle theft rate was 223 per 100,000
population.
• the most vehicles reported stolen was in Quebec
(20,820) while the Yukon had the fewest vehicles
stolen (147).

Police-Reported Motor Vehicle Thefts
Province/
Territory

Rate

Motor Vehicle
Thefts

Rate change
2011 to 2012

NU

466

157

+5%

NWT

457

198

-7%

YK

407

147

+25%

SK

401

4,327

-15%

AB

356

13,799

-1%

MB

294

3,725

-5%

BC

272

12,584

-5%

QC

258

20,820

-8%

NB

151

1,143

-6%

ON

141

19,047

-9%

NS

140

1,327

+2%

PEI

109

159

NF

99

CANADA

223

CMA

Rate

CMA

Rate

Regina, SK

473

Calgary, AB

323

Kelowna, BC

433

Hamilton, ON

318

Brantford, ON

423

Montreal, QC

312

Saskatoon, Sk

364

Winnipeg, MB

301

Edmonton, AB

326

Vancouver, BC

294

• Eight CMAs saw an increase in their motor
vehicle theft rates; Windsor, ON (+30%),
Peterborough, ON (+14%), Greater Sudbury, ON
(+12%), Ottawa, ON (+9%), Kingston, ON
(+2%), and Calgary, AB, Victoria, BC and
London, ON all +1%.

MOST	
 POPULAR	
 AUTO	
 THEFT	
 
TARGETS
On December 13, 2012 the Insurance Bureau of
Canada released its annual list of the most frequently
stolen vehicles in Canada. According to the report
there is an increasing involvement of organized
crime in auto theft as evidenced by the appearance
of all-terrain vehicles on the list.

TOP 10 STOLEN AUTOS - Canada 2012
YR

MAKE

MODEL

1

2000

Honda

Civic SiR 2-door

2

1999

Honda

Civic SiR 2-door

3

2006

Chevrolet

TrailBlazer SS 4-door 4WD

+28%

4

2007

Ford

F350 SD 4WD PU

506

-15%

5

2005

Cadillac

Escalade 4-door AWD

77,939

-7%

6

2006

Ford

F350 SD 4WD PU

7

2002

Cadillac

Escalade 4-door 4WD

8

2005

Ford

F350 SD 4WD PU

9

2004

Ford

F350 SD 4WD PU

10

1999

Acura

Integra 2-door

• Most CMAs reported declines in motor vehicle
thefts. Several reported double digit decreases
including Abbotsford-Mission, BC (-38%),
Saskatoon, SK (-37%), Thunder Bay, ON (-31%),
Saguenay, QC (-25%), Guelph, ON (-23%), TroisRivieres, QC (-20%), Brantford, ON (-19%),
Barrie, ON (-18%), Kitchener-CambridgeWaterloo, ON (-17%) and St. John’s, NF (-15%).

Source: Insurance Bureau of Canada www.ibc.ca

PAGE 19

Volume 13 Issue 4 - July/August 2013

ODOUR	
 PLUS	
 PROVIDES	
 
REASONABLE	
 SUSPICION	
 FOR	
 
ASD
R. v. Mitchell, 2013 MBCA 44
At about 2:00 am a police officer
pulled a vehicle over after seeing it
being driven without its headlights
on. The accused was driving and
there were three passengers. The
officer noted the accused had “slightly glassy eyes”
and there was a “smell ... of alcohol from inside the
vehicle.” When asked if he had any alcohol to drink,
the accused said, “Yeah, a couple of beers at a
friend’s house, earlier.” But the officer did not ask
when the accused had been drinking, whether the
passengers in the vehicle had been drinking nor
when the drinking had begun or stopped. An
approved screening device (ASD) demand under s.
254(2) of the Criminal Code was made and the
accused failed at the roadside. He was arrested and
a breathalyzer demand was given. He was taken to
the police station and readings of 110mg% were
obtained. He was charged with driving over 80mg%

Manitoba Provincial Court
The trial judge found that the accused’s
s. 8 Charter rights had been breached
because the threshold for a reasonable
suspicion under s. 254(2) (ASD demand),
although very low, was not satisfied by
the simple admission of having consumed alcohol.
In his view, the officer should have done a more
thorough investigation. “Absent the accused’s
admission that he had consumed alcohol at some
point on that particular day, it is very difficult for the
court to draw the conclusion ... subjectively, that the
officer should have had reasonable suspicion this
individual had alcohol in his body at the material
time,” he said. “The observations of the officer at the
time of the stop required, at least in my view, a
further investigation and not ... the decision of the
officer to leap directly to an approved screening
device because there was alcohol somewhere within
that automobile.” The judge nevertheless admitted

the breath samples under s. 24(2) and convicted the
accused of driving while over 80mg%.

Manitoba Court of Queen’s Bench
The appeal judge agreed that the
accused’s s. 8 Charter rights had been
breached and the officer could have done
a better investigation by making enquiries
into his drinking history. “The smell of alcohol from
inside the vehicle could clearly have been coming
from its other occupants with [the accused] simply
acting as the designated driver,” said the appeal
judge. “This must all be evaluated in the context of
the constable’s stopping the vehicle, attending at the
driver’s window, securing [the accused’s] driver’s
license/vehicle registration, and making the
determination to conduct the ASD test all within the
passage of three minutes or less.” The appeal judge,
however, excluded the breath samples as evidence
and entered an acquittal.

Manitoba Court of Appeal
The Crown contended that the trial
judge and the appeal judge both
erred in finding that the accused’s
s. 8 rights had been breached. In
its view, the accused’s admission of alcohol
consumption by itself was sufficient to provide
objective grounds for an ASD demand and that there
was no requirement to do a follow-up investigation
about drinking history. In addition, the Crown
submitted the officer had more than a mere
admission of alcohol consumption. The vehicle did
not have its lights on and there was an odour of
alcohol emanating from it. The accused, on the other
hand, suggested that when he said he had two beers
earlier, his answer was a qualified, ambiguous one.
Without further clarification as to when he was
drinking or other indicia of consumption, there were
insufficient grounds to justify the ASD demand.
After considering the important investigatory
function and purpose of the ASD, Justice Monnin,
writing the Court of Appeal’s opinion, considered
the meaning of the words “reasonable grounds to
suspect that a person has alcohol … in their body”

PAGE 20

Volume 13 Issue 4 - July/August 2013
as found in s. 254(2). Citing earlier case law, Justice
Monnin noted the following:
•

•

•

There are two components to reasonable
grounds – whether the police officer had a
subjective belief, honestly held, that he had
reasonable grounds to demand a breath
sample and whether a reasonable person in
the position of the police officer would
conclude that there were reasonable grounds
for the demand;
In weighing the evidence, the court should
take into account the totality of the
circumstances known to the police officer
and should not examine and test each piece
of evidence and each factor individually;
The question is not whether the facts,
circumstances and inferences ultimately
prove to be true, but whether it was
reasonable for the police officer to believe, at
the time, that the facts and circumstances
were true, to draw the inferences that were
drawn and to rely on them at the time of the
breathalyzer demand;

•

Reasonable grounds to suspect is a less
demanding standard than reasonable grounds
to believe;

•

Reasonable suspicion requires only that the
belief be one of a number of possible
conclusions based on the supporting facts,
not a probability.

BY THE BOOK:
Testing	
 for	
 presence	
 of	
 alcohol: Criminal Code
s. 254(2) If a peace officer has reasonable
grounds to suspect that a person has alcohol or
a drug in their body and that the person has,
within the preceding three hours, operated a
motor vehicle or vessel, operated or assisted in
the operation of an aircraft or railway equipment or had the
care or control of a motor vehicle, a vessel, an aircraft or
railway equipment, whether it was in motion or not, the
peace officer may, by demand, require the person to
comply with paragraph (a), in the case of a drug, or with
either or both of paragraphs (a) and (b), in the case of
alcohol:

...

(b) to provide forthwith a sample of breath that, in the
peace officer’s opinion, will enable a proper analysis to be
made by means of an approved screening device and, if
necessary, to accompany the peace officer for that purpose.

In this case, the Court of Appeal found there was
more than the mere admission of alcohol
consumption by the on which to assess the objective
element of a reasonable suspicion under s. 254(2):
I am not prepared to go as far as saying that a
simple admission of alcohol consumption by a
driver is, in and of itself, sufficient to provide
reasonable grounds on which to base an ASD

demand, as each case must be considered on its
own facts. From a common sense perspective,
however, it would be rare, if ever, that there
would be an admission of alcohol consumption
with nothing else – i.e., evidence as to why the
vehicle was stopped, when (especially the time
of the day and of the year) and where it was
stopped, what was the driver’s condition, how
did he or she react to the police, what were the
driver’s exact words and how were they spoken,
etc. These are all important factors to take into
account. It is important to remember that it is the
totality of the circumstances known to the
officer, viewed together, that must be considered
in determining whether there was a reasonable
basis for his or her suspicion. Each indicia or
piece of evidence is not to be examined in
isolation.

“It is important to remember that it is the totality of the circumstances known to the officer,
viewed together, that must be considered in determining whether there was a reasonable
basis for his or her suspicion. Each indicia or piece of evidence is not to be examined in
isolation.”
PAGE 21

Volume 13 Issue 4 - July/August 2013

CONFIDENTIAL	
 INFO	
 +	
 
OBSERVATIONS	
 &	
 INFERENCES	
 
PROVIDE	
 GROUNDS

In this case, the trial judge might have found the
manner in which the officer conducted his
investigation to be wanting, but the facts remain
that the accused was driving at night, on a busy
thoroughfare, without lights, that there was an
odour of alcohol emanating from the car and the
accused, in answer to a legitimate question in
the circumstances, acknowledged that he had
consumed alcohol. ... Both the trial judge and
the appeal judge erred by focussing on the
words of the accused’s admission without
considering them in the context of all of the
evidence known to the officer. In so doing, each
misapplied the applicable legal principles,
thereby committing an error of law. In my view,
after considering all of the evidence known to
the officer, he had reasonable grounds to make
the ASD demand when he did. It was an error in
law by the appeal judge to find otherwise.

R. v. Fortune, 2013 ONCA 421

For the reasons I have already stated, rarely will
there be a need for a police officer to obtain an
alcohol consumption history from a driver. That
is not what the legislation requires or what was
intended by it. As explained earlier, the purpose
of s. 254(2) is to provide an investigative tool
that briefly detains a driver with minimum
inconvenience and intrusion. [paras. 35-37]

The appeal judge erred in finding a s. 8 Charter
breach. The police met the statutory “reasonable
suspicion” standard for making the ASD demand.
The accused’s conviction at trial for driving over
80mg% was reinstated.
Complete case available at www.canlii.org

British Columbia Police & Peace
Officers’ Memorial Service

A police officer received
information from a number of
confidential informants and one
anonymous tipster that the accused
wa s s e l l i n g h e r o i n f r o m h i s
residence. A telewarrant under the Controlled Drugs
and Substances Act (CDSA) was applied for and
granted. The ITO covered a nine month period and
included information about several heroin purchases
from the accused at his residence. Each of the
informants was a heroin user or addict with previous
convictions and a familiarity with the drug trade. At
least two of them had provided information to
police on prior occasions which resulted in the
arrests of several people and a conviction of one of
those arrested for a trafficking offence involving
heroin. As well, the ITO contained information from
another confidential informant and an anonymous
tipster that the accused and his girlfriend were
selling heroin from their apartment in August 2009.
This information was consistent with previous
source information so police surveilled the
accused’s residence. Shortly after a suspected heroin
supplier met with the accused, vehicular and foot
traffic to his residence increased with visitors
remaining for only a few minutes. Upon executing
the warrant, police located 4.39 grams of heroin,
over $3,000 cash and trafficking paraphernalia,
including a scale, tin foil and nearly six dozen
baggies.

Ontario Court of Justice

Sunday, September 29th, 2013
British Columbia Legislature
Victoria, BC
Note-able Quote
“Punishment is the last and the least effective
instrument in the hands of the legislator for the
prevention of crime.” - John Ruskin

The accused challenged the validity of
the search warrant arguing there was
insufficient information upon which the
justice of the peace (JP) could have
granted the warrant. The judge, noting that he was
not to substitute his own view for that of the issuing
JP, found there was reliable evidence in ITO that
might reasonably be believed and sufficient to
support the granting of the search warrant for heroin
was in the residence. The accused was convicted of

PAGE 22

Volume 13 Issue 4 - July/August 2013
possessing heroin for the purpose of trafficking and
possessing proceeds of crime. He was sentenced to
two years less a day and probation for three years, a
10-year weapons prohibition and forfeiture of the
money and drug paraphernalia seized.

PROPER	
 CONSIDERATIONS	
 FOR	
 
VOLUNTARINESS	
 OWED	
 
CONSIDERABLE	
 DEFERENCE

Ontario Court of Appeal

After a 35-year-old woman was
found strangled in her home, the
accused was arrested for murder, but
later released without being
charged. The deceased and the
accused had a daughter together and were living
with each other (along with the accused’s father) for
a month following a lengthy separation. Although
not charged with murder, the accused was charged
with breaching a provision of an undertaking for
having contact with the deceased. The undertaking
pertained to charges of assault that had been laid
against the accused several months earlier. He plead
guilty to the breach charge, was given a short seven
day jail sentence and reported to a probation officer
upon his release. The probation officer told the
accused that she wished to review the bail order and
the peace bond with him, and asked him why he
had breached the no-contact order by attending the
deceased’s residence. He told the probation officer
that he had gone to his daughter’s birthday party,
decided to stay overnight (which was demonstrably
untrue because he was living there) and, when he
woke in the morning, he found the woman dead
beside him on the bed. He also told the probation
officer that he took his daughter into another room
to watch a video and asked his father to call
paramedics and police. He was subsequently
charged with first degree murder.

The accused argued that the ITO
only supported a reasonable
suspicion that heroin might be
present in his home and did not
rise to the level of a credibly-based probability, the
standard required for the issuance of a CDSA search
warrant. In his view, (1) his reputation as a suspected
heroin dealer, (2) the appearance of an alleged but
unconfirmed heroin supplier at his home and (3)
increased vehicular and foot traffic at his home after
the alleged heroin supplier left were, neither alone
nor in combination, sufficient factors capable of
establishing the credibly-based probability that
heroin would be found.
The Ontario Court of Appeal, however, disagreed.
“The ITO included information from four different
confidential informants, as well as an anonymous
tipster, along with the results of various police
investigations and physical surveillance of the
[ a c c u s e d ’s ] r e s i d e n c e a n d a c t i v i t i e s
contemporaneous with his arrest on August 26,
2009,” said the Court. “[I]t was open to the justice of
the peace to conclude from a consideration of the
contents of the redacted ITO, together with
reasonable inferences arising from that information,
that there were reasonable grounds to believe that
the [accused] was trafficking in heroin from his
residence on August 26, 2009, and that a search of
the premises would yield the drug, assorted
paraphernalia associated with trafficking, and the
proceeds of trafficking activity.” The reviewing judge
properly concluded that the ITO contained sufficient
reliable information on the basis of which the
telewarrant could have issued, the search did not
breach s. 8 of the Charter and the items seized were
properly admitted in evidence.
The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

R. v. Benham, 2013 BCCA 276

British Columbia Supreme Court
During a voir dire to determine the
admissibility of the accused’s statement
to the probation officer, the judge ruled
that the probation officer was not a
person in authority such that the Crown was
required to establish beyond a reasonable doubt that
the statement was voluntary. In the judge’s view,
there was no evidence as to the accused’s
understanding of the probation officer’s role nor
whether he believed she had some ability to
influence the investigation or prosecution of a
murder charge.

PAGE 23

Volume 13 Issue 4 - July/August 2013
At the time the statement was made, the accused
was not charged with murder nor did the probation
officer play a role in the investigation or prosecution
of any crimes other than the breaches. Furthermore,
even if the probation officer was a person in
authority, the statement was nonetheless voluntary.
There were no inducements (threats or promises) nor
any oppressive circumstances. As well, when the
accused made his statement he was not charged
with murder, the probation officer was not
conducting an interview in relation to the death and
the accused was aware of his rights because he had
talked to his lawyer and received advice. The judge
also found the accused “clearly had an operating
mind.” The Crown had proven voluntariness beyond
a reasonable doubt and the statement was
admissible. As a result of this evidence, along with
other circumstantial evidence including significant
forensic evidence, the accused was convicted of
second degree murder.

British Columbia Court of Appeal
The accused contended, among
other grounds, that the trial judge
erred in admitting his statement
made to the probation officer. In his
view, the evidence overwhelmingly supported the
fact that he subjectively believed he was required to
answer the probation officer’s questions and that he
believed she had a role to play in the murder
investigation and prosecution. Since he was not told
he was free to refuse to answer the probation
officer’s questions, he suggested a reasonable doubt
existed about whether his responses were
voluntary. The Court of Appeal, however, disagreed.
Justice Frankel, writing the Court’s opinion, first
found it unnecessary to determine whether the
probation officer was a person in authority.
Assuming she was, the trial judge did not err in
finding the accused’s statement voluntary. Provided
judges properly instruct themselves on the law
regarding voluntarines and the factors to consider in
determining the issue, they are owed considerable
deference to their findings. In this case, the Court of
Appeal was not entitled to re-weigh the evidence
and come to a different conclusion. The trial judge’s
findings were open to her on the evidence.
Complete case available at www.courts.gov.bc.ca

WARRANTLESS	
 ENTRY:
OBJECTIVE	
 BASIS	
 MUST	
 
SUPPORT	
 SUBJECTIVE	
 BELIEF	
 
R. v. Jones, 2013 BCCA 345
A mother called 911 and asked for
an ambulance after her visiting
daughter, who was bipolar, refused
to leave the house when asked to do
so. While her daughter remained in
the house, the mother went outside and waited in
her vehicle for the ambulance to arrive. The
ambulance requested police attendance. An officer
was dispatched to a “mental health issue between a
daughter and a mother” and told the daughter was
“freaking out.” When the officer arrived, the mother
was outside sitting in her vehicle. She confirmed her
daughter was the only person in the house. She said
her daughter was upstairs “freaking out” and wanted
her removed. She gave the officer a key to the
residence and waited in her vehicle. She did not
give the officer permission to search the house and,
if asked, would have refused entry for that purpose.
The officer waited five minutes for back-up and
nothing untoward was noted during this time.
The officer entered the house and saw the daughter
sitting on the stairs. She was quite passive and left
the residence when asked without incident. When
asked if anyone else was in the house, she said no.
When it became clear the officer intended to look
around in the house she told him her mother would
not want him to do so and he should ask her
permission. Although there was no indication of
criminal activity or the presence of someone else in
the house, the officer decided to search the
residence because (1) there was a policy to enter at
911 calls and clear the residence, making sure the
situation was fully investigated and (2) to ensure that
everything was “all right” and there was no one else
in the residence who was either injured or in
distress. During the 15-minute search, the officer
found a marihuana grow operation contained in
three rooms of the house. A warrant was obtained
and executed. Police recovered 413 marihuana
plants and 788 grams of dried marihuana. The
mother (accused) was subsequently charged with
drug offences.

PAGE 24

Volume 13 Issue 4 - July/August 2013

British Columbia Supreme Court
The accused argued that the warrantless
search of her home breached her s. 8
Charter rights. The Crown, on the other
hand, submitted (1) the police had
express or implied permission to enter and search
the residence, (2) under the circumstances the
accused had no reasonable expectation of privacy
and (3) the search was justified under the general
common law power that enables the police to
search premises without a warrant where there are
public safety concerns. The trial judge rejected the
Crown’s first two suggestions. The accused had not
given the police permission to search her home,
only access limited to locating and removing her
daughter. Once this was accomplished, the accused
maintained her expectation of privacy within her
home. The judge did, however, find that police
could forcibly enter a private dwelling where there
were safety concerns regarding the occupants or the
public. Although not every 911 call will lead to a
situation in which the police have the authority to
search a residence, in the circumstances of this case,
the judge found the officer’s actions were
reasonable. The judge said he “was justified in
continuing a search of the premises to determine
that there were no other persons involved in the
situation who needed assistance, and that there were
no other hazards in the house that had occurred as a
result of the mental health episode that the accused
said had occurred.” The evidence was admissible
and the accused was convicted of producing
marihuana and possessing marihuana for the
purpose of trafficking.

view. There was no evidence that anyone else was in
the home, injured or needed assistance. The Crown,
to the contrary, asserted that the officer acted within
the permissible scope of his duties. He was not
required to be certain of a risk before entering. In its
opinion, lack of information may be a compelling
reason to justify police entry and the officer’s search
was minimally intrusive. He entered only to see if
anyone needed help, did not use force and his
search was quick and efficient.

Forcible Entry
Citing the Supreme Court of Canada’s judgment in R.
v. Godoy, [1999] 1 S.C.R. 311, Justice Neilson,
speaking for the Court of Appeal, noted “the police
have a common law duty to protect the public from
health and safety risks in responding to [911]
emergency calls, and the performance of that duty
may, in some circumstances, permit them to forcibly
enter and search private premises without authority.”
However, whether a warrantless search is justified
will depend on the circumstances of the individual
case. Although Justice Neilson acknowledged that
the importance of protecting life and safety will
require the police to err on the side of caution, the
correct standard to apply is objective. There must be
a reasonable basis for a police officer’s subjective
belief that a public safety concern requires a search.
In this case, the trial judge erred in holding that
there was an objective basis to support the officer’s
search:
•

British Columbia Court of Appeal
The accused challenged the trial
judge’s ruling. She argued the
search of her residence was not
justified by the common law police
power to conduct searches related to public safety
concerns. In her view, the standard for determining
whether the officer’s entry into her home was
justified was objective; it must be both necessary
and reasonable for public protection. She suggested
that the trial judge applied a lower standard - a
“possibility” of a public safety risk relying only on
the officer’s subjective view of risk, not an objective

•

•

•

PAGE 25

There was no suggestion of criminal activity in
the 911 call - an ambulance, not police, was
requested;
The call did not reveal any precise safety threat
or risk. The information ‒ a “mental health
issue” and a daughter “freaking out” ‒ was
nebulous.
Nothing on the officer’s arrival indicated
exigent circumstances. He waited several
minutes for back-up to arrive and, during that
time, neither saw nor heard anything to
indicate immediate action was required.
When the officer approached the house, no
mental health risk emerged. He immediately
located the daughter just inside the front door

Volume 13 Issue 4 - July/August 2013

•

•

and observed nothing else of concern in the
house. She was passive and cooperative, came
out without protest, answered his questions
lucidly and told him her mother would not
want him to search the house.
Several “possibilities” enumerated by the trial
judge to justify the search were speculative and
there was no evidence to objectively support
them. These possibilities included (1) there may
have been other persons involved or something
untoward happening upstairs, (2) she could
have been making plans to harm herself and
had only been interrupted by the officer
entering the premises or (3) she could have
been in the process of creating a hazard, such
as setting fire to the premises, which would
have created a dangerous situation for both
herself and anyone else who might have
re‑entered the premises.
Although the limited information initially
available to the officer did not eliminate the
potential that this was a grave and volatile
mental health situation, within minutes of his
arrival the situation was significantly
transformed. The daughter was not “freaking
out” or volatile, ambulance personnel were
present or en route to handle any mental health
concerns and the accused, while upset, was
secluded from her daughter and secure in her
car.

Once the officer located the 911 caller (the
accused), determined the reason for her call, and
provided the requested assistance by removing her
daughter, his authority to be in the house ended.
Plus, the trial judge failed to consider alternatives
available to the officer before he decided to search
further in an effort to ensure “everything was all
right”. He could have waited until the accused
calmed and then questioned her and her daughter
about the events leading up to the 911 call. Or he
could have asked the accused to enter the residence
and ensure all was well, and then arranged for the
daughter to leave the area in whatever manner was
appropriate.
In this case, there was no objective indicia of
criminal activity or an identifiable threat to public

safety in the 911 call or the circumstances that
greeted the police on their arrival, such as the
presence of a gun or other weapon, an assault or
other injury, or an injury related to an operating drug
lab. The absence of such concrete indicators of
crime or threat to public safety did not justify an
immediate search to “make sure everything was all
right”. The search was not a necessary and
reasonable violation of the accused’s rights under
s. 8 of the Charter.
On a final note, the Court of Appeal recognized that
the reasonableness of police action will be factually
driven and any such analysis involves weighing
privacy interests against public safety:
I acknowledge the Crown’s submission that
allowing this appeal may have a chilling effect
on police response to public safety concerns
arising from 9-1-1 calls. I also recognize the
difficulties these situations present to the police
in that they require rapid judgment calls in
situations where all the circumstances are not
known, whereas the courts examine them in a
tranquil setting with the benefit of hindsight. As
a result, I agree it is appropriate to err on the
side of caution in permitting a citizen’s privacy
rights to trump the objectives of public
protection and safety. Nevertheless, not every
9-1-1 call engages issues of public protection,
and the requirement that a search be both
reasonable and necessary does not constitute an
unwarranted interference with the duty of police
to protect the public. It remains to analyze each
situation on its own facts in an effort to balance
these competing interests. [para. 42]

Admissibility
The Court of Appeal excluded the evidence under s.
24(2) of the Charter. Although the marihuana plants
and product seized by police were highly reliable
evidence and society had a significant interest in
having the case adjudicated on its merits, the s. 8
breach was serious, the intrusion into the accused’s
home had a significant impact on her Charterprotected privacy rights. Without the evidence, the
Crown’s case collapsed. The accused’s appeal was
allowed, her convictions set aside and acquittals
were entered.
Complete case available at www.courts.gov.bc.ca

PAGE 26

Volume 13 Issue 4 - July/August 2013

RANDOM	
 STOP	
 PURPOSE	
 MUST	
 
RELATE	
 TO	
 ROAD	
 SAFETY	
 
INTEREST
R. v. McCammon, 2013 MBCA 68
At about 2:00 am two patrol officers
saw the accused’s vehicle on a road
leading to a park on the outskirts of
the city. The officers thought the
vehicle was suspicious, being in the
area late at night, and pulled it over. A computer
check revealed the vehicle had not been reported
stolen. An officer asked the driver what she was
doing in the park at that time. The officer learned she
had been drinking and asked her to provide a breath
sample into an approved screening device. She
failed the test and was arrested. She was taken back
to the police station, provided breath samples over
the legal limit and was charged with driving over
80mg%.

Manitoba Provincial Court
The trial judge ruled that the true purpose
of the traffic stop was to check for
suspicious activity and not for reasons
related to road safety. It was a car being
driven late at night in an area where there were not
a lot of vehicles around. In his view, the officer
could not rely on the provisions of Manitoba’s
Highway Traffic Act (s. 76.1) as authority for the stop.
Since there was no other lawful basis for the stop, it
was arbitrary and breached s. 9 of the Charter. The
breath samples were excluded under s. 24(2) and
the accused was acquitted.

Manitoba Court of Queen’s Bench
The Crown argued, in part, that the trial
judge erred in finding no lawful basis for
the vehicle stop and therefore a s. 9
breach occurred. The appeal judge noted
that motor vehicle stops do not have to be based
upon suspicion of a driving infraction, but can be
completely random as long as the purpose for the
stop is related to road safety. The validity of such a
detention, however, must be assessed at the frontend of the stop - what motivated it to begin with. A
stop will not be rendered valid simply because the

police pursue highway safety issues once the
accused is detained, such as asking for a driver’s
licence and vehicle registration. In this case, the
appeal judge found the trial judge’s ruling that the
true purpose of the stop - to investigate general
suspicion about criminal activity - was not
unreasonable. The decision to exclude the evidence
was upheld and the Crown’s appeal was dismissed.

Manitoba Court of Appeal
The Crown sought leave to appeal before
the Manitoba Court of Appeal. But
Justice Monnin agreed that the trial
judge’s finding was not unreasonable.
The purpose of the stop was not related to highway
safety but rather to rule out or investigate a general
suspicion of criminal behaviour. “Highway traffic
stop authority cannot be a means to conduct an
unfounded general inquisition or a comprehensive
check for criminal activity,” he said. The police
cannot validate an otherwise illegal stop by pursuing
highway safety issues once an accused is detained.
He also found the Crown’s argument that the court
should focus on the officers’ actions or conduct,
rather than their suspicions and thoughts, was illconceived. “The trial judge was entitled to assess the
police officers’ evidence as to the reasons motivating
the stop in order to assess whether there was a
genuine highway traffic interest in the stop,” he said.
There was no error in finding that highway traffic
concerns were not the motivation for the stop and it
was not justified on any other basis, thus a s. 9
Charter breach. As for the exclusion of evidence, the
appropriate factors were considered in the s. 24(2)
analysis which was entitled to deference. The
Crown’s application for leave to appeal was
dismissed.
Complete case available at www.canlii.org

PAGE 27

911	
 CALL	
 JUSTIFIES	
 POLICE	
 
ENTRY
R. v. Evon, 2013 ONCA 10
At 10:30 pm police received a lengthy
911 call of shots being fired and
flashes being seen near the accused’s
residence. The 911 call referred to

Volume 13 Issue 4 - July/August 2013
three males and three females in the area. Only the
accused was identified by name. Several police units
responded to the call. Most were members of the
Emergency Services Unit whose duties include
attending high risk calls. The accused was known to
all of them either through past contact or from
police intelligence. Three males were found in front
of the residence and three females were leaving the
area. The males were directed at gunpoint to stop
and get on the ground. They were detained and
patted down. No firearm was located but police
continued to be concerned that there might be a
gunman or injured person in the residence so they
entered it at 10:50 pm. When searching any place
where a person could be hiding, an officer saw
drugs and drug paraphernalia in plain view in a
bedroom. In another bedroom, another officer
noticed a duct taped package on a shelf. He initially
thought it was a kilogram of cocaine but, after
picking it up and looking at it, concluded it was a
bundle of money. He returned the bundle to the
shelf. The officers exited the house at 11:00 pm and
sought and executed a telewarrant the following
morning. Cash, bear spray and drugs, including
crack cocaine, powder cocaine, ecstasy, Oxycodone
and Morphine were seized. The accused was
charged with several drug, weapon, property and
proceeds of crime offences.

Ontario Superior Court of Justice
The accused argued, among other
grounds, that the initial entry into the
house was unreasonable and that this
tainted the telewarrant. The judge,
however, found the investigation of the 911 call fell
within the general scope of police powers and was
justified in the circumstances. “I found that the
police concerns were for an unknown injured
person or an unknown person with a firearm,” he
said. “The basis for the concern was information
obtained from a 911 caller. The relevant portions of
that call had been confirmed. In my view, the police
decision to enter the residence was well grounded
both subjectively and objectively.” As for the
telewarrant, it was properly issued despite a
misleading statement and some material omissions.
The accused was convicted on many of the charges.

Ontario Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions, submitting the police
did not have justifiable grounds to
search the house. But the Court of
Appeal disagreed. The trial judge’s finding was
amply supported by the evidence including the
specificity of the 911 call, the confirmation of the
call, the accused’s reputation with police and the
officers’ evidence. As for the officer examining the
package found in the house, he exceeded his
authority during the search. However, because the
plain view observations of the other officer
supported the issuance of the telewarrant, nothing
turned on that examination.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional facts taken from R. v. Evon,
[2011] O.J. No. 6563 and R. v. Evon, [2010] O.J.
No. 6286.

EVEN	
 IF	
 DETENTION	
 
ARBITRARY,	
 EVIDENCE	
 
ADMISSIBLE
R. v. Allison, 2013 ONCA 461
Two members of Toronto’s antiviolence police unit (TAVIS) went to
an area to proactively talk with
individuals. They wanted to ensure
community safety because there had
been a shooting two days earlier and police were
concerned that there may be retaliation. The
accused, wearing clothing sometimes associated
with gangs including baggy blue jeans and a blue
shirt, was seen riding his bicycle about 50 metres
from the officer’s police car. As an officer
approached and said “Hi,” the accused looked
shocked and suddenly changed body language. He
adjusted his waistband and raced away on his
bicycle onto the sidewalk at about 30 km/h. When
the officers pursued in their vehicle with siren and
lights activated, the accused continued to bike away
from them at a high rate of speed. About a minute
later he fell over his bicycle onto the ground,
landing on his back. An officer said, “Show me your
hands.” When asked why he was running, the

PAGE 28

Volume 13 Issue 4 - July/August 2013

accused said he was carrying a gun. He was
handcuffed and patted down. Police found a 9 mm
Ruger pistol and ammunition. He was arrested,
advised of his right to counsel and charged with six
firearm related offences.

Ontario Superior Court of Justice
The accused sought to have the handgun
and ammunition excluded as evidence
being the product of ss. 8, 9 and 10
Charter breaches. The judge found the
accused had been detained when police
commanded him to show his hands - a reasonable
person in his circumstances would have concluded
that he had no choice but to comply. The detention
was arbitrary since the police did not have
reasonable grounds to suspect the accused was
connected to a particular crime. They were not
investigating a crime, did not associate his clothing
to gang activity and he discarded no contraband
before the detention. In addition, they may have
been mistaken about him reaching for his
waistband; they were chasing him in their car as he
fled on a bicycle. “[H]e had the right to refuse to
answer questions or to go as he pleased,” said the
judge. “Whether he walked rode his bicycle slowly
or quickly should not be a deciding factor. … The
decision to leave quickly, on its own, does not, in
my view, raise reasonable grounds to suspect that
the individual is connected to a known or suspected
crime. … [His] decision to leave in the manner he
did, rather than stay and refuse to answer questions,
does not constitute grounds for the police to detain
him.” The judge, however, did not find breaches of
ss. 8 or 10. “Public safety issues required that [he]
be searched as soon as he informed the officers that
he had a gun,” said the judge. As well, until the gun
was safely removed, the police had no reasonable
opportunity to advise the accused of his rights.
Despite the arbitrary detention, the evidence was
admitted under s. 24(2). The breach was neither
serious nor deliberate. The officers acted in good
faith and their behavior was neither egregious nor
abusive. They acted under exigent circumstances
with a concern for public safety. The gun was also
highly reliable evidence and essential to the trial.
The accused was convicted of several weapons
offences.

Ontario Court of Appeal
The accused argued that the trial
judge erred in her s. 24(2) Charter
ruling. The Crown, on the other
hand, suggested that the trial judge
erred in finding a s. 9 breach in the first place. In the
Crown’s view, the police were justified in detaining
the accused for investigative purposes and, in any
event, the trial judge properly decided the s. 24(2)
issue. The Court of Appeal found it unnecessary to
decide whether the trial judge erred in concluding
that the accused had been arbitrarily detained. Even
assuming a s. 9 breach occurred, the evidence was
nonetheless admissible under s. 24(2).
The trial judge’s finding that police acted in good
faith and their conduct was neither egregious nor
abusive was reasonably supported by the following
considerations taken together:

• Context: The police were patrolling a high
crime area where there had been a fatal
shooting two days earlier.
• Change in demeanor: The accused looked
shocked when he first saw the police.
• Police’s perception: The police believed, albeit
apparently mistakenly, that on seeing the
officers the accused put his hand to his waist.
• Flight: The accused fled by bike immediately
on seeing the police.
• Police questioning: The trial judge found the
question “Why did you run?” innocuous.
• Period of detention : The accused was
detained only briefly before telling the police
that he had a gun.
The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional facts taken from R. v.
Allison, 2011 ONSC 1459.

PAGE 29

Volume 13 Issue 4 - July/August 2013

ONUS	
 ON	
 CROWN	
 TO	
 SHOW	
 
COMPLIANCE	
 WITH	
 
s.	
 25	
 CRIMINAL	
 CODE
R. v Davis, 2013 ABCA 15

BY THE BOOK:
Protection	
 of	
 persons	
 acting	
 under	
 authority: Criminal Code

A police officer was dispatched to
investigate a report that a person
armed with a butcher knife was
riding a bicycle around a mall
parking lot. The officer attended the
area and saw a young man, matching the description
given, riding a bike. Following the man down a
street, the officer sounded his air horn twice and
activated the police car’s emergency lights. But
before the officer could get out his car, the accused
charged at the officer with a knife in his hand.
Despite resistance from the accused, the officer was
able to open his door and exit his car. While the
accused held the knife over his head, the officer told
him to back up and drop the knife and gave an
officer in distress signal over the radio. The accused
picked up his bike and walked away. The officer,
with revolver drawn, followed him and shouted
many times at him to drop the knife. He continued
to walk away and, when he faced the officer, was
pepper sprayed in the face with no effect.

s. 25 (1) Every one who is required or authorized
by law to do anything in the administration or
enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what
he is required or authorized to do and in using as much
force as is necessary for that purpose.
When not protected

...

(3) Subject to subsections (4) and (5), a person is not
justified for the purposes of subsection (1) in using force
that is intended or is likely to cause death or grievous
bodily harm unless the person believes on reasonable
grounds that it is necessary for the self-preservation of the
person or the preservation of any one under that person’s
protection from death or grievous bodily harm.

As the accused continued to walk away, the officer
demanded he drop the knife while downgrading the
radio alert for assistance. When the accused moved
in the direction of a mall where people had been
seen earlier, the officer called for a Taser. Concerned
his options would be limited if the accused reached
a populated area, he decided that he would not let
him get near people while still in possession of the
knife. When the accused turned to face the officer
and raised the knife in the air, he shot him twice;
once in the neck and once in the chest. He was
taken to hospital for treatment of his life threatening
injuries and later charged with possessing a weapon
(a knife) for a dangerous purpose, assaulting a police
officer and assault with a weapon.

When protected

Alberta Court of Queen’s Bench

lawfully assisting the peace officer or any other person

(4) A peace officer, and every person lawfully assisting the
peace officer, is justified in using force that is intended or is
likely to cause death or grievous bodily harm to a person to
be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with
or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one
for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force
believes on reasonable grounds that the force is necessary
for the purpose of protecting the peace officer, the person
from imminent or future death or grievous bodily harm;

The accused’s Charter arguments,
including breaches of ss. 7 (life liberty and
security) and 12 (cruel and unusual
punishment) due to excessive force, were

and
(e) the flight cannot be prevented by reasonable means in a
less violent manner.

PAGE 30

Volume 13 Issue 4 - July/August 2013
rejected. The judge concluded that the accused bore
the onus of demonstrating that his Charter rights
were breached by establishing on a balance of
probabilities that the requirements of s. 25 of the
Criminal Code had not been met. The onus was not
on the Crown to prove the factors justifying the use
of force. The judge, nevertheless, did find the officer
was justified in acting as he did. The accused’s
Charter rights had not been breached through the
use of excessive force. The accused was convicted of
all three charges and given a suspended sentence,
taking into account that he had been shot and
injured.

however, that when the section is invoked in this
context, the burden falls on the person seeking to
rely on the section’s protection to prove that it
applies.” The justices continued:
Notwithstanding that the overall burden is on
the person alleging a Charter breach, the
situation is similar to a civil case where the
overall burden lies with the plaintiff.
Nonetheless, the law imposes an evidentiary
burden on the defendant to prove the
application of section 25, where he seeks to use
it to justify his conduct. Although not completely
analogous, this is also similar to the burden
placed on the Crown in an application under
section 8 of the Charter. Once an accused shows
that a search was unlawful, the burden falls to
the Crown to show that the search was
nonetheless reasonable. This does not reverse
the overall burden of proof on the Charter
application, which remains with the accused. It
just places an evidentiary burden on the Crown
with respect to this aspect of the matter. [para.
47]

Alberta Court of Appeal
The accused appealed his convictions arguing, in
part, that the trial judge erred in determining
whether his Charter rights were breached. In his
view, the shooting was unnecessary and therefore
excessive force was used. Contrary to the trial
judge’s ruling placing the burden on him to
demonstrate the officer did not act reasonably, he
contended that once he showed force causing
grievous harm was used by police, the evidentiary
burden shifted to the Crown to prove that the force
was reasonable in all the circumstances and thereby
justified by s. 25. He submitted that he met the onus
by showing that he suffered grievous bodily harm
through the use of lethal force and it was now up to
the Crown to prove that it was justified.

Who Bears the Burden?
Justices O’Brien and McDonald
agreed that the Crown had the
evidentiary burden of showing that
s. 25 had been satisfied when the
provision is relied upon to justify the level of force
used in these and similar circumstances. “The
section is designed to protect those engaged in law
enforcement from civil and criminal liability when
they are required to use force in performing their
public duties,” said the majority. “It is clear,

Despite the trial judge’s misstatement of the law, she
nonetheless found the officer’s use of force justified
on a subjective-objective basis and relied upon the
principles of proportionality, necessity and
reasonableness. She accepted the officer’s subjective
belief that he had no other choice, at the point of the
final confrontation, but to shoot the accused. He
would soon reach a point where he was mingling
with the public, putting bystanders in danger, and
restricting the officer’s options to protect public
safety. She also tested the objective nature of the
officer’s belief and found it to be reasonable.
The accused’s appeal was dismissed.

A Second View
Chief Justice Fraser, authoring a dissenting
opinion, agreed with the majority that the
trial judge erred by holding that the
accused bore the burden of establishing

“[I]f the police use excessive force in apprehending a person, and it results in a Charter breach,
then the remedies available include a stay in extreme and extraordinary situations. Alternatively,
a remedy may be given at the sentencing stage, or the misconduct may give rise to an award of
damages.”

PAGE 31

Volume 13 Issue 4 - July/August 2013
breach, it is not proper to speak of a burden
being imposed on the police. Those cases that
refer to the burden shifting to the police are civil
ones in which the police were defendants.
However, in a criminal trial, the police are
neither parties to a prosecution, nor defendants.
Where an accused establishes a prima facie
breach of s. 7 of the Charter because deadly
force has been used against him or her, what is
at issue is the police power of the state. The
evidentiary burden then shifts to the Crown to
prove on a balance of probabilities that the
police actions were justified in accordance with
the limitations in s. 25 of the Code and thus in
compliance with the principles of fundamental
justice.

that the use of deadly force was not justified under s.
25. Although the burden of proving a Charter
violation rests with the person alleging the breach,
he found this does not mean that an accused must
prove the force used was excessive. He stated:
Once an accused has met the burden of
establishing that the police used deadly force
against him or her, this constitutes a prima facie
breach of s. 7 of the Charter. The evidentiary
burden then shifts to the Crown to prove that the
force used was justified in the circumstances.
The test as to whether the use of deadly force
was justified requires a combined subjective objective analysis. The trier of fact must
conclude not only that the police officer
subjectively believed that the use of force was
necessary in all of the circumstances to protect
the police officer or others from death or
grievous bodily harm, but also that this belief
was objectively reasonable.
This being so, it would be unfair to impose on
an accused the burden of proving a negative,
namely that the deadly force was not justified.
Evidence of the subjective belief of the police
officer falls squarely within the exclusive
knowledge of the police officer and similarly,
evidence as to what was considered reasonably
necessary in the circumstances from an
objective viewpoint may well be linked to police
practices and procedures. This evidence is not
within either the ready knowledge or control of
an accused.

Therefore, once [the accused] established a
prima facie breach of s. 7, the evidentiary
burden shifted to the Crown to establish that the
use of deadly force by the police officer
complied with the limitations in s. 25.
[references omitted, paras. 78-81]

Since the trial judge erred in imposing the burden on
the accused, she conducted her analysis of whether
the use of deadly force was justified from the wrong
perspective:
[A]t no time did the trial judge ever consider
whether the Crown had established on a balance
of probabilities that the police officer’s use of
deadly force was justified at law. Reasonableness
is not only a matter of what a judge in a calm
and reflective environment with the benefit of
hindsight might now think. But equally
reasonableness is not only a matter of what the

I would add a word of caution. Where an
accused establishes a prima facie Charter

“Under the law, police officers are accorded a significant degree of latitude in their use of
force to complete an arrest, and appropriately so. Courts have often stressed that police
actions cannot be measured to a standard of perfection but must be assessed in light of the
dangerous and exigent circumstances in which the police often find themselves. However,
police officers do not have an unlimited right to inflict harm on a person, much less deadly
force, in the execution of their duties. Under s. 25 of the Criminal Code, police use of force
is “constrained by the principles of proportionality, necessity and reasonableness”. Indeed,
because of the latitude given to the police in exercising their duties, courts must be vigilant
in ensuring that the limitations on the police power of the state that do exist are upheld. The
rule of law binds everyone in Canada including the police.”
PAGE 32

Volume 13 Issue 4 - July/August 2013
officer at the scene thought. The finality of
deadly force demands both accessible and
acceptable standards. As I have explained, the
trial judge here failed to test the police officer’s
subjective belief about the necessity for deadly
force against the objective standard mandated by
law. That failure means that her conclusion
about whether the deadly force was justified
cannot stand. [para. 97]

Justice Fraser would have ordered a new trial.
Complete case available at www.albertacourts.ab.ca

Editor’s note: This case is under appeal to the
Supreme Court of Canada.

PROSPECTIVE	
 PRODUCTION	
 OF	
 
FUTURE	
 TEXT	
 MESSAGES	
 IS	
 AN	
 
INTERCEPT
R. v. TELUS Communications Co., 2013 SCC 16
The police obtained a general warrant
under s. 487.01 of the Criminal Code
with a related assistance order
requiring Telus provide copies of any
text message sent or received by two
named wireless subscribers over a two week period
that were stored on Telus’ computer database. As
well, the warrant required the production of
subscriber information identifying any individuals
who sent text messages to, or received text messages
from, the two targeted subscribers. At the time, Telus
would routinely make copies of all text messages
sent or received by its subscribers and store them for
30 days.

Ontario Superior Court of Justice
Telus made a motion arguing the warrant
was invalid because the police had failed
to satisfy the requirement under s. 487.01
(1)(c) that a general warrant could not be
issued if another provision in the Criminal Code was
available to authorize the technique used by police.
In its view, the police should have obtained an
authorization to intercept private communications
and therefore a general warrant was not
available. The Crown, on the other hand, submitted
that the messages on Telus’ computer database were

not real-time communications (thus their retrieval
not an intercept). The Crown opined that the police
were therefore permitted to use the general warrant
power to obtain text messages stored on a service
provider’s computer. The judge found that a general
warrant could be used to seize the content of private
text messages from a telecommunication service
provider and the police had not engaged in an
“interception.” The judge dismissed Telus’
application, but did rescind the part of the warrant
requiring production of historical messages
predating the issuance of the warrant because a
production order was available to obtain them.

Supreme Court of Canada
Telus again appealed and the
Supreme Court of Canada was split
in its ruling. Three members of the
Court ruled that the text messages
were private communications and the prospective
production of future text messages required an
authorization to intercept under Part VI of the
Criminal Code. Under s. 487.01(1)(c) the Crown is
only entitled to use a general warrant where it can
be shown that no other provision would provide for
a warrant, authorization or order permitting the
technique. If there is another provision available, a
general warrant can not be used. “Viewed
contextually, therefore, s. 487.01(1)(c) stipulates that
the general warrant power is residual and resort to it
is precluded where judicial approval for the
proposed technique, procedure or device or the
‘doing of the thing’ is available under the Code or
another federal statute,” said Justice Abella. “In other
words, s. 487.01(1)(c) should be broadly construed
to ensure that the general warrant is not used
presumptively. This is to prevent the circumvention
of more specific or rigorous pre-authorization
requirements for warrants.” Thus, if there was an
“intercept,” a general warrant could not be used as it
would fail the “no other provision” requirement.
Here, “the investigative technique authorized by the
general warrant ... allowed the police to obtain
prospective production of future text messages on a
daily basis for a two-week period directly from a
service provider.” The majority found Part VI applied
to the prospective and continuous production of text

PAGE 33

Volume 13 Issue 4 - July/August 2013
to protect. In my view, the investigative
technique in this case therefore qualifies as
“intercepting private communications” under
Part VI.

BY THE BOOK:

An interpretation of “intercept a private
communication” that includes the investigative
technique used by police in this case finds
support in the statutory definition of “intercept”
in s. 183. The definition includes the simple
acquisition of a communication. It does not
require the acquisition of the communication
itself; rather, the acquisition of the “substance,
meaning or purport” of the communication is
sufficient. Moreover, this interpretation is
harmonious with the scheme and objectives of
Part VI, which is drafted broadly in order to
regulate and control a wide variety of
technological invasions of privacy. Finally, it
strikes the appropriate balance between the
serious invasion of privacy that results from the
surreptitious acquisition of private
communications and the evolving needs of
effective law enforcement.

Information	
 for	
 general	
 warrant: Criminal Code
s. 487.01 (1) A provincial court judge, a judge of
a superior court of criminal jurisdiction or a
judge as defined in section 552 may issue a
warrant in writing authorizing a peace officer
to, subject to this section, use any device or
investigative technique or procedure or do any thing
described in the warrant that would, if not authorized,
constitute an unreasonable search or seizure in respect of a
person or a person’s property if

...

(c) there is no other provision in this or any other Act of
Parliament that would provide for a warrant, authorization
or order permitting the technique, procedure or device to
be used or the thing to be done.

messages and the fact that the messages were stored
in Telus’ computer did not mean their retrieval was
not an “intercept”:

The police gained a substantial advantage by
proceeding with a general warrant. They did not
need the Attorney General’s request for an
authorization; they did not need to show that
other investigative procedures had been tried
and failed; they did not need to provide any
notice to the target individuals; and they did not
need to identify which other individuals’ private
communications may be acquired in the course
of the search.

The use of the word “intercept” implies that the
private communication is acquired in the course
of the communication process. In my view, the
process encompasses all activities of the service
provider which are required for, or incidental to,
the provision of the communications service.
A c q u i r i n g t h e s u b s t a n c e o f a p r iva t e
communication from a computer maintained by
a telecommunications service provider would,
as a result, be included in that process. [para.
37]

The general warrant in this case purported to
authorize an investigative technique
contemplated by a wiretap authorization under
Part VI, namely, it allowed the police to obtain
prospective production of future private
communications from a computer maintained by
a service provider as part of its communications
process. Because Part VI applied, a general
warrant under s. 487.01 was unavailable.
[paras. 42-45]

And further:
Part VI recognizes the dangers inherent in
permitting access to the future private
communications of a potentially unlimited
number of people over a lengthy period of time.
Those are the very risks inherent in the
investigative technique in this case. An
authorization that permits police to obtain the
prospective production of future text messages
over a two-week period directly from the
communications process used by the service
provider is precisely what Part VI was intended

Another View By Two - Substantive Equivalent
Justices Moldaver and Karakatsanis
also found the warrant invalid, but
for different reasons. In their view, if
the technique used was not an

PAGE 34

Volume 13 Issue 4 - July/August 2013

intercept, it was substantively the equivalent of one.
“What the police did in this case - securing
prospective authorization for the delivery of future
private communications on a continual, if not
continuous, basis over a sustained period of time was substantively equivalent to what they would
have done pursuant to a Part VI authorization,” said
Justice Moldaver. “It was thus, at a minimum,
tantamount to an intercept.” The police should have
obtained a wiretap authorization; thus, a general
warrant was unavailable.

WHAT IS A ‘MR. BIG’ OPERATION?
“A Mr. Big operation involves police posing as
gang members with a view to recruiting a
suspect. The suspect is asked to perform certain
tasks with a “criminal element” to prove his
faithfulness and honesty to the gang. The
objective is to have the suspect reveal
information to establish his trustworthiness, his
ability to commit potentially criminal acts or acts
in furtherance of a crime, and/or his criminal
past. This information is obtained with a view to
either the rehabilitation of the suspect’s record
or to establish his credibility as a criminal.” Alberta Court of Appeal in R. v. Vuozzo, 2013 ABCA 130 at para. 17.

Dissenting Duo
Justice Cromwell, along with Chief
Justice McLachlin, concluded that
the investigative technique
authorized by the general warrant
was not an intercept such that it required a wiretap
authorization. Nor was the substantive equivalency
test part of the “no other provision” analysis.
Moreover, even if it was part of the test, the
technique used was not the substantive equivalent of
a wiretap authorization. The justices concluded
there was no bar to the issuance of the general
warrant because the “no other provision”
requirement had been met.
Telus’ appeal was allowed and the general warrant
and related assistance order were quashed.
Complete case available at www.scc-csc.gc.ca

NO	
 DETENTION	
 DURING	
 
UNDERCOVER	
 TRAFFIC	
 STOP
R. v. Vuozzo, 2013 ABCA 130
As part of a homicide investigation,
police engaged in a 24 scenario “Mr.
Big” operation in an effort to obtain
inculpatory statements from the
accused regarding the murder. In one
of the scenarios the police arranged a traffic stop.
This ruse involved uniformed police officers
stopping a vehicle driven by an undercover officer
with the accused and his mentor, another
undercover officer, as passengers. This stop occurred
shortly after the police and the accused had dug a
“grave site,” also part of the undercover operation.

The uniformed officers were to obtain the accused’s
already known name during the traffic stop and
convey the message to him that a Homicide Unit
Detective wanted the accused to call him. The
undercover officer driving the vehicle was weaving
slightly before the pull over and was instructed to
perform a roadside screening test. The other
undercover officer (the accused’s mentor) remained
in the vehicle and told the accused to hand over his
cell phone, since he was not supposed to have one.
In addition, the mentor told the accused “to be
truthful about his name because if he lied, and if the
police started ‘digging on him … it could draw
attention to us and ... [his mentor] couldn’t be
fingerprinted’”.
The undercover mentor was first asked for his
identification and then the accused was asked for
his name and date of birth. The accused and the
undercover officers were directed to place their
hands on the car. They were patted down and told to
sit on the curb and cross their legs. After police data
bases were checked, an officer handed the accused
a business card with a detective’s name and
telephone number on it and told him he needed to
contact the detective. When the accused asked “Am
I going to jail today?”, the officer said “No.” The
officer then gave directions to the nearest liquor
store since the men said they were looking to buy
beer. The entire length of the stop was about 12
minutes. Two days later the accused met with the
boss (Mr. Big). He provided an inculpatory
statement, admitting to striking him with a machete
and disposing of the body. The accused was
subsequently arrested and again admitted to the
killing. He was charged with murder.

PAGE 35

Volume 13 Issue 4 - July/August 2013

“Detention situations are those where the individual, who may be a suspect, knows or
reasonably believes that she is under a demand or direction emanating from the person she
knows to be a state agent. However, the demand or direction from the state agent that has
the detention effect must have legal implications for the person. Were it otherwise, every
witness to a car crash who is told to wait until the officer has a chance to interview her will be
detained in law.”
Alberta Court of Queen’s Bench

Detention?

The judge found that the stop and
business card provided about contacting
the detective were on the accused’s mind
when he spoke to the “boss.” As for the
stop, the judge did not find the accused was
detained simply by being in the vehicle when it was
pulled over. However, the accused was detained
when he was directed out of the vehicle, responded
to questions about his name and date of birth, and
was patted down, directed to put his hands on the
hood and sit on the curb. In the judge’s view, the
traffic stop was a ruse thereby rendering the stop
arbitrary. The judge, however, went on to admit the
evidence of the conversation with the “boss,”
holding that there was no link between the ruse and
the accused’s statements. These statements, along
with other evidence, led to a conviction of second
degree murder and break and enter with intent to
commit an indictable offence.

The Court of Appeal noted that not every interaction
wherein a police officer engages an individual in
conversation or results in a delay or waiting for
police, absent significant physical or psychological
restraint, is a detention within the meaning of ss. 9
and 10 of the Charter. In this case, there were
essential legal ingredients involving the accused’s
interaction with police lacking from the concept of
detention:
Detention situations are those where the
individual, who may be a suspect, knows or
reasonably believes that she is under a demand
or direction emanating from the person she
knows to be a state agent. However, the demand
or direction from the state agent that has the
detention effect must have legal implications for
the person. Were it otherwise, every witness to a
car crash who is told to wait until the officer has
a chance to interview her will be detained in
law. [para. 58]

Alberta Court of Appeal
The accused argued, in part, that
he was arbitrarily detained under s.
9 of the Charter when the police
stopped him during the scenario
and that his right to silence under s. 7 was also
breached. He submitted that he had been detained
the moment the vehicle was pulled over and it was
arbitrary because it was not a valid traffic stop. These
breaches during the traffic stop, in his view,
influenced (tainted) his conversation with the “boss”
and the statements that arose through this arbitrary
detention should have been excluded under s. 24(2).
The Alberta Court of Appeal, however, disagreed. It
found the accused had not been detained, arbitrary
or otherwise, during the traffic stop scenario.

Here, the accused was told to sit and wait while a
database search was done. There was no charge or
accusation to inform the accused under s. 10(a).
Nor was there any demand or direction with legal
consequences made to the accused. Nor was there
any “power imbalance” permeating the events that
required leveling. “Ironically, when the [accused]
asked if he was being arrested, [the officer] told him
‘no’,” said the Court. “There was no significant
physical or psychological restraint.” The trial judge
erred in finding a detention.

Arbitrary?
Even if there was a detention, it would not have
been arbitrary:

PAGE 36

Volume 13 Issue 4 - July/August 2013
At its highest, the [accused] may have thought
the ‘boss’ could help him get out of the jeopardy
of a police investigation. That was no basis for
exclusion at common law. In light of the
foregoing, there is no departure from the
common law authority of police to investigate
crime (which has long permitted subterfuges).
Accordingly, police actions were not rendered
so lawless as to be arbitrary in the sense of
bearing no relationship to the legal authority on
which it was based.

“[T]here is no law against lying to criminals.”
Case authority involving police officers who stop
motorists arbitrarily (in the sense of having no
reason to do so) is not, in our view, relevant to
this issue. The officers here had plenty of rational
reason to want to stop the vehicle and perform
this ‘scenario’ for the [accused’s] benefit. The
[accused’s] real objection is not a lack of basis to
stop the vehicle and provide him with
information, it is that the play-acting was false,
pre-textual, and intended to mislead.

... The trickery used by the police was authorized
by the common law. Being within the limits of
the common law ..., the law which allows
criminals to be misled is itself not arbitrary. The
trial judge therefore erred in law in her
conclusion that there was an arbitrary character
to what the police did, even assuming it was a
detention … . [paras. 51-52]

In other words, the stop was not arbitrary in the
sense of lacking a basis. It was planned and
intentional. Moreover, on this record, it had
ample rational justification as part of the
ongoing investigation. Seen through a clarifying
legal lens, what the [accused] says converted the
interaction into an arbitrary detention is the
[accused] having been misled by police. This is
not a logical basis to convert a rational form of
detention into an arbitrary detention, unless on
the facts it can be said that what the police did
“bears no relation or is inconsistent with” the
law which founds the state action. … In any
event, arbitrariness raises an objective question.
[references omitted, paras. 43-44]

Right to Silence

Further, just because the police action was deceptive
did not automatically make the stop arbitrary. “The
common law does not forbid the police from
seeking to loosen the tongue of suspects, even
detainees,” said the Court. Nor was this case
analogous to a conversation orchestrated by
undercover police in a totally controlled cell plant
scenario. And, even if it was similar, the police were
not actively eliciting inculpatory information nor did
they obtain any information they did not already
have. Instead, they acted to mislead the accused and
there was “no law against lying to criminals.” This
case was a legitimate stratagem and necessary
incident of the undercover operation. The Court
added:

Here, the police inquiry about the accused’s name
and date of birth was not intended to acquire any
self-incriminatory evidence. Furthermore, the
prompting by the undercover mentor to tell the truth
and give his correct name did not emanate from
anyone known by the accused to be a police officer.
Although the accused might have been entitled to
decline to answer, the officer was nevertheless in the
execution of his duty and there was nothing wrong
with the officer asking the accused for his name.
There was no s. 7 Charter breach.

s. 24(2) of the Charter
Even if the accused’s Charter rights were breached,
the judge did not err in declining to find the
evidence was “obtained in a manner” that infringed
Charter rights. And, if the evidence was linked to a
Charter breach, it was nonetheless admissible under
s. 24(2). Its admission would not bring the
administration of justice into disrepute.
The accused’s appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

“The trickery used by the police was authorized by the common law. Being within the limits of the
common law ..., the law which allows criminals to be misled is itself not arbitrary.”

PAGE 37

!"#!$%!&'(!)*+,-%).)*!
!"#!$%!&'(!)*+,-%).)*!!!
/01)-20!3!*)!(,-4
/01)-20!3!*)!(,-4!!
56#7#897:
56#7#897:!!

!"#!57;<"=>?9";!=@!?8!'<"A#!2"==9#6:!
56=!BC8DE!56#FC<"8DE!56#A#8"8DE!-#7>=8FC8DG!
!"#$%&'"#(')(&**(+$%!,-.(/012$2)1-(&3#(4"-5)3#"1-!
!-)2!-0%!)/!!,!&'(!)*+,-%).)*!!5)-2,**)&!,*&3!
4#;8=9#!7>#?H#67:
+6?8H!/#'8D#BC7E!56C8<C>?B!%=BIJKC8#!LCD"!2<"==B!
67"('1&8"#9(&'(:)*0,;$3"(1"#"!3"#('7"(3&!)3<(=1<(!">38"*$-('"**-(7$-(-')19(?1),('7"("2"3'-(')('7"(&""1,&'7<(
67$-(51"-"3'&!)3(7&-(1&1"*9(;""3(8$2"3(&3#($3($'(7"(1"2"&*-('7"(*"&#"1-7$5(*"--)3-(7"(*"&13"#($3('7"(?)%0-()?(&3(
$3'"13&!)3&*(!1"(-')1,<(67$-(;*03'.(-'1&$87'#?)1@&1#(&%%)03'(51)2$#"-($32&*0&;*"($3-$87'-($3')(,&3&8$38('7"(
&""1#%1$-$-(@$'7(-'0#"3'-.(-'&$.(%),,03$'9(&3#(3"2"1("3#$38(,"#$&(&%"3!)3<(67"('&A"&@&9-(?1),('7$-(
51"-"3'&!)3(-7)0*#(;"(1"B0$1"#(1"&#$38(?)1("2"19(51$3%$5&*($3('7"(3&!)3<(

M="8#.C<"?#B!4#;#7E!)N#<I"A#!/C6#<9=6E!!"#!O0!&=A#!P!QI;7R!+=I8F?"=8!
=1<(C"9"-(-7&1"-(#"'&$*-()?('7"(C"9"-(?&,$*9(1"-5)3-"(')('7"('1&8$%(A$**$38()?(7$-(#&087'"1.(D,$*9(&'(E*&%"(:&3#
9)3(F$87(/%7))*(GHIIJK<(!"*$;"1&'"(#"%$-$)3-(&;)0'(7&3#*$38(3&!)3&*(&3#(*)%&*(,"#$&.(!3&3%"-.(#)3&!)3-.(
%),,03$'9(7"&*$38.(-055)1'(5")5*"(&3#()18&3$L&!)3-.('7"(%1"&!)3()?(67"(MN(O)2"(P(Q09-M(R)03#&!)3(&3#(
,)1"<((=1<(C"9"-()0'*$3"-(3)'(S0-'('7"($,,"#$&'"(&""1,&'7(&3#(1"-5)3-".(;0'("2"3'-('7&'()%%011"#($3('7"(9"&1-(
'7&'(?)**)@"#<((67"(3&11&!2"('"**-(7)@(67"(/'&3#&1#(4"-5)3-"(E1)')%)*(@&-(#"2"*)5"#.(#"-%1$;"-(7)@($'(@)1A-.(
&3#(@79($'($-(?&-'(;"%),$38(&(-'&3#&1#($3(,&39(-%7))*-(&3#(#$-'1$%'-<(

2D9S!'SMS!/#'8F6#?E!'6A?F?!T%,U!5=BC<#!/#>?69J#89!M#$<=!-#DC=8?B!2('!!T-#"6#FU!
/8'<(!">3#1"&(@&-(D3'19(6"&,(O"&#"1(&'(:)*0,;$3"(F$87(/%7))*(GTUUUK(&3#(6"&,(O"&#"1(#01$38('7"(V0**#)L"1(
N3%$#"3'($3(Q1&3;9.(:W(GHIIXK<(F"(7"*5"#(#"2$-"(&3#("Y"%0'"('7"('&%!%&*(5*&3(?)1('7"(F)-'&8"(4"-%0"(&'(E*&%"(
:&39)3(F$87(/%7))*(GHIIJK<(>8&$3($3(HIIJ(7"(@&-('7"(6"&,(O"&#"1(#01$38(&3(W&%"1(4"-%0"(@7"1"()2"1('7$1'9(
1)03#-(@"1"(!1"#<(/8'<(!">3#1"&(@&-('7"(E&'1)*(/05"12$-)1(&3#(D3'19(6"&,(O"&#"1(#01$38('7"(Z)0'7([$'7(&(
=$--$)3(-7))!38-(GHII\K<(67$-(@&-(&3(&%!2"(-7))!38(&'(&(9)0'7(,$--$)3('1&$3$38(%"3'"1(@7"1"(?)01(9)038(
&#0*'-(@"1"(-7)'.('@)()?(@7),(#$"#< !

MS!4#AC8!%?J#6=8E!.S2<SE!-S2S(S!
]<(C"2$3(:&,"1)3($-(&(!$5*),&'(@$'7('7"(>,"1$%&3(>%&#",9()?(DY5"1'-($3(61&0,&!%(/'1"--(&3#(&(V)&1#(:"1!!"#(
DY5"1'($3(61&0,&!%(/'1"--<(N3(%)3%"1'(@$'7('7"(4)9&*(:&3&#$&3(=)03'"#(E)*$%".(V"7&2$)1&*(/%$"3%"-(P3$'.(7"(
#"2"*)5"#(:&3&#&^-(!1-'(%),51"7"3-$2".(,0*!#$-%$5*$3&19('71"&'(&--"--,"3'('1&$3$38(51)81&,(&3#(%011"3'*9(
-"12"-()3('7"(:&3&#$&3(671"&'(>--"--,"3'(61&$3$38(V)&1#<(F"(&*-)('1&$3-(%1$-$-(1"-5)3-"('"&,-(3&!)3&**9(&3#(
$3'"13&!)3&**9(&3#(%)3-0*'-(@$'7(-%7))*-(&3#(%),,03$!"-($,5&%'"#(;9('1&0,&< !

(#F8#7F?;E!*=A#JK#6!VE!WXYZ![:XX?J!9=!\:XX>J!
T-#DC796?"=8!]:ZX?J!#![:XX?JU!
MI7"<#!087"9I9#!,@!$6C"7"!%=BIJKC?!
]Y\!.<$6CF#!$=IB#A?6FE!*#^!(#79JC879#6E!$%!

56##6#DC796?"=8!C7!6#_IC6#F!
`Y[XSXX!TK;!2#>9S!ZXE!WXYZU!!!`WZXSXX!T?%#6!,<9S!YE!WXYZU!
+=6!?FFC"=8?B!C8@=6J?"=8E!AC7C9!=I6!^#K7C9#!?9!^^^SK<B#F8S8#9!

!

!"#!$%!&?^!)8@=6<#J#89!/CA#67C9;!*#9^=6H!C7!?!7IK#<=JJC&##!=@!9"#!$6C"7"!%=BIJKC?!!
'77=<C?"=8!=@!%"C#@7!=@!5=BC<#!^C9"!6#>6#7#89?"=8!@6=J!9"#!@=BB=^C8D!>?6"<C>?"8D!?D#8<C#7!
!

ONLINE GRADUATE CERTIFICATE PROGRAMS
INTELLIGENCE ANALYSIS | TACTICAL CRIMINAL ANALYSIS
Foundational Courses:
Intelligence Theories and Applications
Advanced Analytical Techniques
Intelligence Communications

Specialized Courses:
Competitive Intelligence
Analyzing Financial Crimes
Tactical Criminal Intelligence
Analytical Methodologies for Tactical Criminal
Intelligence

Entrance Requirements:
Proof of completion of bachelor degree; OR
A minimum of two years of post secondary
education plus a minimum of five years
of progressive and specialized experience in
working with the analysis of data and
information. Applicants must also write a
500 – 1000 word essay on a related topic of
their choice OR
Applicants who have not completed a
minimum of 2 years post-secondary
education must have eight to ten years of
progressive and specialized experience in
working with the analysis of data and
information (Dean/Director discretion).
Applicants are required to write a 500-1000
word essay on a related topic of their
choice.
For detailed requirements please visit the
JIBC Website.

Justice Institute of British Columbia, Canada | www.jibc.ca |graduatestudies@jibc.ca

Foundational Courses
(students enrolled in either graduate certificate are required to complete the
foundational courses)

Intelligence Theories and Applications

Intelligence Communications

Advanced Analytical Techniques

A survey course that introduces the student
to the discipline of intelligence and provides
the student with an understanding of how
intelligence systems function, how they fit
within the policymaking systems of free
societies, and how they are managed and
controlled. The course will integrate
intelligence theory with the methodology
and processes that evolved over time to
assist the intelligence professional. The
course will develop in the student a range
of advanced research and thinking skills
fundamental to the intelligence analysis
process.

The skill most appreciated by
the intelligence consumer is the
ability to communicate, briefly
and effectively, the results of
detailed analytic work. This
course, through repetitive
application of a focused set of
skills to a body of information of
constantly increasing
complexity, is designed to
prepare intelligence analysts to
deliver a variety of intelligence
products in both written and oral
formats.

Topics include: drug/terrorism/other
intelligence issues, advanced
analytic techniques (including
strategic analysis, predicative
intelligence etc.), collection
management, intelligence sources,
management theory (large
organizations), attacking criminal
organizations, crisis management,
negotiation techniques, strategic
planning, local/regional updates
and briefing techniques.

Specialized Courses
(students enrolled in either graduate certificate are required to complete the
foundational courses)

Intelligence Analysis

Tactical Criminal Analysis

Competitive Intelligence
This course explores the business processes involved in
providing foreknowledge of the competitive environment; the
prelude to action and decision. The course focuses on
supporting decisions with predictive insights derived from
intelligence gathering practices and methodologies used in the
private sector. Lectures, discussions, and projects focus on the
desires and expectations of business decision-makers to gain
first-mover advantage and act more quickly than the
competition.

Tactical Criminal Intelligence
This course is an introduction to law enforcement
terminology, practices, concepts, analysis, and
intelligence. The course will introduce the student to
the discipline of crime analysis and law enforcement
intelligence through the study of the intelligence
cycle and the intelligence determinants. The role and
responsibilities of an analyst within each sub-topic
will be addressed. Additionally, the utilization of
analytical software will be introduced.

Analyzing Financial Crimes
This course examines the nature and scope of financial crimes
and many of the tools used by law enforcement in the
preparation of a financial case. Included in this course is a
detailed treatment of the following: laws which serve to aid in
the detection and prosecution of these crimes, the types of
business records available, types of bank records available, an
examination of offshore business and banking operations, and
the collection and analysis of this information, with emphasis
placed on Net Worth and Expenditure Analysis. In addition,
special treatment is given to the detection and prosecution of
money laundering, various types of money laundering
schemes, and the relationship of money laundering to
terrorism.

Analytical Methodologies for Tactical Criminal
Intelligence
The course reviews the key requirements for
intelligence in law enforcement and homeland
security. The course focuses the use of advanced
analytic methodologies to analyze structured and
unstructured law enforcement data produced by all
source collection. Students will apply these
concepts, using a variety of tools, to develop
descriptive, explanatory, and estimative products
and briefings for decision-makers in the field.