IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.

TRUST IN POLICE SLIDES, BUT
COPS STILL TOPS IN CJS
Although Canadians’ trust in police has waned over
the last several years, more people still trust the
police than they do judges, lawyers, or law makers.
In an Ipsos Reid poll released in January 2011
entitled “A Matter of Trust”, the data reveals that
police officers ratings in the trust survey is currently
at 57% of Canadians. This is down 16 points from a
rating of 73% in 2003. The trust in lawyers slid 7
points from 2003; they now sit at 22%. The trust in
national politicians remained unchanged at 9%
while judges had a trust rating of 51%. So, as in
years past, police continue to top the trust ratings for
professions involved in the criminal justice system.
Pharmacists were the most trusted profession at 79%
followed by doctors (75%), airline pilots (75%),
Canadian soldiers (72%), and teachers (65%). Car
salespeople were the least trusted at 8% followed by
national politicians (9%), union leaders (17%), local

0.6

municipal politicians (17%), chief executive officers
(19%), and new home builders (19%).
In an earlier poll from December 2010, also
conducted by Ipsos Reid for Postmedia News and
Global National, similar results were noted. In this
poll, police officers had a trust rating of 55%, judges
51%, Lawyers 31%, and national politicians 25%.
In an international survey conducted by the Gfk
Group (“Gfk Trust Index 2010”), the police had a
trust rating of 75% among the European countries
participating. Germany and Italy had the highest
trust in the police at 86% while Romania had the
lowest at 54%. Judges sat at 62%, highest in
Germany (83%) and lowest in Bulgaria (32%).
Lawyers came in at 46%, highest in Germany (72%)
and lowest in Bulgaria (31%). Finally, politicians
ranked the lowest overall at 14%. The Netherlands
trusted their politicians the most (32%) while Italy
rated them at 7%. Overall, the fire service were most
trusted at 94% followed by teachers and doctors
(84%), postal workers (82%), and the military (81%).

% of Canadians rating each profession 5,6, or 7 on a trust scale of 1-7.

57%

51%

0.45
0.3
22%

0.15
9%

0

National Politicians

Lawyers

Judges

Be Smart & Stay Safe

Police Officers

Volume 11 Issue 2

Volume 11 Issue 2 - March/April 2011

Highlights In This Issue
Good Faith Belief Must Be Reasonably Held

6

Cell Phone Search For Ownership OK

8

Charter Breach Minor: Evidence Admissible

11

Supreme Court Takes Longer To Decide Cases

12

Police Believed In Grounds For Arrest: Evidence
Admitted

14

911 Entry, Detention, Pat Down & Arrest Lawful

15

Purposive Approach Used In Cartridge Magazine
Interpretation

20

Alternative Reasoning Justifies Admission

21

Joint Sentencing Submission Rejected

22

Elimination Rate & Plateau: Assertions Of Scientific
Knowledge

27

Breaching Informer Privilege Results In Stay

29

911 Call Admissible As Evidence

32

Flag Man In Street Race To Face New Trial

34

Pre-Court Physical Line-up Polluted

37

Unless otherwise noted all articles are
authored by Mike Novakowski, MA. 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 list e-mail Mike
Novakowski at mnovakowski@jibc.ca.

ONLINE SOCIAL
NETWORKING COURSE

National Library of Canada
Cataloguing in Publication
Data

see page 38

JIBC ALUMNI COMING
SOON
see page 39

Main entry under title:
In service: 10-8. -- Vol. 1, no. 1 (June 2001)
Monthly
Title from caption.
“A newsletter devoted to operational police
officers across British Columbia.”
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of
British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten-eight.
PAGE 2

JIBC ANNOUNCES
TWO NEW GRADUATE
CERTIFICATES
see back cover for more
information

Volume 11 Issue 2 - March/April 2011

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

Academic writing: an introduction.
Janet Giltrow ... [et al.].
Peterborough, ON: Broadview Press, c2009.
PE 1408 G558 2009
Between two worlds: the inner lives of children
of divorce.
Elizabeth Marquardt.
New York, NY: Three Rivers Press, c2005.
HQ 777.5 M3746 2005

authors explore the emotional, psychological, and
social aspects from both the instructor and student
perspective. It provides an instructional design
framework and shows how a strong presence
contributes to effective teaching and learning. Filled
with illustrative examples and based on research and
experience, the book contains methods, case
scenarios, and activities for creating, maintaining,
and evaluating presence throughout the cycle of an
online course."- LB 1044.87 L439 2010

A designer's log: case studies in instructional
design.
Michael Power.
Edmonton, AB: AU Press, c2009.
LB 2361 P682 2009
Evidence-based training methods: a guide for
training professionals.
Ruth Colvin Clark.
Alexandria, VA: ASTD Press, c2010.
HD 8038 A1 C53 2010

Canadian families: diversity, conflict and change.
[edited by] Nancy Mandell, Ann Duffy.
Toronto, ON: Nelson Education, 2010.
HQ 560 C358 2010

The executive and the elephant: a leader's guide
for building inner excellence.
Richard L. Daft.
San Francisco, CA: Jossey-Bass, c2010.
BF 637 L4 D34 2010

The conduct of public inquiries: law, policy, and
practice.
Ed Ratushny.
Toronto, ON: Irwin Law, 2009.
KE 4765 R38 2009

The experiential learning toolkit: blending
practice with concepts.
Colin Beard.
London, UK; Philadelphia, PA: Kogan Page, 2010.
BF 318.5 B427 2010

The courage to heal: a guide for women survivors
of child sexual abuse.
Ellen Bass & Laura Davis.
New York, NY: Harper, c2008.
HQ 72 U53 B37 2008

Facilitating group learning: strategies for success
with diverse adult learners.
George Lakey.
San Francisco, CA: Jossey-Bass, c2010.
LC 5225 L42 L35 2010

Creating a sense of presence in online teaching:
how to "be there" for distance learners.
Rosemary M. Lehman, Simone C. O. Conceição.
San Francisco, CA: Jossey-Bass, 2010.
"How can faculty create a strong E presence for their
online classes? This volume highlights the need for
creating a presence in the online environment. The

Feeding your leadership pipeline: how to develop
the next generation of leaders in small to midsized companies.
Daniel R. Tobin.
Alexandria, VA: ASTD Press; San Francisco: BerrettKoehler, 2010.
HD 30.4 T635 2010

PAGE 3

Volume 11 Issue 2 - March/April 2011
Full-body flexibility.
Jay Blahnik.
Champaign, IL: Human Kinetics, c2011.
RA 781.63 B56 2011
Graphics for learning: proven guidelines for
planning, designing, and evaluating visuals in
training material.
Ruth Colvin Clark, Chopeta Lyons.
San Francisco, CA: John Wiley, 2011.
LB 1043.5 C53 2011
A guide to copyrights.
Gatineau, QC: Canadian Intellectual Property
Office, [2008].
KE 2799.2 G85 2008
Handbook of practical program evaluation.
Joseph S. Wholey, Harry P. Hatry, Kathryn E.
Newcomer, editors.
San Francisco, CA: Jossey-Bass, c2010.
H 97 H358 2010
How learning works: seven research-based
principles for smart teaching.
Susan A. Ambrose ... [et al.]; foreword by Richard E.
Mayer.
San Francisco, CA: Jossey-Bass, c2010.
LB 1025.3 H68 2010
How to study in college.
Walter Pauk, Ross J. Q. Owens.
Boston, MA: Cengage Learning, [2010], c2011.
LB 2395 P385 2010
Information literacy programs in the digital age:
educating college and university students online.
compiled by Alice Daugherty and Michael F. Russo.
Chicago, IL: Association of College and Research
Libraries, 2007.
ZA 3075 I538 2007
Interviewing as qualitative research: a guide for
researchers in education and the social sciences.
Irving Seidman.
New York, NY: Teachers College Press, c2006.
H 61.28 S45 2006

The invisible gorilla: and other ways our
intuitions deceive us.
Christopher F. Chabris and Daniel J. Simons.
New York, NY: Crown, 2010.
BF 321 C43 2010
Leaders make the future: ten new leadership
skills for an uncertain world.
Bob Johansen.
San Francisco, CA: Berrett-Koehler Publishers,
c2009.
HD 57.7 J635 2009
Leadership matters.
Rick Hillier.
Toronto, ON: Harper Collins Canada, 2010.
HD 57.7 H545 2010

Liespotting: proven techniques to detect
deception.
Pamela Meyer.
New York, NY: St. Martin's Press, 2010.
BF 637 D42 M49 2010
Looking at law: Canada's legal system.
Patrick Fitzgerald, Barry Wright, Vincent Kazmierski.
Markham, ON: LexisNexis Canada, 2010.
KE 444 F588 2010
Love is letting go of fear.
Gerald G. Jampolsky ; foreword by Carlos Santana;
illustrated by Jack Keeler.
Berkeley, CA: Celestial Arts, c2010.
BF 575 L8 J33 2010
The minute taker's handbook.
Jane Watson.
Toronto, ON: CSAE=SCDA, c2009.
HF 5734.5 W38 2009

More time for you: a powerful system to organize
your work and get things done.
Rosemary Tator and Alesia Latson.
New York, NY: American Management Association,
c2011.
HD 69 T54 T38 2011

PAGE 4

Volume 11 Issue 2 - March/April 2011
Networking for people who hate networking: a
field guide for introverts, the overwhelmed, and
the underconnected.
Devora Zack.
San Francisco, CA: Berrett-Koehler Publishers,
c2010.
HD 69 S8 Z34 2010
The new social learning: a guide to transforming
organizations through social media.
Tony Bingham and Marcia Conner; foreword by
Daniel H. Pink.
Alexandria, VA: ASTD Press; San Francisco : BerrettKoehler Publishers, c2010.
HQ 784 M3 B56 2010
Parenting apart: how separated and divorced
parents can raise happy and secure kids.
Christina McGhee.
New York, NY: Berkley Books, 2010.
HQ 759.915 M394 2010
Power speak: engage, inspire, and stimulate your
audience.
Dorothy Leeds.
Franklin Lakes, NJ: Career Press, c2003.
PN 4121 L44 2003
Program evaluation: alternative approaches and
practical guidelines.
Jody L. Fitzpatrick, James R. Sanders, Blaine R.
Worthen.
Upper Saddle River, NJ: Pearson Education, c2011.
LB 2822.75 W67 2011
Putting children first: proven parenting strategies
for helping children thrive through divorce.
JoAnne Pedro-Carroll.
New York, NY: Avery, 2010.
HQ 777.5 P43 2010
The relaxation response.
by Herbert Benson ; with Miriam Z. Klipper.
New York, NY: Avon Books, [2000].
RA 785 B48 2000

Responding to crises in the modern
infrastructure: policy lessons from Y2K
Kevin F. Quigley.
New York, NY: Palgrave Macmillan, 2008.
HD 61 Q54 2008
Successful onboarding: a strategy to unlock
hidden value within your organization.
Mark A. Stein and Lilith Christiansen.
New York, NY: McGraw-Hill, c2010.
HF 5549.5 I53 S737 2010
The systematic design of instruction.
Walter Dick, Lou Carey, James O. Carey.
Upper Saddle River, NJ: Merrill/Pearson, c2009.
LB 1028.38 D53 2009
The tolerability of risk: a new framework for risk
management.
edited by Frédéric Bouder, David Slavin and Ragnar
E. Löfstedt.
London, UK; Sterling, VA: Earthscan, 2009.
HD 61 T65 2009
Violence against women in Canada: research and
policy perspectives.
Holly Johnson & Myrna Dawson.
Don Mills, ON: Oxford University Press Canada,
2011.
HV 6250.4 W65 J64 2011
Visual meetings: how graphics, sticky notes, &
idea mapping can transform group productivity.
David Sibbet.
Hoboken, NJ: John Wiley & Sons, c2010.
HD 66 S564 2010
Wellbeing: the five essential elements.
Tom Rath, Jim Harter.
New York, NY: Gallup Press, c2010.
BF 637 S8 R37 2010
Women in public administration: theory and
practice.
edited by Maria J. D'Agostino, Helisse Levine.
Sudbury, MA: Jones & Bartlett Learning, c2011.
HQ 1390 D34 2011

PAGE 5

Volume 11 Issue 2 - March/April 2011

1;%<=>*1?=0@=A7@

!"#$!!%&'("$)*+#,
GOOD FAITH BELIEF MUST BE
LEGALLY SPEAKING:

!"#$
2304
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“Section
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A highway patrol officer “clocked” a
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vehicle slowed to 120
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REASONABLY HELD

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primary importance in drug double-yellow centre line and into the on-coming
trafficking cases.
lane to pass a truck. The
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Note-able Quote

9 mm semi-automatic pistol.

Volume 11 Issue 2 - March/April 2011

loaded pistol) and possession of
Court of the Appeal held the officer
“[The officer] either
property obtained by crime (the
was not acting in good faith. “‘Good
knew, or ought to have
money). The judge found that, even if
faith’ and its polar opposite, ‘bad
the officer had a subjective basis as
known, that before
faith’ (or ‘flagrant’ disregard), are
to why he examined the contents of
terms of art in the s. 24(2) lexicon,”
conducting a search
the digital camera for confirmatory
he said. “The absence of bad faith
incidental to arrest he
evidence of driving at high speeds,
does not equate to good faith, nor
his belief was not objectively
was required to consider does the absence of good faith
reasonable. “It seems to me that this
equate to bad faith. To fall at either
whether, on the specific
comes very close to the line and I am
end of this spectrum requires a
facts of his investigation, particular mental state.” Since good
concerned that absent evidence of
wide practice that persons actually
faith connotes an honest and
there was a reasonable
photograph their speedometer while
reasonably held belief, if the officer’s
prospect that what he
they are speeding, I think that it
belief is not reasonable they will not
would be dangerous to permit that
be acting in good faith.
wished to search for
type of search to continue,” said the
would be found.”
Here, the search was warrantless. It
judge. “It is close to the line of what
was purportedly done under the
might be legitimate versus indiscriminate fishing for
common-law power to search a vehicle incidental to
evidence.” Nonetheless, the trial judge admitted the
arrest. The Crown bore the burden of proving it was
gun and money as evidence under s. 24(2) of the
reasonable. Although the officer believed the camera
Charter. The evidence was non-conscriptive and
might contain photographs of the car’s speedometer,
would not undermine trial fairness. As well, the
there was no evidence the officer also believed he
judge found the officer acted in good faith with an
was entitled to examine the camera pursuant to the
honest subjective belief that the camera may have
power of search incidental to arrest. Without a
contained photographs of the vehicle’s speedometer,
finding that the officer believed he was engaged in a
which, among other things, mitigated the seriousness
lawful search, he cannot be said to have acted in
of the Charter breach. The offences were very
good faith. And even if he had testified that he
serious, the gun and cash were crucial to the
believed he was lawfully entitled to examine the
Crown’s case, and the exclusion of the evidence
camera for evidence of dangerous driving, such a
would bring the administration of justice into
belief would not have been objectively reasonable.
disrepute.
Although the reasonable grounds standard does not
The accused appealed to the British Columbia Court
apply to searches incident to arrest, there is still a
of Appeal arguing the trial judge erred in admitting
“reasonable basis” requirement. The officer did not
the evidence. The Crown, on the other hand,
elaborate on the circumstances of previously seeing
suggested the trial judge did not make a mistake in
photographs of speedometers at high rates of speed.
his admissibility ruling.
He never saw the accused holding a camera or
reaching for the glove compartment. It was only
Good Faith & the Search
speculation that the accused used the camera to take
a photograph of his speedometer and then placed
Even though there was no objectively reasonable
the camera in the glove compartment. The officer
prospect that evidence of dangerous driving would
never turned his mind to whether there was a
be located in the camera, the trial judge ruled that
reasonable prospect such evidence would be found
the officer was acting in good faith. In his view, the
in the circumstances in which the camera was
officer sincerely believed that the inspection of the
discovered. The officer “either knew, or ought to
camera might disclose evidence regarding the
have known, that before conducting a search
speedometer speed of the vehicle. However,
incidental to arrest he was required to consider
contrary to the trial judge’s finding, Justice Frankel of
whether, on the specific facts of his investigation,

PAGE 7

Volume 11 Issue 2 - March/April 2011
there was a reasonable “[A] search incidental to arrest takes A search intended to lessen that
possibility falls within the valid
prospect that what he
place after someone is taken into
objectives of the criminal
wished to search for would
justice system.
be found,” Justice Frankel
custody and has had his or her
said in the s. 24(2)
immediate ability to harm others
As well, it was legitimate for
a n a l y s i s . “ Th e l e g a l
[the
officer] to be concerned
substantially diminished. However,
framework for searches
about a vehicle that might
incidental to arrest was
the opportunity for harm is not
contain firearms being towed to
e s t a b l i s h e d t e n ye a r s
a
relatively insecure storage
completely eliminated as there is
before this case arose. It is
facility. If there were firearms is
[the officer’s] failure to
always a possibility that the arrestee the vehicle, and if those
consider whether the
firearms fell into the wrong
will break free and seek to use a
hands, then the public would
examination of the camera
weapon in the immediate vicinity.”
be at risk. [paras. 49-50]
fell within the parameters
set by the Supreme Court
Complete case available at www.courts.gov.bc.ca
of Canada that makes the breach here more serious
than one which is the result of mere inadvertence or
an error in judgment.” Thus, the trial judge erred in
CELL PHONE SEARCH FOR
considering good faith as a mitigating factor in his s.
OWNERSHIP OK
24(2) analysis. The accused’s appeal was allowed,
R. v. Manley, 2011 ONCA 128
the evidence was excluded, the convictions were set
aside, and acquittals were entered.
Following robberies of a Mr. Sub
restaurant
and a music store, police
Safety Concerns
received confidential information
identifying the accused as a suspect
Had the examination of the camera been lawful, the
in the music store robbery. A CPIC
Court of Appeal opined that the photographs the
check revealed there was an outstanding warrant for
officer saw would have justified a search for firearms
him on a break and enter. They also had information
on the basis of safety concerns even though the
he had stolen cell phones and used them with stolen
accused was handcuffed and seated in the back of a
access cards. The accused was arrested for the music
police vehicle. In the photographs the accused was
store robbery and the outstanding arrest warrant for
using a pistol in what appeared to be an unlawful
break and enter offence. He was frisked incidental to
manner. Although the officer did not know when or
the arrest. Police found a concealed knife and a cell
where the photographs were taken, his concern that
phone, as well as two GM car keys (one modified to
the accused had access to firearms was legitimate
break into cars), a hypodermic needle, handcuffs
and provided a reasonable basis for searching the
and a handcuff key, binoculars, and local garbage
vehicle:
bag tags. The police examined the cell phone to
That [the accused] was restrained before his
identify its lawful owner. There was nothing on the
vehicle was searched did not have the effect of
exterior of the phone to identify its owner so it was
negating the concerns that [the officer] had for
opened. The officer pushed various scroll and other
his own safety. By definition, a search incidental
buttons in order to observe the saved data in the
to arrest takes place after someone is taken into
phone and, in the process, found a photograph of
custody and has had his or her immediate ability
the accused holding a sawed off shotgun, which was
to harm others substantially diminished.
taken the day after the music store robbery. The
However, the opportunity for harm is not
phone was losing power so, in order to preserve the
completely eliminated as there is always a
image, it was downloaded and copied. A warrant
possibility that the arrestee will break free and
was subsequently obtained to search the contents of
seek to use a weapon in the immediate vicinity.
the phone.

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Volume 11 Issue 2 - March/April 2011
At trial the accused did not
accused’s, it could serve as
“[I]ncident to a lawful arrest, evidence of a break and enter
challenge the lawfulness of his arrest
but argued the photo should be
and the rightful owner could be
the police have the power to
excluded as evidence because it was
informed that the phone had
search the person arrested
unlawful for the police to examine
been recovered. In addition, the
without a warrant for the
the phone’s contents without a
Crown submitted that the police
warrant. The subsequent warrant the
w
ere entitled to conduct
purpose of ensuring officer
police did obtain, it was argued, was
warrantless searches of cell
safety, and, if there is “some
tainted by the earlier warrantless
phones seized as an incident to
search. The Ontario Superior Court
reasonable prospect of
a lawful arrest.
of Justice, however, ruled that the
securing evidence of the
Justice Sharpe, authoring the
search was reasonable. The judge
offence
for
which
the
accused
opinion of the Court of Appeal,
found that the search and seizure
agreed,
at least in part, with the
conducted at the time of arrest was
is being arrested”, to secure
Crown. He first summed the
carried out for three reasons: (1) for
and preserve that evidence.” power of search incident to
the safety of the police and the
arrest in this way:
public since the accused was
suspected of committing crimes with weapons; (2) to
It is common ground that incident to a lawful
check the ownership of items in the accused’s
arrest, the police have the power to search the
possession; and (3) to check for evidence and to
person arrested without a warrant for the
protect it from destruction. The search warrant was
purpose of ensuring officer safety, and, if there is
valid and, even if there was a Charter breach, the
“some reasonable prospect of securing evidence
photo would have been admissible under s. 24(2).
of the offence for which the accused is being
The accused was convicted by a jury of several
arrested”, to secure and preserve that evidence.
offences related to the two retail robberies and
[para. 33]
sentenced to eight years’ imprisonment.
He then accepted the Crown’s first but narrow
The accused challenged the trial judge’s ruling to the
submission that the police were entitled to search
Ontario Court of Appeal arguing, in part, that the
the phone to establish its ownership:
trial judge erred in holding that the police were
entitled to search the saved data in the phone
The [accused] was arrested for break and enter
without a warrant as an incident to arrest. In his
and, when arrested, he was in possession of a
number of unusual and suspicious items. The
view, the only thing taken in the robbery had been
police had information from a confidential
cash and there was no reasonable prospect that
informant that in the past the [accused] had
searching the cell phone would provide evidence of
stolen cell phones. Ownership of the cell phone
the robbery. Further, he contended that even if the
was relevant to the offences for which the
police had grounds to believe that the cell phone
[accused] had been arrested. In my view, this
had been stolen, they had no power to search the
combination of circumstances provided the
saved data in the cell phone without a warrant. The
police with a lawful basis for conducting a
Crown, on the other hand, suggested that the
cursory search of the cell phone to determine
accused was also arrested for a break and enter and
whether it had been stolen. As I can see no basis
the police had information that he had used stolen
to interfere with trial judge’s factual finding that
cell phones in the past; therefore the police were
the first officer came upon the photograph while
entitled to conduct a cursory warrantless inspection
conducting a search of the cell phone to
determine its ownership, I would uphold the trial
of the cell phone, including its stored data, to
judge’s determination that the cursory search of
ascertain ownership of the phone and determine
the cell phone was lawful.
whether it was stolen. This was a valid purpose
connected to the arrest. If the phone was not the

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Volume 11 Issue 2 - March/April 2011
I wish to emphasize, however that my decision
rests on two points. First, that the police had a
legitimate interest in determining whether the
cell phone had been stolen and second, that the
police did not search the stored data in the cell
phone for any other purpose. According to the
testimony on the voir dire that was accepted by
the trial judge, the cell phone’s telephone
number was identified after the discovery of the
photograph. A telephone number is sufficient
information from which the ownership of a
phone may be determined. Had the examination
of the phone continued after the telephone
number had been found, this would be a
different case. If the telephone number had been
written or inscribed on the exterior of the cell
phone or visible or easily found when the phone
was opened, any further search obviously could
not be justified as a cursory inspection to
determine ownership. Likewise, in a case where
there was no reason to doubt the arrested party’s
ownership of the phone and no link between
ownership and the offence for which the person
was arrested, a search of the stored data in the
phone could not be justified on the basis that the
police were simply trying to determine who
owned the phone. [paras. 37-38]

serious and significant invasion of the Charterprotected privacy interests of arrested persons. If
the police have reasonable grounds to believe
that the search of a cell phone seized upon
arrest would yield evidence of the offence, the
prudent course is for them to obtain a warrant
authorizing the search.

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

ONLY A CONNECTION OR LINK
BETWEEN OFFENCE AND
CRIMINAL ORGANIZATION
REQUIRED
R. v. Drecic, 2011 ONCA 118

As for the Crown’s more general proposition, that the
police could just search a cell phone incident to
arrest, Justice Sharpe found it “neither necessary nor
desirable to attempt to provide a comprehensive
definition of the powers of the police to search the
stored data in cell phones seized upon arrest.”
However, he did make the following caution:
... I would observe it is apparent that the
traditional rules defining the powers of the
police to conduct a search incident to arrest
have to be interpreted and applied in a manner
that takes into account the facts of modern
technology. ... Cell phones and other similar
handheld communication devices in common
use have the capacity to store vast amounts of
h i g h l y s e n s i t ive p e r s o n a l , p r iva t e a n d
confidential information – all manner of private
voice, text and e-mail communications, detailed
personal contact lists, agendas, diaries and
personal photographs. An open-ended power to
search without a warrant all the stored data in
any cell phone found in the possession of any
arrested person clearly raises the spectre of a

The accused was charged with
trafficking in cocaine in association
with a criminal organization,
trafficking in GHB, and trafficking in
cocaine. He was a full patch
member of the Hells Angels. He pled guilty in the
Ontario Superior Court of Justice except to the
criminal organization charge. During his trial he was
convicted. The trial judge found that the drugs were
purchased by another member of the Hells Angels,
who was acting as a police agent, and were for
further distribution and trafficking for profit. He also
found that the accused was the middle man,
facilitating the agent in obtaining these drugs from a
reliable source. Although the drug supplier was not
himself a member of the Hells Angels, the accused
introduced him to the police agent. The accused was
able to use his position as a Hells Angels member to
warrant the reliability of the drug supplier and the
police agent to each other. The trial judge held that
the accused’s membership in the Hells Angels was
the catalyst that brought the parties together and it
played an integral role in the ensuing drug
transactions. “Rules of the club ensure that when
members deal with each other or third parties there
will be no rip offs,” said the judge. “All of these
benefits were at play in the various drug transactions
conducted by [the accused]”.

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Volume 11 Issue 2 - March/April 2011
The accused then appealed to the Ontario Court of
Appeal arguing the criminal organization had to be
“directly involved” in the underlying offence or play
a “direct and integral role in it”. But the Court of
Appeal disagreed. “[T]he “in association with”
requirement of s. 476.12(1) of the Code will be
made out so long as there is a connection or link
between the underlying offence and the criminal
organization,” said the Court of Appeal. “In our
view, the findings upon which the trial judge
concluded that the requisite link had been made out
were reasonable inferences available to him on the
evidence. ... Finally, no issue can be taken with the
trial judge’s finding that the Hells Angels Motorcycle
Club is a criminal organization. The evidence in that
regard is overwhelming.” The accused’s appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

CHARTER BREACH MINOR:
EVIDENCE ADMISSIBLE
R. v. MacDuff, 2011 BCCA 2
Two e m p l oye e s o f a n e n e r g y
company conducted a service check
at a residence and discovered that
electricity was being stolen by the
occupant. The test lasted 6.2 seconds
and disclosed that 19,225 watts of electricity was
stolen during that brief time. They filed a police
report outlining the amount of wattage they believed
was being stolen. A police officer applied for a
telewarrant to search the premises on the basis of the
theft report from the energy company as well as
other investigations he conducted. The Information
to Obtain stated that the telewarrant was being
applied for “because it is impracticable for the
Informant to appear personally because: ‘There are
no JJPs available at the local courthouse today, or
any time this week.’” The police executed the search
warrant at the accused’s residence and found a
sophisticated, multiple room grow operation in the
basement. There were 1,619 marihuana plants in
two stages of production, valued between $94,000 $141,000 per crop. The police also found a hydro
bypass used to steal electricity.

At trial in British Columbia Provincial Court the
officer amplified the evidence regarding the
impracticability of appearing in person. He said he
called the courthouse prior to starting the paperwork
for the warrant to see if there was a Judicial Justice of
the Peace (JJP) available. He was told that there were
none available that day nor would there be any
available for the rest of the week. However, the
officer made no inquiries about the availability of a
judge to hear the warrant. The trial judge quashed
the telewarrant because s. 487.1(4) requires that the
officer include a statement of the circumstances that
make it impracticable for him to appear personally
before a justice, which the officer failed to do.
However, the trial judge admitted the evidence
pursuant to s. 24(2) of the Charter. The accused was
convicted of producing marihuana, possessing
marihuana for the purpose of trafficking, and theft of
electricity.
The accused appealed to the British Columbia Court
of Appeal submitting the trial judge erred in
admitting the evidence under s. 24(2). The Crown,
on the other hand, suggested the trial judge did not
err.
Justice Bennett, speaking for the Court of Appeal,
upheld the admissibility of the evidence. Although
the impact of the breach on the Charter-protected
privacy interests of the accused was serious - the
police searched his home - the Charter violation was
relatively minor. “The police officer obtained a
warrant from a member of the judiciary,” said Justice
Bennett. “He provided the JJP with all of the
information he had obtained. He ensured that there
was no JJP who could hear his application in person
within a reasonable time frame. His only error was
to fail to confirm that a judge was unavailable to
hear the application, based on his (correct)
understanding that judges were not to be asked to
issue daytime warrants. The trial judge found no bad
faith on the part of the officer. This conduct is at the
minor end of the Charter breach spectrum.” As well,
the evidence seized was highly reliable and key to
the prosecution, without it there was no case. These
factors weighed in favour of the inclusion of
evidence and the accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

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Volume 11 Issue 2 - March/April 2011

UTTERANCES MORE THAN
SMALL SNIPPETS OF A
CONVERSATION
R. v. Yates, 2011 ABCA 43
The accused was arrested three days
after a man was killed from a gunshot
wound to the back of his head. The
deceased’s trailer was then set on fire.
The accused was taken to the police
detachment where he exercised his right to speak to
counsel. The next day he admitted to the
investigating officers that he shot the victim and set
fire to the residence. He also admitted his guilt when
being fingerprinted and processed and was
overheard making inculpatory statements while
talking to another prisoner at the detachment. About
a month later, while being transported with two
other prisoners in a sheriff’s van from the
correctional center to the courthouse, a sheriff
overheard comments made by the accused to the
other prisoners. The sheriff was not paying special
attention to the beginning of the conversation
between the prisoners until he realized the accused
was talking about the crime. The sheriff overheard
the accused and recorded the following statements
in his notebook within an hour after they were
made:
✴ “He was skidding on my sister, so I shot him
in the fucking head.”
✴ “It was the only honourable thing to do.”
✴ “I got my rifle, I got an AK-47A, and I hid it
the night before.”
✴ “I went over there the next day, when I was
sober, and talked to him.”
✴ “I asked him why he had to be such a fucking
goof.”
The Alberta Court of Queen’s Bench trial judge
concluded that these utterances could be admitted
into evidence as they were voluntary. The accused
was found guilty by a jury of first degree murder.
However, he appealed his conviction arguing,
among other grounds, that the trial judge erred in
admitting the utterances overheard in the prisoner's
van as recorded by the sheriff because they were
fragmented, not recorded verbatim, and incomplete
in terms of context.

The Alberta Court of Appeal dismissed the accused’s
appeal. The statements made by the accused were
more than partial thoughts. Although the sheriff did
not hear the entire conversation in the prisoner van,
he paid special attention once he determined the
accused was speaking about his crime. The
comments recorded were longer and more
numerous than just a small snippet of a statement.
There was context to the utterances from which the
true meaning of the accused’s words could be
inferred.
Complete case available at www.albertacourts.ab.ca

SUPREME COURT TAKES
LONGER TO DECIDE CASES
In the “Bulletin of Proceedings: Special Edition,
Statistics 2000 to 2010” the workload of the
Supreme Court of Canada was reported. In 2010 the
Supreme Court heard 65 appeals, down from 72 in
2009. This was the second lowest number of appeals
heard by Canada’s top court in a single year during
the last decade (58 appeals were heard in 2007).

Case Life Span
The time it takes for the Court to render a judgment
from the date of hearing the case is at an eleven year
high. In 2010 it took 7.7 months for the Court to
announce its decision after hearing arguments, up
from 7.4 months in 2009. Overall it takes 18.8
months, on average, for the court to render an
opinion from the time an application for leave to
hear a case is filed. This too is up from the previous
year (18.2 months).

Applications for Leave
Ontario was the source of most applications for
leave to appeal at 139 cases. This was followed by
Quebec (117), British Columbia (66), the Federal
Court of Appeal (61), Alberta (29), Nova Scotia (13),
New Brunswick (11), Newfoundland (9), Manitoba
(8), Saskatchewan (5), Prince Edward Island (4),
Nunavut (2), and Northwest Territories (1). No
applications for leave came from the Yukon.

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Volume 11 Issue 2 - March/April 2011

Average Time Lapses (in months) between hearing and judgment

8
6

5.8

5.6

5.6

5.9

5.2

5.1

7.4

7.7

2009

2010

6.6
4.8

4.0

4
2
0
2000

2001

2002

2003

2004

2005

2006

2007

2008

Appeals Heard

Appeal Judgments

Of the 65 appeals heard in 2010, the Federal Court
of Appeal was the origin of the most appeals of any
source at 18, followed by British Columbia (13),
Ontario (10), Alberta (10), Quebec (9),
Saskatchewan (3), and Manitoba (2). No appeals
originated from New Brunswick, Nova Scotia,
Northwest Territories, Prince Edward Island, Yukon,
Newfoundland, or Nunavut.

There were 69 appeal judgments released in 2010,
down from 70 in 2009. Only four decisions last year
were delivered from the bench while the remaining
65 were delivered after being
reserved. Twenty nine (29) of
the appeals were allowed
Allowed
while 40 were dismissed. The
42%
Dismissed
court was more unanimous
58%
than the previous year. In
2010, 75% of the Court’s
decisions were unanimous.
The remaining 25% were
split.

Of the appeals heard in 2010,
66% were civil while the
remaining 34% were
criminal. Eleven percent
(11%) of the criminal cases
dealt with Charter issues,
down from 15% in 2009.

Criminal
34%
Civil
66%

Source: www.scc-csc.gc.ca

Fifteen (15) of the appeals
heard in 2010 were as of
right. This source of appeal
Split
25%
includes cases where there is
a dissent on a point of law in
Unanimous
a provincial court of appeal.
75%
The remaining 50 cases had
leave to appeal granted. This
is where a three judge panel
gives permission to the applicant for the appeal to be
heard.

ONTARIO COURT OF APPEAL FAST FACTS:
2010
• court made up of 22 full-time judges and two
supernumerary judges.
• appeals were 38% civil, 32% criminal, 23%
inmate, 7% family.
• of all appeals 280 were allowed, 722 were
dismissed, and 315 were disposed of otherwise.
Disposed of otherwise includes appeals in which
the parties have settled their matter or matters have
been dismissed on consent prior to the hearing.
Source: Court of Appeal For Ontario, Annual Report 2010

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Volume 11 Issue 2 - March/April 2011

POLICE BELIEVED THEY HAD
GROUNDS FOR ARREST:
EVIDENCE ADMITTED

An Ontario Superior Court justice rejected the
accused's argument that he had been arbitrarily
detained. The accused submitted that the sobriety
check and Highway Traffic Act (HTA) infringement
were after-the-fact rationalizations to justify a
R. v. Deenah, 2010 ONCA 775
racially motivated stop to investigate possible
A police officer was patrolling a high
criminal activity. But the judge disagreed. She found
crime area to check the sobriety of
that the police were entitled to stop the car observed
drivers leaving bars. An officer saw a
leaving a bar late at night to determine if evidence
vehicle leave a restaurant at about
existed to make a breath demand under the Criminal
2:53 am. Police bulletins indicated
Code. Furthermore, the accused drove through a red
there had been drugs, drug trafficking, and guns
light without stopping, an HTA infraction. The officer
around this restaurant. He followed the vehicle with
did nothing wrong in asking the accused to come
the intention of pulling it over and checking the
back to the police car to determine whether there
driver’s sobriety. The vehicle
were grounds for a roadside test. The
turned right at an intersection
officer smelled alcohol and was trying
“There is a difference
without coming to a full stop
to determine the source of the odour.
at a red light. Police pulled
The judge concluded that the initial
between unfairly secondthe vehicle over and the
stop and questioning regarding sobriety
guessing the police officers,
accused appeared to be
and the HTA infraction, as well as
and subjecting the basis for
leaning away as if to mask
asking him to exit the vehicle,
the odour of alcohol on his
the arrest of members of the amounted to a lawful detention and did
breath. The officer smelled
not breach s. 9 of the Charter.
public to a reasonable legal
alcohol in the vehicle but the
accused said he had not
standard, which the police
The search, however, was a different
been drinking. A passenger,
matter.
A search incidental to arrest
should always try to meet.”
leaning forward, said he had
requires a lawful arrest. Here, the
been drinking, not the
accused argued the arrest was illegal
accused. The officer was a little suspicious of the
because the police did not have reasonable grounds
passenger’s behaviour because he would answer the
to make it. In determining whether reasonable
questions put to the accused. While scanning the
grounds exists, the arresting officer must subjectively
inside of the vehicle with his flashlight the officer
have reasonable grounds and the grounds must also
saw two small, white rock substances that were
be justifiable from an objective point of view. But in
“possibly crack cocaine” on the floor mat. The
this case the judge was not persuaded that there was
officer asked the accused to step from the vehicle
a reasonable subjective or objective basis for
and come to the police car so he could determine
arresting the accused or the passenger for possessing
where the smell of alcohol was coming from. The
a controlled substance. The judge stated:
accused was arrested for possessing a controlled
As has often been written, traffic stops can be
substance, patted down, and found to be wearing a
abused by the police for improper purposes. The
bullet proof vest. The passenger was also arrested for
police are generally aware that they cannot
possessing a controlled substance and the vehicle
search a car without lawful authority, and a
was searched. Police located a loaded revolver, a
search often flows from the arrest of the driver of
loaded semi-automatic handgun, 23 grams of crack
the motor vehicle for a criminal offence.
cocaine, 5.3 grams of powdered cocaine, digital
scales and $345. At cells the accused was also
The power to arrest in the circumstances of
issued a ticket for running the red light. The analysis
traffic stops can be misused by the police in
of the two small white pieces from the floor mat
order to carry out the search of a motor vehicle
revealed they did not contain crack cocaine.
that the police have no lawful right to search.
The Courts must be vigilant as to the basis of the

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Volume 11 Issue 2 - March/April 2011
police officer's grounds for arrest. On the other
hand, I agree with those Courts that have stated
that trial judges cannot in essence, "arm chair
quarterback" the police officers who have to
make quick decisions based on the information
they have in often urgent situations. [paras.
78-79]

under s. 24(2). The officers believed they had
authority to arrest the accused. The motions judge
found that the officers acted in good faith. She did
not at any point reject their evidence that they
believed they had the necessary grounds for
arrest. Furthermore, it was open to the judge to
consider the fact that these events took place in a
high crime area as part of her assessment of police
conduct under s. 24(2). The accused’s appeal was
dismissed.

And further:
Certainly, taking all of the factors together,
including the size and description, or lack
thereof, of the two white pieces, I am not
satisfied the officers had either the subjective or
objective components of reasonable and
probable grounds to arrest the applicants for
possession of a controlled substance.

Complete case available at www.ontariocourts.on.ca

Editor’s Note: Facts and motion judge’s ruling
taken from R. v. Deenah & Honnigan, [2007] O.J.
No. 1298 (ONSCJ).

.........

In this case, I find that the police officers, with
all the information available to them at that time
simply did not have enough grounds to arrest the
applicants for possession of a controlled
substance. There is a difference between unfairly
second-guessing the police officers, and
subjecting the basis for the arrest of members of
the public to a reasonable legal standard, which
the police should always try to meet. [para.
83-85]

911 ENTRY, DETENTION, PAT
DOWN & ARREST ALL LAWFUL
R. v. Mehari, 2011 ABCA 67

Since the accused was not lawfully arrested the
search of the vehicle was unlawful and breached s. 8
of the Charter. However, the judge admitted the
evidence under s. 24(2). Although she found the
police acted without the required reasonable
grounds to arrest, the police acted believing they
had the grounds primarily based on the two small
white pebble like substances seen on the floor mat
of the vehicle. In her view, the police officers were
mistaken about the legal effect of the evidence
available to them, but they did not fabricate the
evidence in order to carry out a search of the
vehicle. Nor did they act in bad faith. There was no
flagrant police misconduct, systemic or institutional
failure, or inadequate training. Plus the judge
considered that the police were patrolling a high
crime area. The accused was convicted.
The accused then appealed his conviction and the
pre-trial ruling to the Ontario Court of Appeal.
Whether or not there was a s. 9 breach, the Court of
Appeal ruled the evidence would still be admissible

After being assaulted and threatened
with a knife, a young woman
escaped from an apartment and
called 911. She told the 911
operator that she believed her female
acquaintance was still in the suite against her will
with a number of black males, one of whom had a
knife and threatened them with it. She was
concerned for her friend’s safety. Two police officers
interviewed the caller in person shortly after she
made the 911 call. She did not know the apartment
building’s address but described where the building
was and how to get to the unit. One of the
interviewing officers was familiar with the building
as described. It was known to him as a “run-down
drug flop-house type ... of apartment complex”.
Backup officers were requested and they went
upstairs using the directions provided. They could
hear men’s voices and music coming from the suite.
The officers were discussing a course of action when
a man attempted to exit the apartment. All four
officers entered with their weapons drawn, having
concerns for their safety and that of the woman they
believed was being held inside against her will.
There were five men and a woman in the apartment.
All were detained to investigate the unlawful
confinement complaint. A caucasian man and

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Volume 11 Issue 2 - March/April 2011
woman were released while the
other four men, all darkcomplexioned, were ordered to lay
face-down on the floor and were
handcuffed, while shotguns were
trained on them. The apartment
was sparsely furnished and drug
paraphernalia and two cellular
phones were in plain sight.

police the right to search an individual,
the trial judge found that officer safety
made it lawful to handcuff the accused
and perform a pat-down search. The
arresting officer had both subjective and
objective reasonable grounds to arrest the
accused for possessing a controlled
substance and to search his pocket in
relation to the crime for which he was
arrested. The evidence was admitted and
the accused was convicted of possessing
cocaine for the purpose of trafficking.

“The police may briefly
detain a person where
they have a reasonable
suspicion that the
person is implicated in
a recent or ongoing
criminal offence.”

While one of the other men was
patted down, the accused was observed moving his
hand from his back to his front right pocket. He
repeated this gesture despite being told to stop.
Believing he was in possession of a weapon, an
officer patted the accused’s right front pocket, feeling
a hard irregular object he believed to be a controlled
substance. He was arrested for possessing a
controlled substance and searched. Police found
38.9 grams of crack cocaine in rock form in a clear
plastic baggie in his pocket and two tightly rolled
bundles of currency totalling $1,925. He was
rearrested for trafficking in a controlled substance
and possessing proceeds of crime. Neither the
accused’s clothing nor his appearance matched that
of the knife-wielding assailant described by the
caller, but he was of somewhat similar height, skin
colour, and age.
At trial in Alberta Provincial Court the judge ruled
that the accused’s Charter rights had not been
breached. She found the warrantless search was
lawful since police had reasonable grounds to
believe that an occupant was in distress and entry
was necessary to protect life and prevent serious
injury. In her view the 911 call and the subsequent
interview of the caller provided such grounds. As for
the lack of an actual address, it was irrelevant. The
caller had provided specific information regarding
the interior layout of the apartment building which
allowed the police to know the location complained
of in the 911 emergency call. The 911 call also
provided the authority necessary to subsequently
detain and pat-down the accused. The police had
reasonable grounds to detain him for investigative
purposes and to suspect he may be connected to the
crime alleged by the 911 caller. As for the search, it
too was lawful. Although the power to detain for
investigative purposes does not automatically give

The accused appealed, arguing that the trial judge
erred in holding that: (1) the warrantless entry and
search of the apartment was lawful; (2) the officers
were entitled to conduct a pat-down search; and (3)
the officer had reasonable and probable grounds to
arrest him. Acknowledging that these events
occurred relatively quickly, the Court of Appeal
noted there were four stages which culminated in
the accused’s arrest for the drug offence:
I.

the warrantless entry of the apartment in
response to the 911 call;
II. the investigative detention;
III. the pat-down search; and
IV. the pocket search.
These stages involved challenges to both ss. 8
(unreasonable search and seizure) and 9 (arbitrary
detention) of the Charter.

Stage I: Warrantless Apartment Entry
In certain limited circumstances the police may
enter a home without a warrant, such as when
police are responding to a 911 call. In such cases,
“the importance of the police duty to protect life
warrants and justifies a forced entry into a dwelling
in order to ascertain the health and safety of a 911
caller. The public interest in maintaining an effective
emergency response system is obvious and
significant enough to merit some intrusion on a
resident’s privacy interest. However, ... the intrusion
must be limited to the protection of life and safety.
The police have authority to investigate the 911 call
and, in particular, to locate the caller and determine
his or her reasons for making the call and provide

PAGE 16

Volume 11 Issue 2 - March/April 2011
such assistance as may be required. The police
backup was only prompted by one of the men
authority for being on private property in response to
leaving the apartment.”
a 911 call ends there. They do not have further
permission to search premises or otherwise intrude
Stage II: Investigative Detention
on a resident’s privacy or property. [T]he interference
“The police may briefly detain a person where they
must be necessary for carrying out the police duty
have a reasonable suspicion that the person is
and it must be reasonable. A reasonable interference
implicated in a recent or ongoing criminal offence,”
in circumstances such as an unknown trouble call
said the Court. Citing Mann, “police officers may
would be to locate the 911 caller in the home. If this
detain an individual for investigative purposes if
can be done without entering the home with force,
there are reasonable grounds to suspect
obviously such a course of action is
in
all the circumstances that the
m a n d a t e d . E a ch c a s e w i l l b e
“The police may
individual is connected to a particular
considered in its own context,
briefly detain a
crime and that such a detention is
keeping in mind all of the surrounding
necessary.” The trial judge found that
circumstances.” (citing R. v. Godoy)
person where they
there were reasonable grounds to
have a reasonable
So even though this case dealt not
suspect that the accused may have been
suspicion that the
with the caller’s safety, but that of her
connected with the crime reported by
friend, a higher threshold need not be person is implicated in the 911 caller. Even though his clothing
placed upon the police before they
did not match those described by the
a recent or ongoing
act. “The decision to enter the
caller, there were valid reasons for the
premises ought not to be based upon
criminal offence.”
police suspicion: the accused had
the location of the caller,” said the
similar skin colour and was
Court of Appeal. “Rather, it should be based on the
approximately the same age as the man described
reasonableness of the decision to enter the premises
by the caller; the reported crime involved stolen
assessed against all of the circumstances, notably the
drugs; and the apartment was littered with drug
extent to which interference with individual liberties
paraphernalia. The initial detention was lawful, as
is necessary to perform the officer’s duty, the liberty
was the accused’s continued detention through and
interfered with and the nature and extent of the
including the search. The purpose of the officers’
interference.” It was not necessary for the officer to
warrantless entry into the apartment was to
have taken the caller to the neighbourhood and
investigate the confinement of a hostage. This would
confirm the apartment building. The caller had given
include the period of time during which the police
specific information about the location of the
were confirming the identities of the detainees in
apartment within the building and a description of
order to determine whether the knife-wielding
the layout of the building which enabled an officer
suspect was in the apartment.
to identify the building and the apartment as one
with which he was familiar. Nor did anything turn
Stage III: Pat-down Search
on the fact the officers spent time in the hallway
Where a person has been lawfully detained, a police
outside the apartment. “The officers were dealing
officer may engage in a protective pat-down search
with a complaint of a hostage situation where the
of the individual. But unlike the search power
caller had indicated that there were a number of
incidental to arrest, the power to search incidental to
men in the apartment, one of whom was armed with
an investigative detention is very narrow. “It arises
a knife,” said the Court of Appeal. “The decision to
from the general duty of the police to protect life,”
await backup was reasonable and the entry without

“[A search incidental to an investigative detention] arises from the general duty of the
police to protect life. It does not exist as a matter of course. The officer must believe on
reasonable grounds that his safety or the safety of others is at risk.”
PAGE 17

Volume 11 Issue 2 - March/April 2011
said the Court. “It does not exist as a
matter of course. The officer must
believe on reasonable grounds that his
safety or the safety of others is at risk.”
Here, the pat-down search did not go
beyond the scope of what was
authorized. The trial judge was satisfied
that the pat-down search was
conducted for officer safety, even
though the accused was face down and
handcuffed behind his back. The officer
was concerned that the accused was
trying to reach for something in his
pocket that might be a weapon.

case, the officer had previous
experience in conducting patdown searches and was familiar
with the tactile sensation of
touching keys, wallets, money,
cell phones and controlled
drugs. There were also a number
of objective factors including
that the 911 call had described a
dispute over missing drugs, the
apartment was littered with drug
paraphernalia and the accused
kept trying to get at something in
his pocket. The trial judge applied the proper legal
test. She correctly assessed both the subjective and
objective elements of reasonable grounds.

“[Reasonable grounds for
an arrest] is based not only
upon a police officer’s
subjective belief, but also
in light of what a
reasonable person in the
position of the officer
would conclude.”

Stage IV: Reasonable Grounds for Arrest
The police officer was acting on more than merely a
hunch or intuition that what he felt in the accused’s
pocket was drugs. Reasonable grounds for an arrest
“is based not only upon a police officer’s subjective
belief, but also in light of what a reasonable person
in the position of the officer would conclude.” In this

Complete case available at www.albertacourts.ab.ca

www.10-8.ca

Heroes & Rescue Award winners Gala 2010

The JIBC Foundation Gala on December 1, 2010 at the Hotel Vancouver.

PAGE 18

Volume 11 Issue 2 - March/April 2011
๏Lac Seul Police Service
๏Lacombe Police Service
๏LaSalle Police Service
๏Abbotsford Police Department
๏Laval Police Service
๏Akwesasne Mohawk Police Service ๏Lethbridge Police Service
๏Alberta Sheriffs Service
๏London Metropolitan Police
๏Barrie Police Service
Service
๏BC Conservation Officer Service ๏London Police Service
๏Belleville Police Service
๏Longueuil Police Service
๏Brandon Police Service
๏Medicine Hat Police Service
๏Bridgewater Police
๏Mont-Tremblant Police Service
๏British Columbia Sheriffs Service ๏Moose Jaw Police Service
๏Bromont Police Service
๏Morden Police Service
๏Calgary Police Service
๏Nelson Police Department
๏Camrose Police Service
๏New Glasgow Police
๏Canadian Forces
๏New Westminster Police Service
๏Cape Breton Regional Police
๏Niagara Parks Police Service
๏Central Saanich Police Service
๏Niagara Police Service
๏Charlottetown Police Department ๏Nishnawbe-Aski Police Service
๏Chatham-Kent Police Service
๏North Bay Police Service
๏Cornwall Community Police
๏Oak Bay Police Department
Service
๏Ontario Provincial Police
๏Corps of Commissionaires
๏Ottawa Police Service
๏Dakota Ojibway Police Service
๏Owen Sound Police Service
๏Delta Police
๏Oxford Police Service
๏Deux-Montagnes Police Service
๏Peel Regional Police Service
๏Dryden Police Service
๏Perth Police Service
๏Durham Police Service
๏Peterborough-Lakefield
๏Edmonton Police Service
Community Police Service
๏Estevan Police Service
๏Police de Roussillon
๏Fredericton City Police Force
๏Port Hope Police Service
๏Gananoque Police Service
๏Port Moody Police Department
๏Granby Police Service
๏Prince Albert Police Service
๏Greater Sudbury Police Service
๏Rama Police Service
๏Greater Vancouver South Coast
๏RCMP
Transit Authority Police Service
๏Regina Police Service
๏Guelph Police Service
๏Riviere-du-Loup Police Service
๏Halifax Regional Police
๏Rothesay Regional Police Force
๏Halton Regional Police Service
๏Saanich Police Department
๏Hamilton Police Service
๏Saint John City Police Force
๏Hanover Police Service
๏Saint-Georges Police Service
๏Kawartha Lakes Police Service
๏Saint-Jean-sur-Richelieu Police
๏Kingstons Police Service
Service

Agencies involved in 2010
Olympic Security

PAGE 19

๏Sarnia Police Service
๏Saskatoon Police Service
๏Saugeen Shores Police Service
๏Sault Ste. Marie Police Service
๏Service de police de la ville de
Montreal
๏Shelburne Police Service
๏Sherbrooke Police Service
๏South Simcoe Police Service
๏St Thomas Police Service
๏St-Eustache Police Service
๏Ste-Marie Police Service
๏Stirling-Rawdon Police Services
๏Stratford Police Service
๏Strathroy-Caradoc Police Service
๏Taber Police Service
๏Therese-de-Blainville Police
Service
๏Thetford Mines Police Service
๏Thunder Bay Police Service
๏Timmins Police Service
๏Toronto Police Service
๏Treaty Three Police Service
๏Trenton Police Department
๏Trois-Rivieres Police Service
๏Truro Police
๏United Chiefs and Council of
Manitoulin Anishnaabe Police
Service
๏Vancouver Police Department
๏Victoria City Police Department
๏Ville De Quebec Police Services
๏Ville de Saguenay Police Service
๏Waterloo Regional Police Service
๏West Grey Police Service
๏West Nipissing Police Service
๏West Vancouver Police Department
๏Weyburn Police Service
๏Windsor Police Service
๏Wingham Police Service
๏Winkler Police Service
๏Winnipeg Police Service
๏York Regional Police Service

Volume 11 Issue 2 - March/April 2011

PURPOSIVE APPROACH USED IN
CARTRIDGE MAGAZINE
INTERPRETATION
R. v. Cancade, 2011 BCCA 105
The accused ordered seven magazine
casings from a U.S. mail order
supplier for delivery to a Canadian
mailing address. When he attempted
to pick them up he was arrested. The
magazine casings, sometimes referred to as shells or
containers, had a 30-round capacity but did not
have an internal spring, a bottom plate, or a follower
plate, all parts that would be needed to be installed
in order to make the casings functional as
magazines. The accused, knowledgeable in
weapons, intended to make alterations to the casings
so they would comply with Canadian law, which
requires a casing only have a maximum five (5)
round capacity.

“The modification required to make these shells
functional was, by all accounts, simply the addition
of three readily available and easily installed parts.”
Convictions of importing and possessing a
prohibited device followed.
The accused then appealed, again submitting that
the casings were not prohibited under s. 84. He
argued for a strict interpretive approach to the
legislation. In his view, an object which has the
future capacity with alternation and no present
capacity to feed ammunition into the firing chamber
of a firearm was not a “cartridge magazine” in law.
He submitted that by comparing the French and
English versions of the relevant weapons legislation
it was clear that the verb used in the French version
was present tense, meaning the magazine needed
present capacity. He suggested the trial judge erred
when she found the word “may” in the English
version spoke not only to a present capacity but also
a future capacity. The Crown, however, contended
that the French version of the definition could
encompass a future ability of the device to be
rendered easily serviceable to feed bullets into a
firearm. In the Crown’s view, a purposive approach
to construing the legislation was needed, taking into
account the intent of Parliament to keep dangerous
high capacity weapons out of public circulation.

At trial in British Columbia Provincial Court the
accused argued the casings were only components
which could become either prohibited or lawful
devices. Since the casings were simply the outside of
a magazine, he submitted the objects seized were
not operable and did not fall within the definition of
a cartridge magazine. The Crown, on the other hand,
suggested that the items as
Justice Hall, writing for the unanimous
imported met the definition
British Columbia Court of Appeal,
“[A] purposive approach to
of a prohibited device, were
rejected the accused’s interpretive
this legislative provision is the approach which would have supported
capable of becoming
operable with the addition
proper one to be adopted
a strict construction of the relevant
of readily available parts,
provisions.
Instead, he adopted a
here ... in construing this
and had not been altered
purposive approach to the legislation. “I
b e f o r e i m p o r t a t i o n t o legislation having regard to the consider a purposive approach to this
comply with the regulations.
legislative provision is the proper one to
intention of Parliament to
The trial judge ruled that the
be adopted here ... in construing this
imported items fell within severely restrict the availability legislation having regard to the
the definition of cartridge of high capacity weapons and intention of Parliament to severely
magazine contained in s. 84
restrict the availability of high capacity
their appurtenances.”
of the Criminal Code. In her
weapons and their appurtenances,” said
view, the definition of cartridge magazine included
Justice Hall. The trial judge did not err in finding the
the shell, or container, though not completely
accused was in possession of a prohibited cartridge
assembled into a functional magazine. “The fact that
magazine and guilty of ss. 91(2), 92(2) and 104(1)(a)
these casings were not immediately capable of
offences under the Criminal Code. The accused’s
feeding ammunition into a firing chamber without
appeal was dismissed.
the addition of several parts is immaterial,” she said.
Complete case available at www.courts.gov.bc.ca

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Volume 11 Issue 2 - March/April 2011

CROSS-EXAMINATION
PERMITTED TO ASSIST IN
ASSESSING BASIS FOR WARRANT
R. v. Vi, 2010 BCCA 496
The police obtained a search warrant
for a home and found a marihuana
grow operation. In British Columbia
Provincial Court the accused sought
to attack the validity of the warrant
but his application to cross-examine the police
officer who swore the Information to Obtain (ITO)
before a judicial justice of the peace (JJP) was
dismissed. The trial judge said that permission to
cross-examine the informant would be granted if he
was satisfied that it was necessary to enable the
accused to make full answer and defence. Although
the judge accepted that cross-examination would
likely disclose that there was a good deal of
information known to the informant that he did not
disclose in the ITO, the judge opined that “it is not
incumbent on an informant to put down everything
he found or did not find, or pursued or did not
pursue, in the course of his investigation. He need
only provide facts which in total will support the
issuance of the warrant, and the issuing authority
(here the [JJP]) is entitled to rely on the accuracy of
those facts.” Since there was nothing to indicate that
the informant, a police officer with 25 years of
police experience, would abandon or recant his
averments in the ITO, the application to cross
examine was denied. The accused was convicted of
producing marihuana and possessing it for the
purposes of trafficking.

In this case, the accused wanted to expose
weaknesses in the ITO by demonstrating that the
officer did not make full and frank disclosure or his
observations did not support reasonable grounds.
But he was prevented from doing so because the
trial judge held that a informant need only put down
enough to support the warrant, which, along with
the “recantation” test, found no support in law.
Complete case available at www.courts.gov.bc.ca

ALTERNATIVE REASONING
JUSTIFIES ADMISSION
R. v. Murray, 2011 ONCA 174
It is not unusual for courts to use
alternative reasoning in concluding
that even though the police violated
a person’s Charter rights the
evidence should nonetheless be
admissible. A recent Ontario Court of Appeal
decision provides an example of how courts use this
approach. In this particular case the accused was
appealing his conviction. He was arguing that his
arrest was unlawful and therefore the drugs police
seized should have been excluded as evidence
against him:

On appeal to the British Columbia Court of Appeal,
the accused’s convictions were set aside and a new
trial was ordered. Justice Donald, delivering the
unanimous Court of Appeal judgment, concluded
the trial judge used the wrong test. “If it were
necessary to demonstrate that cross-examination will
cause a deponent to concede he did not have
reasonable grounds that an offence has occurred, a
practically impossible task, then there would never
be an opportunity to cross-examine on the
information to obtain,” he said. ”All the defence
must show is a reasonable likelihood that it will
assist the court in assessing the basis of the warrant.”

PAGE 21

Assuming, without deciding, that the arrest of
the [accused] in the circumstances was
unlawful, given the knowledge the police
officers had, they were fully justified in taking
control of the [accused] and taking steps to
ensure their safety as part of a lawful
investigative detention. In this context, the
police would have been entitled to conduct a
protective pat-down search of the [accused].
Had this been done, the officers would
inevitably have discovered a digital scale in the
[accused’s] left pants pocket. They would also
have felt a large bulge, soft in texture, in his right
pants pocket. Further investigation would have
revealed that the [accused] had eight prior
trafficking and/or possession convictions. In
combination, this would have afforded the
police ample reasonable grounds to arrest and
search the [accused], at which point the drugs in
his right hand pocket would have been
discovered.

Volume 11 Issue 2 - March/April 2011
Thus, even if the police lacked reasonable
grounds to arrest the [accused] when and as they
did, he would have been lawfully arrested in any
event and the drugs seized. Consequently, the
impact on the [accused’s] Charter rights is
minimal. Given that there is no finding that the
police deliberately or flagrantly breached the
[accused’s] Charter rights and having regard to
society’s interest in an adjudication on the
merits, the evidence in our view would have
been admitted. [paras. 1-2]

sentencing judge could not be bound by the legal
fiction included in the joint submission that the
maximum was ten years.” Nor was the sentencing
judge required to invite further submissions when
she determined that the maximum was higher for the
five counts than submitted by counsel. “There was
nothing that could have been said by counsel,” said
Justice Low. “The law had changed, the maximum
penalty had been increased and the court had to
give effect to the will of Parliament.” The accused’s
appeal was dismissed.

The accused’s appeal was dismissed.

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

Complete case available at www.courts.on.ca

s. 150.1(4) CC: ‘ALL’ REASONABLE
STEPS MUST BE TAKEN

JOINT SENTENCING
SUBMISSION REJECTED

R. v. Mastel, 2011 SKCA 16

R. v. Thow, 2010 BCCA 538
After pleading guilty to 20 counts of
fraud over $5,000 in British
Columbia Provincial Court, the
accused was sentenced to nine years
imprisonment on each of five counts
and seven years on the remaining 15 counts with all
the sentences to be served concurrently, less time
spent in custody. The total amount of the frauds was
more than $10 million. The nine year sentences
were more than the seven years put forth in a joint
submission of counsel. So the accused appealed.
Justice Low, delivering the opinion of the British
Columbia Court of Appeal, disagreed that the judge
erred by imposing a sentence greater than the joint
submission. “It is well understood that a sentencing
judge is not bound to follow a joint submission as to
the appropriate sentence to be imposed but the
judge should give appropriate weight to such a
submission,” said Justice Low. “The court has an
overriding discretion and must impose a fit
sentence.” In this case, the joint submission was
presented in Provincial Court on the basis that the
maximum sentence on each count of fraud was ten
years. However, the maximum sentence for the five
counts drawing the nine year sentence had been
raised to 14 years when parliament amended the
Criminal Code. Thus, there was a legal flaw in the
joint submission and, “as a matter of law, the

The accused, a 41 year old male,
met the complainant, a young girl,
when she was 13 years of age. Over
the course of about two years they
had numerous conversations with
each other. When the accused was 43 he met the
then 15 year old, grade 10 complainant at his home
one evening. She drank some coolers he provided
and the two ended up kissing. She then performed
oral sex on him which was followed by intercourse.
The accused was subsequently charged with sexual
assault and sexual touching of a person under the
age of 16 contrary to the Criminal Code.
At trial in Saskatchewan Provincial Court the judge
found the accused had an honest belief the
complainant was 16 years of age or older. The judge
also found that this was a case in which no further
inquiries were necessary to determine the age of the
complainant even with the significant discrepancy in
their ages.
The Crown appealed the accused’s acquittal arguing
the trial judge erred in law in his application of s.
150.1(4) of the Criminal Code and that the accused
was required to take positive steps to ascertain the
age of a potential sexual partner. Here, the Crown
submitted that that accused took no steps and was
willfully blind to the fact that the complainant was
underage.

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Volume 11 Issue 2 - March/April 2011

Justice Lane, authoring the decision for the
Saskatchewan Court of Appeal, agreed with the
Crown that the the trial judge erred in law and
misdirected himself as to the proper legal test under
s. 150.1(4). In a prosecution involving s. 150.1(4)
the Crown is required to prove the accused failed to
take “all reasonable steps to ascertain the age of the
complainant.” The word “all” is significant. Here,
the evidence failed to establish the accused took “all
reasonable steps to ascertain the age of the
complainant.” As Justice Lane noted, the accused
took no steps:
The requirement the accused take all reasonable
steps to ascertain the age of the complainant
was added to the Criminal Code to test “the
foundation of an honest belief”.
The requirement the accused take all reasonable
steps is “more than a casual requirement. There
must be an earnest inquiry or some other
compelling factor that obviates the need for an
inquiry”
In this case, the evidence cannot lead to the
conclusion the [accused] took all reasonable
steps to ascertain the age of the complainant or
that, in the circumstances, no steps were
necessary. The [Crown] established the
[accused] failed to take any steps to determine
the age of the complainant and, on the
evidence, it was palpable and overriding error
for the trial judge to conclude that, in these
circumstances, no steps were necessary. The
trial judge misdirected himself as to the
interpretation and application of s. 150.1(4).
[references omitted, paras. 20-22]

BY THE BOOK:
Mistake of Age
s. 150.1(4) Criminal Code
It is not a defence to a charge under
section 151 [sexual interference] or
152 [invitation to sexual touching],
subsection 160(3) [bestiality in the
presence of a child] or 173(2)
[exposure], or section 271 [sexual
assault], 272 [sexual assault with a weapon/cause
bodily harm] or 273 [aggravated sexual assault]
that the accused believed that the complainant
was 16 years of age or more at the time the
offence is alleged to have been committed unless
the accused took all reasonable steps to ascertain
the age of the complainant.

SUBPOENA REQUIRES WITNESS
TO ATTEND & TO GIVE
EVIDENCE
R. v. Abdullah & Amyotte, 2010 MBCA 79

The Crown’s appeal was allowed, the accused’s
acquittal was set aside, a conviction was entered,
and the matter was sent back to the trial judge for
sentencing.
Complete case available at www.canlii.org

Note-able Quote
“Do not follow where the path may lead. Go instead
where there is no path and leave a trail.” - Ralph
Waldo Emerson

In 2005 an innocent bystander was
shot and killed in a gang-related
shooting. Abdullah and Amyotte each
gave a videotaped statement to the
police identifying the shooters. The
shooters were charged with murder and other
offences. As anticipated material witnesses,
Abdullah and Amyotte were each served with a
subpoena to attend to give evidence. But they
refused to be sworn or affirmed and did not testify.
The presiding judge at the murder trial explained to
each of the accused that they could be liable for
contempt by refusing to be sworn or affirmed, but he
did not cite them for contempt of court, nor were
they charged with contempt for refusing to testify.
However, each was subsequently charged with
attempting to obstruct justice under s. 139(2) of the
Criminal Code by refusing to testify and disobeying

PAGE 23

Volume 11 Issue 2 - March/April 2011
a court order (“a subpoena that directed him to
attend and give evidence”) under 127(1).
At trial in Manitoba Provincial Court they were
acquitted. Although satisfied the Crown had proven
the actus reus for the offence of obstructing justice,
the judge had a reasonable doubt as to whether they
had the necessary intention to attempt to obstruct
justice. They both stated that their earlier videotaped
statements were false and they did not want to
perpetuate the lies by testifying at the murder trial.
On the charge of disobeying a court order the judge
was of the view that a subpoena issued under the
Criminal Code only required the recipient to attend
court; it did not require they testify. “Although a
subpoena is on its face a lawful order of the court, I
am not satisfied that it actually directs a witness to
testify,” she said. “An examination of the wording of
the sections appears to suggest that a subpoena is
merely a court order that procures attendance for the
purpose of testifying. It does not appear to
specifically order a person to testify.” Further, the
trial judge also was of the view that the Crown had
not proven beyond a reasonable doubt that the
accuseds had refused to testify. “The wording of the
particular offence … required … proof of an actual
refusal to testify as opposed to a simple lack of
testimony,” she said. The Crown appealed the trial
judge’s ruling to the Manitoba Court of Appeal.

DUTY TO TESTIFY
“A person has a general duty to testify when
called upon to do so, except in clearly defined
cases (as for example, spousal noncompellability). ... This duty is owed not just to
the courts, but to society as a whole, and is
essential to the proper administration of
justice.” [at para. 34] “The duty to testify has no
discretion attached to it.” [at para. 58] - R. v. Abdullah
& Amyotte, 2010 MBCA 79.

Attempt to Obstruct Justice
If a person does not fulfill their duty to testify they
can be cited or charged for contempt of court.
Although a finding of contempt followed by
sentencing is the usual outcome, it is not the only
consequence. “A person who is obliged to testify,
but refuses to be sworn or affirmed to give evidence,
can also be charged with obstruction of justice
pursuant to s. 139(2) of the Code,” said Justice
Hamilton, authoring the unanimous appeal
judgment. “In such event, the Crown must prove
beyond a reasonable doubt the elements of the
offence (the actus reus and the mens rea).” The Court
of Appeal concluded that the trial judge erred when
she found the Crown had not proven beyond a
reasonable doubt that the accuseds had the
necessary intent to attempt to obstruct justice by
refusing to be sworn or affirmed to testify:

PAGE 24

Being a specific intent offence, the accused must
not only intend to act in a way that tends to
obstruct, pervert or defeat the course of justice,
but he must specifically intend to obstruct,
pervert or defeat the course of justice by his acts.
What this means is that the acts in question must
have been done with the purpose of perverting
or obstructing the course of justice or with
knowledge or awareness that the acts in
question would or might lead to a perversion or
obstruction of justice.
Intention is not to be confused with
motive. Motive is the reason why someone does
something. It is possible to have a specific
intention for doing an act that is different from
the motive for that same act. If a person robs a
bank to pay for medical treatment, the intention
would be to commit the offence of robbery,
while the payment of the medical expenses
would be the motive. Motive is not an element
that the Crown must prove, so it is important to
differentiate between the required intention,
which forms a part of the offence that the Crown
must prove, and motive, which does not. In this
case, the accused stated that they did not want
to testify because of safety concerns for their
families and because they did not want to be
branded as rats within their gang. These are both
clearly motives. The accused also offered, as a
reason for not testifying, that they did not want
to lie and that the videotaped statements were
false. ...
Intention should also not be confused with
desiring or wanting a particular outcome. A
person can intend a particular outcome, in the
sense that he or she knows or foresees it, even if
he or she does not want or desire that it occur.
[references omitted, paras. 39-41]

Volume 11 Issue 2 - March/April 2011
Here, the refusal to testify due of the untruthfulness
of their videotaped statements made to police might
have explained the reason or motive for not
testifying, but it could not have raised a reasonable
doubt about the intent to attempt to obstruct justice.
Justice Hamilton continued:
Abdullah and Amyotte were not charged with
wilfully attempting to obstruct justice for refusing
to testify about a truthful videotaped
statement. They were charged with wilfully
attempting to obstruct justice for refusing to
testify. Simply put, the truthfulness or falsity of
the videotaped statements was irrelevant to these
charges. Even if the videotaped statements had
been put into evidence before the trial judge and
she was able to determine that the statements
were indeed false, Abdullah and Amyotte would
not have been relieved from fulfilling their duty
as witnesses and giving truthful testimony.
The failure or refusal of an accused to testify
because he does not want to lie on the stand by
“standing by” an earlier false statement given to
the police is simply not capable, in law, of
raising a reasonable doubt about his or her
specific intent to wilfully obstruct the course of
justice. A witness in a trial is put on the stand to
tell the truth, not to perpetuate a lie or to “stand
by” earlier lies. A person cannot refuse to be
sworn or affirmed to give testimony for the
purpose of not perpetuating a lie without also
intending to obstruct the course of justice. In
doing so, the clear inference is that the person
intended or knew that his acts would tend to
obstruct the course of justice, whatever the
stated motive or desired outcome. [paras. 56-57]

And further:
Even if Abdullah and Amyotte honestly believed
that they were required to testify at the [murder]
trial in a manner consistent with their earlier
videotaped statements, and therefore did not
testify in order to prevent what they contend
would have been an injustice, such a
misunderstanding would be characterized as a
mistake of law (and not a mistake of fact) and
would provide no defence. Ignorance of the law
is no excuse for the commission of a crime. See
s. 19 of the Code. More specifically, ignorance
of the law will not afford a defence to a charge

BY THE BOOK:
Obstructing Justice
s. 139(2) Criminal Code
Every one who wilfully attempts in
any manner … to obstruct, pervert
or defeat the course of justice is
guilty of an indictable offence and
liable to imprisonment for a term
not exceeding ten years.

Disobeying a Court Order
s. 127(1) Criminal Code
Every one who, without lawful excuse, disobeys
a lawful order made by a court of justice … is,
unless a punishment or other mode of
proceeding is expressly provided by law, guilty
of (a) an indictable offence and liable to
imprisonment for a term not exceeding two
years; …
of wilfully attempting to obstruct the course of
justice. [reference omitted, para. 59]

The Court of Appeal set aside the acquittals and
entered convictions for attempting to obstruct
justice.

Disobeying a Court Order
Subpoenas were served on both Abdullah and
Amyotte pursuant to the Criminal Code. The
subpoenas commanded them to appear “to give
evidence”. The Court of Appeal found the trial judge
erred in holding that a subpoena only compels a
witness to attend court, but does not compel the
witness to testify. A subpoena has a dual purpose. It
requires the witness “to attend” and “to give
evidence.”
As for the trial judge distinguishing between not
testifying and refusing to testify, the Court of Appeal
also concluded that she erred in this respect. “Given

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Volume 11 Issue 2 - March/April 2011
that a subpoena requires a witness to both attend
and testify and that a subpoena is an order of the
court, a person who has been subpoenaed and who
declines to take an oath or affirmation and declines
to testify does so in disobedience to a court order,”
said Justice Hamilton. She continued:

“Other Mode of Proceeding”
The Manitoba Court of Appeal also ruled that the
charge of attempting to obstruct justice did not fall
within the proviso under s. 127(1) of the Criminal
Code as an “other mode of proceeding … expressly
provided by law.” Therefore, a charge under s. 127(1)
was available and a conviction could be entered.

Thus, by refusing to take an oath or affirmation,
Abdullah and Amyotte did not testify or “give
e v i d e n c e ” a n d t h e r e by d i s o b e ye d t h e
subpoena. The actus reus of the offence was
complete. No specific “refusal” to testify is
required at law to found the essential elements
of the offence of disobeying a court order, which
is a general intent offence. The court order here
was the subpoena that directed the accused to
“attend to give evidence.” All the Crown was
required to prove with respect to each accused
was that he knew that there was a court order
requiring him to give evidence and that he
voluntarily did not give evidence. The evidence,
accepted by the trial judge, was that Abdullah
and Amyotte had been served with subpoenas
which required them to attend to give evidence.
Both attended, but declined to be sworn or
affirmed, thereby declining to give
testimony. The offence was complete here as
soon as they declined to be sworn or affirmed to
testify. [para. 82]

While the charge of attempting to obstruct justice
can be another mode of proceeding to address
the same conduct as the charge of disobeying a
court order, it is not an “other” Code offence that
“expressly provides” another punishment or
proceeding for “disobeying a court order.”
Rather, it expressly provides a punishment or
proceeding for attempting to obstruct justice, an
offence that contemplates many different types of
conduct. Thus, ... s. 139(2) does not fall within the
meaning of the proviso in s. 127(1) and the
Crown was entitled to prosecute the accused
under both ss. 139(2) and 127(1). [para. 97]

The accuseds’ acquittals for disobeying a court order
were also set aside and verdicts of guilty were
imposed. However, both the obstruct justice offence
and the disobey court order offence stemmed from
the same conduct and were comprised of
substantially the same elements. As a result, the
disobey a court order convictions were stayed
pursuant to the Kienapple principle.
Complete case available at www.canlii.org

Side Bar

However, the Court noted that had Abdullah or
Amyotte failed to attend court, rather than refused
to testify, as required by the subpoena, the proviso
would seem to apply. Section 708 of the Criminal
Code states that “a person who, being required by
law to attend or remain in attendance for the
purpose of giving evidence, fails, without lawful
excuse, to attend or remain in attendance
accordingly is guilty of contempt of court.” A person
can be fined up to $100 and/or be imprisoned for
up to 90 days. R. v. Abdullah & Amyotte, 2010 MBCA 79

LEARNING LEGAL LINGO: Kienapple Principle
“[F]or the Kienapple rule to apply: there must be both a factual and legal nexus between the
several charges. Multiple convictions are only precluded under the Kienapple principle if they
arise from the same “cause”, “matter”, or “delict”, and if there is sufficient proximity between the
offences charged. This requirement of sufficient proximity between offences will only be
satisfied if there is no additional and distinguishing element contained in the offence for which a
conviction is sought to be precluded by the Kienapple principle.” — R. v. Prince, [1986] 2 S.C.R. 480
PAGE 26

Volume 11 Issue 2 - March/April 2011

ELIMINATION RATE & PLATEAU:
ASSERTIONS OF SCIENTIFIC
KNOWLEDGE
R. v. Paszczenko; R. v. Lima, 2010 ONCA 615
Paszczenko was arrested after police
attended a motor vehicle accident
involving a rear-end collision. He
displayed the usual symptoms of
drinking – a strong smell of alcohol;
unsteadiness on his feet; bloodshot and glassy eyes;
and slurred speech. He provided two breath samples
registering 125mg% and 122mg%. Both readings
were truncated (read down) to 120mg%. Since both
samples were not taken within two hours of the
offence the Crown was not entitled to rely upon the
presumption set out in s. 258(1)(c) of the Criminal
Code. Section 258(1)(c) provides that the results of
breath tests are proof of the concentration of alcohol
in an accused’s blood at the time of the
offence. Instead, the Crown tendered an expert’s
toxicology report that projected the accused’s blood
alcohol content (BAC) to have been between 130mg
% and 180mg% at the relevant time.
At trial in the Ontario Court of Justice the accused’s
argument that the “rate of elimination” and the
“plateau” assumptions had not been proven was
rejected. The judge applied the best evidence rule to
the expert’s report and accepted the calculations set
out in it. The accused was convicted of over 80mg%.
On appeal by the accused to the Ontario Superior
Court of Justice his conviction was set aside. The
appeal judge concluded that there was no
evidentiary basis upon which the trial judge could
accept and rely upon the plateau assumption.
Lima failed an approved screening device test. He
also exhibited common indicia of impairment. There
was an odour of alcohol on his breath, his eyes were
glassy, and his speech slightly slurred. He was taken
to a police station where he provided two samples of
his breath registering readings of 118mg% and
103mg%, truncated to 110mg% and 100mg%. The
tests were administered more than two hours after
the occurrence because a Portuguese language duty
counsel lawyer was needed. The Crown could not
rely on the s. 258(1)(c) presumption so an expert’s

toxicology report was filed which projected a BAC of
between 110mg% and 160mg% at the time of the
incident.
At trial in the Ontario Court of Justice the judge
concluded that the Crown had proven there was no
bolus or post-incident drinking and that the
elimination rate and plateau assumptions were so
widely used and acknowledged in the toxicologist’s
area of expertise that there was no need to lead
evidence to support them. The accused was
convicted of over 80mg%. On appeal by the
accused to the Ontario Superior Court his conviction
was upheld.

Issue
Both of these cases were appealed to the Ontario
Court of Appeal. In each case the toxicology experts
relied on four assumptions in their reports when
calculating the BAC’s of each accused. These
assumptions were; (1) no bolus drinking, (2) no postincident drinking, (3) elimination rate, and (4)
plateau. In Lima the accused attacked the proof
required to establish the “no bolus drinking”
assumption (proof of the “plateau” and the
“elimination rate” assumptions were also alive),
while the Crown appeal in Paszczenko centred on
proof of the “plateau” and the “elimination rate”
assumptions.
The Crown bears the onus to prove the facts
underlying an expert’s report, including the
assumptions upon which the expert relies. But how
is Crown required to prove these assumptions? Put
another way, in what manner is the Crown required
to prove the facts underlying the four assumptions
used in expert toxicology reports for over 80mg%
cases when the Crown is precluded from relying
upon the presumption contained in s. 258(1)(c)? That
was the question the Ontario Court of Appeal was
tasked with deciding. The results of these cases are
summarized in the following evidential grid (at p.
28). As a result, the Crown’s appeal in Paszczenko
was allowed, the order for a new trial was set aside,
and his conviction was restored. With Lima, his
appeal was dismissed and his conviction upheld.
Complete case available at www.ontariocourts.on.ca

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Volume 11 Issue 2 - March/April 2011

OVER 80 mg% STANDARD ASSUMPTIONS EVIDENTIARY GRID
Assumption
No bolus drinking

Description

Proof

Bolus drinking generally describes the
consumption of large quantities of alcohol
immediately or shortly before driving. In such
cases, a driverʼs BAC may have been below
80mg% at the time of driving/care or control
but still register an over 80mg% in a readback calculation done later because the BAC
was still rising at the time of the incident.
Thus, no bolus drinking means there was no
rapid consumption of large quantities of
alcoholic beverages shortly prior to the
incident.

Burden on Crown to prove by case specific
evidence (foundational facts).
Crown must establish that an accused has
not engaged in bolus drinking. A trier of fact
(judge or jury) may rely on a common
sense inference that people do not
normally ingest large amounts of alcohol
just prior to, or while, driving. Bolus drinking
is a relatively rare phenomenon and no
bolus drinking is largely a matter of
common knowledge and common sense
about how people behave.
To overcome the common sense inference,
there is a practical evidentiary burden on
an accused. This does not require an
accused persuade or convince the judge or
jury there was bolus drinking, but merely to
point to something in the evidence that puts
the possibility they engaged in bolus
drinking. So, in cases where there is no
evidence of bolus drinking the common
sense inference there was no bolus
drinking may be drawn.

No post-incident drinking

No alcohol consumption took place after the
incident but prior to the breathalyzer tests.

Burden on Crown to prove by case specific
evidence (foundational facts).

Elimination rate

The elimination of alcohol from the body
generally continues at a relatively constant
rate which ranges from approximately 10mg
% to approximately 20mg% per hour.

An assertion of scientific knowledge that
need not be proven by case specific
evidence led at trial. Rather, it is a matter of
scientific knowledge on which the expert is
entitled to rely without further proof by the
Crown. The elimination rate is information
acted upon by an expert as a result of their
expertise.

Plateau

After the BAC rises rapidly within
approximately 30 minutes of the last drink a
personʼs BAC will remain at a relatively
constant plateau for approximately two hours,
before declining. The BAC plateau is a period
of time in which there is no significant change
in the BAC due to the rate of absorption of
alcohol into the body being approximately
equal to the rate of elimination of alcohol from
the body. The BAC is neither rising nor falling
and the assumed elimination rate is not
factored into the read-back calculation which
favours an accused.

An assertion of scientific knowledge that
need not be proven by case specific
evidence led at trial. Rather, it is a matter of
scientific knowledge on which the expert is
entitled to rely without further proof by the
Crown. Plateau is information acted upon
by an expert as a result of their expertise.

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Volume 11 Issue 2 - March/April 2011

OBSERVE & REPORT
What assisted the common sense
inference against bolus drinking being
drawn in the Lima case? It hinged much on
the evidence of police. Here are some of
the factors the Ontario Court of Appeal
considered:
• he was stopped while driving his
vehicle in an unusual fashion;
• he exhibited signs of driving while
intoxicated at the time (smell of
alcohol on his breath; red, bloodshot
and glassy eyes; flushed face);
• there was no alcohol in his car, and he
had no access to alcohol from the
time of his arrest to the time of the
breathalyzer tests;
• there was no change in the indicia of
alcohol consumption during the period
between his arrest and the
administration of the breathalyzer
tests; and
• there was no evidence he had just
come from an establishment serving
alcoholic beverages.

BREACHING INFORMER
PRIVILEGE RESULTS IN STAY
R. v. X.Y., 2011 ONCA 259
The accused was arrested and, while
being interviewed, asked that the
recording equipment be turned off.
The master recording system was
turned off but a secondary system
continued to operate and recorded
the entire interview. Assured that the conversation
was no longer being recorded, the accused
disclosed that he was an an informer and identified
his police handler. At the end of the interview the
officer turned over the recording disk of the
interview to an administrative assistant for
transcription. When the officer received the

transcription of the interview it was obvious that the
discussion about the informer activities had been
recorded and transcribed. However, he had done
nothing in the interim to confirm or refute the
accused’s claim to be a police informer and simply
included the full transcript in the materials provided
to the prosecutor for disclosure to defence counsel.
The officer never spoke to a superior officer about
the “off record” discussion, never sought legal
advice from the Crown, nor took any steps to ensure
the confidentiality of the informer discussion. The
full transcript was turned over to the prosecutor. The
prosecutor did not ask the police about the
accused’s informer discussion or whether any steps
had been taken to confirm the claim. The transcript,
in both electronic and paper form, was turned over
to various defence counsel as part of disclosure.
More than a year later, when the prosecutor told
defence counsel that the Crown intended to voir dire
the accused’s interview, the breach of informer
privilege was pointed out. The prosecutor quickly
tried to recover all documents that contained the
text of the interview and notified the accused that
the interview would not be tendered for admission
as evidence at trial. The accused sought entry into
t h e w i t n e s s p r o t e c t i o n p r o g r a m b u t wa s
rejected. While in custody he was assaulted. The
attacker told him he had seen some disclosure and
called him a “rat”. Threats of future harm were also
made.
The accused made a pre-trial motion in the Ontario
Superior Court of Justice seeking a stay of
proceedings on the basis of abuse of process for the
official misconduct in breaching informer privilege.
But this was rejected. The trial judge found the
police and prosecutorial conduct in disclosing the
full interview was inadvertent and unintentional.
Continuing the prosecution would not result in an
unfair trial, nor have any material effect on the case
because of the significant and diligent efforts the
prosecutor made to remedy the breach and attempt
to reconstitute the privilege. In the judge’s view,
there was nothing that would suggest a repetition of
the investigative and prosecutorial conduct in the
future and the societal interest in a trial on the merits
of the charges tipped the scales against entering a
stay of proceedings.

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Volume 11 Issue 2 - March/April 2011
On appeal to the Ontario Court of Appeal, a stay
was entered for several reasons:
• The police and prosecutorial conduct in
breaching informer privilege was grossly
negligent. Both the police and prosecution are
under a duty to protect informer privilege and
defaulted on their obligations by disclosing the
accused’s status and some of the information
provided. Even if the recording was done
inadvertently, it was clear the transcript included
significantly more than the brief preliminary
questioning about the offence charged. “The
officer who received the transcript was at the
interview, thus knew the nature of the
discussion that took place,” said the Court of
Appeal. “The officer did nothing to ensure that
informer privilege was not breached. The officer
took no steps to separate the informer activities
discussion from the rest of the interview, for
example, to place it in a sealed packet, to solicit
the advice of senior officers, to seek legal advice
from the prosecutor or even to confirm the
informer status of the [accused]. When the
prosecutor received the interview transcript
from the police, the earlier breach of privilege
was exacerbated. The prosecutor took no steps
to confirm the [accused’s] status as an informer,
or edit the interview before disclosure to several
defence counsel. In the result, disclosure
included material that not only revealed the
[accused’s] activities as an informer, but
included the substance of what the [accused]
disclosed during the interview.”
• Informer privilege is a class privilege and
protects not only an individual informer from
possible retribution, but also lets potential
informers know that their identity will also be
protected. Although the trial judge had evidence
of retribution, actual and promised, he “did not
consider the overall impact of the disclosure
such as occurred here on current and
prospective informers. Official conduct such as
occurred here could have a significant impact
on future disclosures by current and prospective
informers to the detriment of the administration
of justice overall.”

• Once informer privilege has been lost it cannot
be restored to its original vitality. In this case,
the trial judge attached too much significance to
the prosecutor’s attempts to remedy the breach
and reinvigorate the privilege.
Because of this stay, the accused was ordered
released from custody.
Complete case available at www.ontariocourts.on.ca

MORE ON INFORMER PRIVILEGE
Here are some more points the Court of Appeal
made about Informer Privilege in R. v. X.Y.:
•

Informer privilege provides an all but absolute
bar against revealing any information that might
tend to identify a confidential informer.

•

Courts have no discretion once the existence
of the privilege is established.

•

The duty imposed to keep an informer’s
identity confidential applies to the police and to
the prosecutor.

•

A judge is under a duty to protect the
informer’s identity.

•

Informer privilege accords no place for the
judicial balancing of benefits enuring from the
privilege against any countervailing
considerations.

•

Since the privilege is jointly “owned” by the
Crown and the informer, the Crown has no
right to disclose the informer’s identity without
the informer’s consent.

•

The principle does not permit the Crown to
reveal any information that might tend to
identify an informer as part of the Crown’s
disclosure obligations.

•

Even the right to make full answer and
defence, of which the right to disclosure is an
essential feature, does not alone trigger an
exception to informer privilege.

•

Informer privilege is not a rule of evidence,
confined to the courtroom. Rather, it is an
amalgam of an evidentiary rule and a principle
of immunity and secrecy at work not only in,
but also outside judicial proceedings.

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Volume 11 Issue 2 - March/April 2011

SHORT CoUrT CORNER:
Small on Facts, Big on Principle
Here is a quick taste of some recent appellate
court decisions. If you are interested in what you
read the entire judgments are available online at
www.canlii.org

BABY-SITTER MAY CHALLENGE
WARRANT
A trial judge did not err when he
gave standing to a baby-sitter to
attack a search warrant. Whether a
person has a reasonable expectation
of privacy for s. 8 of the Charter is context driven.
The accused was in the premises at the time of the
search and the trial judge found that he had
possession and control and the ability to admit or
exclude others from the premises in the context of
his baby-sitting duties. Ontario Court of Appeal: R.
v. Pham, 2011 ONCA 271.

ILLEGAL STRIKE NOT STATE
MISCONDUCT
The accused was facing six charges
when he was remanded for a bail
hearing. Unfortunately, the return
date for his bail hearing coincided
with an illegal strike at the detention
centre and his bail hearing did not proceed. A few
days later his surety did not appear and he was not
released on his own recognizance. Later, while the
accused was still in custody, the trial judge stayed
the charges after finding the four day delay breached
the state’s obligation to bring the accused before the
court in a timely manner and deprived him of his
right to retain and properly communicate with
counsel. Although the trial would not be unfair, the
judge found the accused’s ability to make full
answer and defence was impacted and the conduct
of the correctional officers in mounting an illegal
strike was an affront to the administration of justice
such as to shock the conscience of the community.
On appeal, the Ontario Court of Appeal disagreed.
The stay of proceedings was set aside because there

was no evidence that state misconduct caused or
contributed to the illegal strike by detention centre
staff. “The illegal strike, standing alone, is not state
misconduct,” said the Court. Plus, the delay was
relatively brief, there was no evidence the accused
was actually prejudiced, and the state did not
conduct itself in a manner that rendered the
proceeding unfair or otherwise damage the integrity
of the judicial system. The accused was given seven
days to surrender or a warrant would be issued.
Ontario Court of Appeal: R. v. Ward, 2011 ONCA
267.
“The illegal strike, standing alone,
is not state misconduct.”

BREATH TESTS ADMISSIBLE
EVEN IF RIGHTS BREACHED
Even if the accused’s s. 10(b) Charter
rights were violated, the
breathalyzer tests she provided of
130mg% and 120mg% would
nonetheless be admissible under s.
24(2). An Ontario Court of Justice held the accused’s
right to counsel was not breached and convicted
her. On appeal, the Ontario Superior Court of Justice
jumped past the s. 10 (b) determination and went
directly to a s. 24(2) enquiry. He noted that a breach
of s. 10(b) does not necessary lead to the virtual
automatic exclusion of breath tests. There was no
suggestion the arresting officer acted in bad faith. He
gave the accused the standard advice that had been
developed to conform with Supreme Court of
Canada judgments. He was not acting in an abusive
or high handed manner. And he never re-advised the
accused of her rights at the police station because
she made it clear she would not contact counsel due
to the late hour. Furthermore, the havoc caused by
drinking and driving remains a matter of wide public
concern. The tests were reliable, they were not
borderline, and were essential to the Crown’s case.
The appeal judge found the readings admissible. A
further appeal was dismissed by the Ontario Court of
Appeal. It agreed with the appeal judge. Ontario
Court of Appeal: R. v. Jackson, 2011 ONCA 279.

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Volume 11 Issue 2 - March/April 2011

FLIGHT FROM POLICE MAY BE
PROBATIVE OF GUILT
After receiving a 911 call reporting a
suspicious person circling four cars
and scraping sounds being heard,
police saw the accused briskly
walking away from a vehicle. When
he looked over his shoulder he broke into a run. An
officer yelled for him to stop but he continued to run
until a police dog caught him. In considering the
totality of the evidence and finding the accused
guilty of mischief, the trial judge included the
evidence of this flight from police. “Taking flight
from a uniformed police officer with a dog,
especially when ordered to stop, was consistent with
a consciousness that he had been observed
committing an offence,” said the trial judge. The
accused appealed. He submitted before the British
Columbia Court of Appeal, among other things, that
the reason he ran was because he was scoping
vehicles to find something of value to steal. Thus, his
unusual post-offence conduct was equally consistent
with prowling vehicles and should therefore not
have been considered in finding him guilty of the
mischief. Justice Kirkpatrick, delivering the opinion
for the Court of Appeal, disagreed. The accused did
not testify at trial nor admit to any offence, and the
trial judge did not place undue emphasis on the
accused’s flight. Properly considered, it was among
several pieces of circumstantial and direct evidence
probative of the accused’s culpability. British
Columbia Court of Appeal: R. v. Kim, 2011 BCCA
127.
“Taking flight from a uniformed
police officer with a dog, especially
when ordered to stop, was consistent
with a consciousness that he had been
observed committing an offence.”

911 CALL ADMISSIBLE AS
EVIDENCE
The accused and his live-in girlfriend
engaged in a physical altercation at
their residence following a night of
drinking at a bar. The complainant

was badly injured. She called 911 shortly after
midnight. She was moaning and crying. When asked
who hurt her, she responded “my boyfriend”. She
gave the operator the accused’s name, spelled it, and
gave details of his appearance. She said her head
was split open, that “there is blood everywhere,” and
that “I got beat bad”. The complainant was
transported to hospital where she told the police that
she had been hit on the head with a hammer. At trial
in the Alberta Court of Queen’s Bench the
complainant had no independent memory of the
911 call, nor could she recall her conversation with
the police at the hospital. The emergency room
physician described the complainant’s injuries. The
accused said he acted in self defence. After the
complainant had bitten his penis he pushed her and
she struck her head on the wall or door frame. He
denied striking her on the head with a hammer. The
judge admitted the 911 call and the complainant’s
statement to police. The accused was convicted of
assault with a weapon and aggravated assault but
appealed. Although his appeal was allowed on other
grounds, the Alberta Court of Appeal found the 911
call and the statements the complainant made to
police admissible. The trial judge took into account
the complainant’s level of intoxication and found
that the 911 call revealed that she was not so
incapacitated that her replies on the tape were
unreliable. The 911 call was placed shortly after the
assault and was thus sufficiently contemporaneous
to be a spontaneous outburst which could not have
been concocted. As a result, it formed part of the res
gestae and was properly admitted as such.
Furthermore, the statements were properly admitted
through the principled approach to hearsay
evidence. The 911 call met the test of necessity
because the complainant had little memory of the
assault. It also met the test of threshold reliability
given the confirming evidence of the witnesses in
the bar, the fact that the call had been recorded, and
that the complainant’s statements were confirmed to
some extent by the photographic and medical
evidence. The statements were recorded in a
“reasonably diligent manner”, there was no
evidence of bias, the questions were not leading nor
suggestive, and the statements were consistent in
material respects to the 911 call. Alberta Court of
Appeal: R. v. Villeda, 2011 ABCA 85.

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Volume 11 Issue 2 - March/April 2011

OFFICER’S OBSERVATION MORE
THAN FLEETING GLANCE
The accused was seen by an off-duty
police officer as a passenger in a car
passing something to a male near a
phone booth. This activity fit the
profile of a drug transaction. The
next day the accused was chased by the same
officer, now on-duty, for running a stop sign, but did
not pull over. Instead he fumbled around with
something in his car as he fled. When he was
stopped and searched the police found cash and a
cell phone. Ten to fifteen minutes later a ziplock bag
containing seven cocaine spitballs was found on the
road which the accused had just passed in his
vehicle. The next day the officer answered a call
placed to the accused’s telephone asking to
purchase a “spit ball”. The accused was convicted of
possessing cocaine for the purpose of trafficking and
failing to stop for police in the Yukon Supreme
Court. His appeal, however, was rejected. Justice
Ryan, for a unanimous Appeal Court, disagreed with
the submission that the officer’s identification of the
accused as a passenger the day before his arrest was
unreliable. “Because he thought he had witnessed a
drug deal, [the officer] made a point of observing
who was in the Toyota,” stated Justice Ryan. “He said
that he saw the same person the next day in the
Toyota, now as driver, and that that person was [the
accused]. This is not a case of a fleeting glance. [The
officer] made a point of observing who was in the
vehicles. In these circumstances the trial judge was
entitled to accept and rely on [the officer’s]
observations as part of the overall circumstances of
the case.” Furthermore, the significance of the drugs
being found on the roadway, after the accused was
arrested, was examined in context. Although such
evidence on its own might be open to question, “the
trial judge did not look at the individual items of
evidence in isolation one from the other, but
examined it as he is mandated to do, as a whole.
When examined as a whole, the bits of evidence
took on a larger meaning for the trial judge.” The
accused’s conviction was not unreasonable. Yukon
Court of Appeal: R. v. Guan, 2011 YKCA 3.

TOP ONTARIO COURT REFUSES
TO FUDGE SENTENCING
NUMBERS
The accused was convicted of
criminal negligence causing death
while street racing and failing to
stop at the scene of an accident.
Although both offences attract a
maximum punishment of life imprisonment the
accused was sentenced to 25 months in prison (30
months less 5 months for time spent in pre-trial
custody) on the criminal negligence count and 12
months consecutive for the failing to stop count, for
a total of 37 months. Because he received a
sentence of two years or more, under Canada’s
Immigration and Refugee Protection Act the accused
would not be entitled to appeal the deportation
order he was facing as a result of the sentence he
received on the criminal negligence causing death
conviction. So he asked the Ontario Court of Appeal
to realign his sentences so he would not be barred
from appealing a deportation order. He did not want
an overall global reduction in his total 37 month
sentence. He merely wanted the individual
sentences rejigged so no single sentence exceeded
two years. He requested that the criminal negligence
sentence be reduced to 23 months and the fail to
stop sentence be increased to 14 months (19 months
less 5 months for time spent in pre-trial custody) still an overall sentence of 37 months. However,
Justice Moldaver, speaking for the Court of Appeal,
would have nothing to do with it. “Courts ought not
to be imposing inadequate or artificial sentences at
all, let alone for the purpose of circumventing
Parliament’s will on matters of immigration,” he said.
“The 30-month penitentiary sentence imposed on
the [accused] for the offence of criminal negligence
causing death while street racing was not unfit;
indeed, if anything, I think it was lenient.” The
accused’s sentence appeal was dismissed. Ontario
Court of Appeal: R. v. Badhwar, 2011 ONCA 266.
“Courts ought not to be imposing
inadequate or artificial sentences at
all, let alone for the purpose of
circumventing Parliament’s will on
matters of immigration.”

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Volume 11 Issue 2 - March/April 2011

FLAG MAN IN STREET RACE TO
FACE NEW TRIAL
A trial judge failed to properly
consider or apply the Criminal Code
provisions under s. 21 when he
acquitted an accused for acting as
the “flag man” and signaling the start
of a three car street race which resulted in one of the
drivers losing control, colliding with a lamp post,
and dying as a result. The accused, a 16-year-old
youth, and the two surviving drivers were charged
with criminal negligence causing death while street
racing. The Ontario Court of Justice granted a
directed verdict of acquittal after finding that
dropping a jacket to start the race was not sufficient
to constitute the offence of criminal negligence
causing death. The Crown appealed to the Ontario
Court of Appeal. Establishing the actus reus for
aiding an offence of criminal negligence causing
death under s. 21(1)(b) requires the Crown to show
that an accused did something (or in some cases
omitted to do something) that assisted another in
committing the offence. As for the mens rea of
aiding criminal negligence it involves two elements;
the criminally negligent act (or omission) and the
consequence that the act or omission caused bodily
harm or death. As for the first mens rea element, “it
is necessary that an aider do something with intent
to assist conduct that is criminally negligent and
know sufficient details of the assisted conduct to
render that conduct criminally negligent. Thus, the
conduct that the aider knows he or she is assisting
must constitute a marked and substantial departure
from what is reasonable in the circumstances. ... [I]t
is not necessary that the aider know the law, nor that
he or she appreciate the legal consequences of the
conduct being assisted. Rather, the aider will have
aided the commission of the offence if he or she
intentionally assists conduct which constitutes the
offence and knows the principal intends to commit
it. In those circumstances, it may be said that an
aider did something “for the purpose of” assisting
the commission of the offence.” As for the second
mens rea element (the consequences), the mental
element is objective foresight of bodily harm. “It is
not necessary that an aider have subjective foresight
of the consequence of the criminally negligent act

he or she is assisting. Rather, it is sufficient to show
that a reasonable person, in all the circumstances,
would have appreciated a consequence – bodily
harm that is not trivial or transient – would result.” In
this case, dropping the jacket was an act that
assisted the car drivers to participate in a street race.
Street racers threaten the lives and safety of others in
the area. As for mens rea, there was evidence that
the accused intended to assist the street race and
knew the details of how it would take place. It was
open to a court to conclude that the street race was
a marked and substantial departure from what was
reasonable in the circumstances and it could have
been foreseeable that bodily harm could result. The
Crown’s appeal was allowed, the accused’s acquittal
was set aside, and a new trial was ordered. Ontario
Court of Appeal: R. v. M.R., 2011 ONCA 190.

MORE ON CRIMINAL NEGLIGENCE
There are several sections in the Criminal Code that
deal with criminal negligence. In s. 219(1) criminal
negligence is defined as doing anything or omitting
to do anything that someone has a duty to do and
showing wanton or reckless disregard for the lives or
safety of other persons. However, there is no offence
of criminal negligence simpliciter. A person will only
be liable for criminal negligence if death or bodily
harm results.

CRIMINAL NEGLIGENCE OFFENCES
section

description

punishment

220

criminal negligence cause death

max. life
4 yrs. min. if
firearm used

221

criminal negligence cause bodily harm

max. 10 yrs.

249.2

criminal negligence cause death

max. life

(street racing)
249.3

criminal negligence cause bodily harm

max. 14 yrs.

(street racing)
662(5)

dangerous driving as included offence

662(5)

flight cause bodily harm or death as included offence

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Volume 11 Issue 2 - March/April 2011

CRIMINAL NEGLIGENCE OFFENCE GRID
based on R. v. M.R., 2011 ONCA 190

PHYSICAL ELEMENT
Actus Reus

MENTAL ELEMENT
Mens Rea #1
(the criminally negligent act or omission)

Mens Rea #2
(the consequences of the act or omission:
bodily harm or death)

Principal Offender

Aider

• The conduct or ommission
represents a marked and
substantial departure from the
conduct of a reasonably
prudent person in the
circumstances.

• The accused did something
(or in some cases omitted to
do something) that assisted
another in committing the
offence.

• A modified objective test
• Must consider the facts existing
at the time in light of the
accusedʼs perception of those
facts and assess whether the
accusedʼs conduct, in view of
his or her perception of the
facts, constituted a marked and
substantial departure from what
would be reasonable in the
circumstances.
• A court should consider
whether the accused either
adverted to the risk involved
and disregarded it, or failed to
direct his or her mind to the risk
and the need to take care at all.
• In most cases, the mental
element can be inferred from
the accusedʼs conduct or
omission.

• An aider must do something
with intent to assist conduct
that is criminally negligent and
know sufficient details of the
assisted conduct to render
that conduct criminally
negligent.
• The conduct that the aider
knows he or she is assisting
must constitute a marked and
substantial departure from
what is reasonable in the
circumstances.
• It is NOT necessary that the
aider know the law, nor that he
or she appreciated the legal
consequences of the conduct
being assisted. Rather, the
aider will have aided the
commission of the offence if
he or she intentionally assists
conduct which constitutes the
offence and knows the
principal intends to commit it.

• Objective foreseeability that
bodily harm would ensue.
• It is NOT necessary that the
principal subjectively foresaw
death as a consequence of his
or her acts.

• Objective foresight of bodily
harm. It is sufficient to show
that a reasonable person, in
all the circumstances, would
have appreciated a
consequence – bodily harm
that is not trivial or transient –
would result.
• It is NOT necessary that an
aider have subjective foresight
of the consequence of the
criminally negligent act he or
she is assisting.

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Volume 11 Issue 2 - March/April 2011

CONSPIRACY TO COMMIT
MURDER IS A YCJA ‘VIOLENT
OFFENCE’

Side Bar

Fo l l o w i n g h i s c o n v i c t i o n f o r
conspiracy to commit murder the
accused, a youth, was sentenced to
12 months custody and 6 months
conditional supervision. He supplied
the Tylenol 3 used to drug the deceased so that it
would be easier to drown her, offered to assist with
an alibi, and encouraged another to commit the
murder. He then appealed his sentence, submitting
that conspiracy to commit murder was not a violent
offence under s. 39(1)(a) of the Youth Criminal Justice
Act and therefore the judge imposed an illegal
custodial sentence. The Ontario Court of Appeal
disagreed with the accused and concluded that
conspiracy to commit murder was a violent offence.
The meaning of “violent offence” in s. 39(1) is harmbased (which focuses on its effects), rather than
force-based (which focuses on the means employed
to produce the effects). The harm-based rationale
captures offences deserving of a custodial sentence
which might not be captured by the force-based
approach. A violent offence under is an offence in
the commission of which a young person causes,
attempts to cause or threatens to cause bodily harm.
“Conspiracy to commit murder, like attempted
murder, falls within what would ordinarily be
considered a violent offence,” said Justice
Rosenberg, writing the Court of Appeal’s decision. “I
recognize that not all cases of conspiracy to commit
murder may necessarily fall within the harm-based
approach...; but in my view the facts of this case fall
within the definition in that the [accused] caused or
at the very least attempted to cause bodily harm to
the deceased by supplying the Tylenol 3 and
encouraging [his friend] to commit the murder.”
However, on other grounds, the accused’s sentence
was reduced to 8 months in custody and 4 months
conditional supervision. Ontario Court of Appeal: R.
v. J.F., 2011 ONCA 220.
“Conspiracy to commit murder, like
attempted murder, falls within what
would ordinarily be considered a
violent offence.”

“Liability as a Party to Conspiracy”
The Ontario Court of Appeal also ruled that the being
a party to conspiracy under s. 21 of the Criminal Code
was an offence. In order for a person to be liable as a
s. 21(1) party to conspiracy the Crown must prove an
agreement by at least two other people to commit a
substantive offence. If the accused is a party to the
conspiracy by encouraging someone to join the
conspiracy or aiding or abetting the furtherance of its
object, the risk of the commission of the criminal
offence has sufficiently materialized to warrant
criminal sanction. If no agreement materializes, the
alleged party’s conduct would at most be an attempt
to conspire, which is not a crime.
Reach
The reach of party liability to conspiracy includes
abetting as well as aiding or abetting a person to
become a member of the conspiracy:
Aiding a conspiracy within the meaning of s. 21(b)
is no less harmful than abetting. Liability for aiding a
conspiracy would require proof that the accused did
or omitted to do something for the specific purpose
of aiding another to commit the offence of
conspiracy. That degree of mens rea imports a
sufficient level of fault to warrant criminal
liability. [I]t would not be enough that the accused’s
acts had the effect of aiding the conspiracy, the
accused must also have the requisite mens rea.
[para. 23]
Furthermore, liability as a party to conspiracy is not
limited to acts for the purpose of aiding or abetting
the actual formation of the agreement or aiding or
abetting someone to join the conspiracy. Party liability
includes aiding or abetting pursuit of the unlawful
object.
R. v. J.F., 2011 ONCA 220

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Volume 11 Issue 2 - March/April 2011

PRE-COURT PHYSICAL LINE-UP
‘POLLUTED’
The British Columbia Court of Appeal
has described the pre-court
identification of an accused used
during the investigation of several
sexual offences as “fraught with
problems”. After refusing to participate in a physical
line-up the accused was forced into one. A number
tag was put over his head and a police officer held
him in a headlock. Five police officers and two other
prisoners acted as foils in the line-up, which lasted
about three minutes. The accused moved his head
about and was very uncooperative. Eleven
complainants viewed him in the police lineup. A
photograph of the procedure was taken by police
(see below). Identification by the complainants
ranged from tentative to non-existent. He was
released from custody the following day and another
woman was later sexually assaulted. An array of
photographs was shown to her. There were head and
shoulder photographs of six other men included in
the array. The accused’s photograph, taken from the
waist up, showed him standing in front of a jail cell
with the arm of a uniformed police officer in the
foreground, unlike any of the foils. The backgrounds
of the foils were either blank or otherwise neutral. In
addition, each of the six foils were, by appearance,
at least ten years younger than the accused. He was
the only one with a full moustache or curly hair. The

foils all had hair length at least to the collar and over
the ears, while the accused’s hair was cut back and
higher on the forehead. The witness made a
conditional identification and the accused was again
arrested. Later, the accused was identified in court.
He was convicted on five counts of indecent assault,
two counts of attempted rape, and three counts of
rape. He was declared a dangerous offender and
sentenced to an indefinite period of incarceration.
Justice Low, in quashing the accused’s convictions,
found the photographic line-up fatally unfair. The
photograph of the accused stood out unfairly and
would have focussed the witness on him.
Furthermore, the physical line-up should not have
been conducted at all because it became a “farce”.
“There is no telling what influence the prominent
display of the [accused] by the police officers during
that event ultimately had on the six complainants
when they were asked in court if they could identify
the assailant,” said Justice Low. “Police investigators
should have prepared a proper and fair photographic
line-up instead of forcing the [accused] to participate
in the physical line-up. ... [T]he pre-trial
identification procedures were seriously flawed and
unfair. ... The process of identification was polluted
so as to render in-court identification of the
[accused] on each count highly questionable and
unreliable on the reasonable doubt standard.” After
serving nearly 27 years in prison the accused was
acquitted and released. British Columbia Court of
Appeal: R. v. Henry, 2010 BCCA 462.

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Volume 11 Issue 2 - March/April 2011

Online Social Networking for Criminal Investigations and Intelligence
May 30, 2011
This one day (8 hour) course is designed for criminal intelligence analysts, special agents, and
other investigators that encounter drug trafficking, diversion, and related crimes. Investigators
with any level of familiarity with the Internet and computers, from beginning to advanced, will
find this course beneficial.
The program gives investigators an up-to-date understanding of how social networking sites
work and how members act and interact. Investigators will learn what information is available
on various sites and how to integrate that information into criminal investigations and criminal
intelligence analysis. Too often, investigators and analysts overlook or underutilize this
valuable resource. Social networking sites are virtual communities. As in any large
community, criminal organizations, fraud, violet crime, and victimization exist. Investigators
need to understand these communities along with the tools, tricks, and techniques to prevent,
track, and solve crimes.
Date:

Monday, May 30, 2011

Time:

0800-1630 hrs

Where:

JIBC New Westminster

Presenter:

Charles Cohen

Cost:

$100 plus HST (includes networking lunch)

Register:

Registration can be made directly through the JIBC – Registration
Department at: (604) 528-5590. Please quote registration number
POLADV711 Online Social Networking for Criminal Investigations/
Intelligence.

Students receive course material, including legal process contact information, preservation
letters, boilerplate compliance documents, and resource guides.
NOTICE: Course contains graphic content including profanity, and sexual and violent
images.

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Volume 11 Issue 2 - March/April 2011

JIBC ALUMNI COMING SOON!
Many of you will have fond – or at least vivid - memories of your formative training experiences
prior to becoming a police officer. For many of you those recollections are unforgettable, but
distant. We came to policing with diverse backgrounds, training and experience, but we bonded
through common experiences and challenges. Many of us have developed life-long friendships
and connections. In some cases as a result of assignment duties, family commitments and the
like, we have drifted apart. We sincerely look forward to your support in helping us to establish
an organization of a Justice Institute of British Columbia Police Alumni, not only to help people
to stay connected, but also to reconnect.
Through an alumni organization we can keep everyone informed about new developments in
policing, educational programs, and upcoming events. This will be an amazing opportunity to
build and rekindle relationships and expand knowledge through networking. Despite the name,
this is not limited to alumni of JIBC. There are many members who received training at the BC
Police College and other predecessor organizations to the JIBC and we are encouraging them all
to become members.
The objects of the JIBC Police Alumni are being defined but will include keeping members
informed about what is happening at the JIBC, such as new developments in policing and
educational programs, including the new graduate certificates in Criminal Investigation and
Intelligence.
We also hope the JIBC Police Alumni will be able to access and develop the legions of
outstanding untapped policing leaders and mentors who represent policing at its best. In this
regard, we hope to encourage many opportunities for our alumni, such as encouraging and
mentoring new police recruits, promoting educational excellence, and reaching out to our
communities to support policing education and to show policing in a positive light.
A further object will be to support education and training. We hope to encourage a variety of
opportunities for lifelong learning, such as a new motorcycle course and a Bachelor’s degree
program, to name a few. We believe that by working together in diverse ways we can foster a
spirit of loyalty and pride in our association and make a positive difference in the world.
Please contact - if you are interested.
Linda Stewart

John Pennant

Mike Trump

lstewart@jibc.ca

jpennant@jibc.ca

mtrump@jibc.ca

Stay posted for further information in upcoming newsletters.

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Volume 11 Issue 2 - March/April 2011

JIBC announces two new Graduate
Certificates in Tactical Criminal Analysis and
Intelligence Analysis

Specific entrance requirements
are needed for admission to
either certificate

As law enforcement agencies struggle with limited resources,
the need for improved crime and intelligence analysis has
increased. These new online graduate programs prepare both
current and aspiring law enforcement professionals to design
and apply strategies to solve modern problems that challenge
crime and intelligence analysts daily.
The curriculum focuses on developing the skills required to
collect and analyze crime data to forecast criminal profiles;
documenting suspicious relationships between people,
organizations and events; and using statistical techniques to
solve crime. Significant emphasis is also placed on the need to
effectively and clearly communicate findings and prepare
recommendations for decision-makers.

Contact Us
Email
jpsd@jibc.ca

Phone
604.528.5590 or
toll-free 1.877.528.5591
Fax
604.528.5754
Mail
Justice & Public Safety
Division
Justice Institute of British
Columbia
715 McBride Boulevard
New Westminster, BC
V3L 5T4 Canada

You will enjoy state-of-the-art learning resources; networking
opportunities with employers in both the public and private
sectors; and exposure to faculty with significant experience in
the field.
Courses Include:
•
Intelligence Theories and Applications
•
Intelligence Communications
•
Advanced Analytical Techniques
•
Tactical Criminal Intelligence
•
Competitive Intelligence
•
Analytical Methodologies for Tactical Criminal
Intelligence
•
Analyzing Financial Crimes

The Justice Institute of British Columbia (JIBC) is Canada’s leading public safety educator - a dynamic not-for-profit public
post-secondary institution recognized nationally and internationally for innovative education in the areas of justice and
public safety. The JIBC offers a range of applied and academic programs (certificates, diplomas, and degrees) that span the
spectrum of safety - from prevention to response and recovery.

www.jibc.ca
PAGE 39