POLICE ACADEMY

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

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

NO ENTITLEMENT TO HAVE
LAWYER PRESENT DURING
INVESTIGATION
R. v. Lisi, 2001 BCCA 514
The accused driver crossed an
intersection on a green light and
fatally hit a pedestrian. Although he
knew he had hit a person, the
accused drove approximately 7 minutes to his home
while he called his wife on his cell-phone and asked for
her advice. His wife called 911 and advised the police of
what occurred.
Upon arriving home the accused
consumed a substantial amount of alcohol. The police
arrived at the accused’s home and arrested him. The
accused was transported to the police station, provided
access to a telephone, and spoke with a legal aid lawyer
for 9 minutes. When requested to provide breath
samples the accused refused, stating he was doing so on
the advice of his counsel. Upon further requests to
provide a sample, the accused continued to refuse. When
questioned by the breathalyzer operator whether he
understood what he was doing by refusing, the accused
indicated he knew what he was doing and that he had
obtained legal advice but suggested he would like to sit
down with his lawyer and the police and “go over
everything”. The trial judge was satisfied the accused
was not asserting his right to counsel a second time:
He had contacted counsel and received advice. He was thus
given the opportunity to have meaningful contact with and
advice from counsel. At no time did he indicate he was
dissatisfied or displeased with the advice or indicate that he
required further clarification. … After his first meaningful
contact with counsel, at no time did he clearly indicate he
wished a further opportunity to speak with counsel.

On appeal to the BCCA, the accused (among other
grounds) argued his right to counsel had been violated
because he had asserted his right to counsel a second
time and should have been provided a further
opportunity to speak with counsel. In dismissing the
appeal, the BCCA agreed with Crown where it stated in
its factum:

Volume 1 Issue 10
October 2001

The [Crown] says that when the conversation is looked at
in the context of all the evidence it is clear that the
[accused] was not making a second request for counsel, but
rather was requesting that counsel come down to the
police station. The [accused] had already spoken with a
lawyer, he indicated that he understood the charge of
refusal and knew what he was doing, and what he wanted
was for everyone (himself, the lawyer and the police) to sit
down and go over everything. This was not a request to
speak to counsel again, but rather a request for the lawyer
to come to down to the police detachment and be present
during the investigation. Consequently, since the [accused]
was not entitled to have counsel present during the
questioning, [the breathalyzer operator] was not obliged to
cease questioning the [accused] in face of such a request.
(emphasis added)

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

SUICIDE: SAFETY AND
PREVENTION ARE TOP
PRIORITIES
Part 3 of 6
Mr. Richard Dolman
The following notes are from an Internet website
under development at the Justice Institute of BC to
assist police in handling a psychiatric crisis and to
promote wider understanding of mental illness. The
project was initiated by the BC Association of Chiefs
of Police Mental Health Committee, and supported by a
multi-agency group. Funding is from the Ministry of
Health Services and the Justice Institute. Comments
and suggestions to the author are welcome at:
almond@direct.ca
Suicide has many causes. Attempted suicide or threat
of suicide is a frequent component of police emergency
calls. The suicide impulse can be weak or strong. A
subject may seem calm and rational or appear to be
manipulative or there may be a relatively low-risk cry
for help – which accidentally goes too far. Suicide may
be partly a rational decision but is mainly compelled by
depression
or
by
psychosis
with
command
hallucinations. Depression, in turn, can be intensified by
long-term disabling effects of mental illness, by

substance abuse or stress, or by bottled-up anger,
resentment or trauma. Because of these variables,
suicidal impulses and actions are unpredictable and
must not be ignored. Everyone including the police need
to take suicide warnings seriously.
Legal action on suicide risk. Can police apprehend
under s.28 of the MHA for apparent attempts or
serious threats of suicide or serious self-harm? Yes.
Such behaviour is likely to be caused by a mental
disorder that requires treatment - which can only be
confirmed or negated by a physician. Also, such
behaviour needs s.28 intervention when it is likely to
endanger; and is not an appropriate reaction to the
environment (compared with seeking treatment or
other help).
Safety. Obviously this includes subject safety, i.e.
preventing the occurrence of a premature death by
separating the subject from a knife or other weapon or
potential weapon, or from an instrument of harm such
as pills or poison; and not leaving the person alone until
medical professionals take custody. For a bridge
jumper or person locked in a room, an ERT negotiator
can help. In high-risk situations, safety concerns can
also include safety of interveners (get help, plan for an
escape route); and third-party safety. Agitated
friends/relatives should step aside. Police can offer to
arrange for them to be helped by a social worker
and/or grief counselor1. A calm and trusted friend or
relative can provide collateral information, introduce
police to the suicidal person, and remain in attendance
if the situation is safe.
Safety of the suicidal person includes more than
protection from physical harm. It includes reduction of
anxiety and mental pain. In a crisis intervention, when
police approach, the suicidal person is probably
hypersensitive to anyone’s tone of voice and body
language, and needs to feel non-threatened as well as
getting offers of help. Sudden appearance of police –
especially in uniform – can be frightening. If possible,
have yourself introduced by a trusted relative or
friend of the subject. Use a friendly first name
approach. (See Part Four in next issue for detailed
suggestions on what to say.)
Prevention. An important challenge for police and
1

Victim services, trauma and grief counseling: During business hours,
the BC Ministry of Attorney General operates a province-wide referral
service at: 1-800 563-0808. A federal website operated by the
Canadian Directory of Victim Services lists victim services at many BC
locations, at: http://www.vaonline.org/prov_bc.html

Volume 1 Issue 10
October 2001

others in the front line is to help prevent relapse and
to reduce the immediate impulses of a suicidal mental
state. How? By making sure that intervention provides
a positive first step toward medical treatment.
Collateral information can be very important here
(from family, friends, a suicide note). It can help
police to understand the subject’s state of mind, to be
more sympathetic, and to talk about getting help.
Promise to speak to relatives/friends in attendance
about problems. Get a commitment from them to
address a specific and painful problem. Promise medical
attention.
Reduce the pain. Usually part of the person wants to
die; but another part wants to live: that part of the
person needs to hear kind and caring words. If a
subject is fairly rational, ask what are the most
troublesome problems. Do not belittle them. That’s not
the issue. It’s how badly the problems are hurting the
person, whose ability to compensate and cope is
temporarily impaired or lost. Do what you can by
providing emotional first aid to reduce that pain. Be
constructive about life in general. Do not raise false or
unrealistic hopes but convey your belief that problems
can be solved.
Suicide by police weapons. One of the most
challenging and dangerous situations for police can lead
to tragedy. The media call it "suicide by cop." It’s also
called “victim-precipitated homicide.” Disturbed or
distraught and suicidal individuals with some kind of
weapon induce law enforcement personnel to kill them.
They deliberately create a pressurized situation so
dangerous that police are forced to shoot in selfdefence. Marksmanship at the arm or leg of a moving,
threatening target is not a viable option. When there is
no alternative but shooting at close range, police are
trained to aim at the middle of the chest. In such
cases police need alternatives including less-lethal
weapons.
Alternative means of force. A subject is armed,
intoxicated, psychotic, suicidal, does not respond to
rational conversation, and is hidden from police view.
What to do? Pepper spray is seldom a good option in a
psychiatric crisis. It may be possible for police to gain
control by: backing off, giving the subject time and
space to calm down; using an ERT negotiator and
telephone; or if use of force is unavoidable, using a hitech Taser (stun gun) or Arwen gun (rubber or plastic
bullets) which can briefly disable the subject to permit
restraint.

2

Post-trauma Stress. A suicidal crisis does not usually
present a direct danger to interveners, but a
completed or nearly completed suicide is highly
stressful and traumatic to everyone involved. Family,
children, friends, as well as police may be traumatized.
All may need therapy, no matter how “tough” or
“indifferent” they appear. Stress and trauma overload
can lead to flashbacks, denial, survivor’s guilt, and more
serious consequences if left untreated. Post-traumatic
therapies include stress debriefing, and group
discussion of how survivors felt about the incident at
the time and how they feel about it now. Some people
heal their grief and trauma by undertaking a related
project, joining a support group and sharing with
others in similar circumstances.

DETENTION UNLAWFUL:
OFFICER LACKS ARTICULABLE
CAUSE
R. v. Leminski, 2001 BCPC 121
Police received a radio dispatch of a
robbery in progress at a large retail
mall. Police responded and the
description transmitted by the
dispatcher
was
a
40-year-old
Caucasian male, short brown hair,
wearing an orange jacket, and leaving the bank carrying
a black garbage bag containing the money taken from
the robbery. A police officer spotted the accused,
stopped him for investigation, and searched him and his
backpack which lead to weapons and drug charges. In
determining whether the police were justified in
conducting an “investigative stop”, the court
recognized the officer requires “a reasonable suspicion
of crime involving the suspect” (articulable cause); not
a “credibility based probability of crime” (reasonable
grounds). The officer agreed “the only unique feature
attributable to [the accused], who was Caucasian male
with short hair, [was] that he was wearing an orange
jacket”. The Court noted that the accused was (and
looked) 20 years old (not the 40 years as reported),
was traveling in the opposite direction the suspect was
reported to be traveling, and was carrying nothing (the
suspect was reported to be carrying a garbage bag).
The Court found the Crown failed to demonstrate that
the officer objectively had an articulable cause to stop
the accused and therefore the detention was not
justified. Since the officer lacked proper justification

Volume 1 Issue 10
October 2001

for the stop (and thus an arbitrary detention), the
resulting search that led to the discovery of the
evidence was a s. 8 Charter violation. The evidence was
thus excluded and the accused acquitted.
Complete case available at www.provincialcourt.bc.ca.

PROTECTING PRIVACY:THE
PURPOSE OF S.8 CHARTER
Sgt. Mike Novakowski

Canadian jurisprudence has recognized
the underlying purpose of s.8 is "to
secure the citizen's right to a
reasonable expectation of privacy
against government encroachments2". This privacy
guarantee may be expressed in two ways. It can be
expressed as a freedom from 'unreasonable' search
and seizure, or alternatively, as an entitlement to a
'reasonable' expectation of privacy3.
Privacy, in the Constitutional context, relates to
privacy interests of persons, not of places4. For
example, s. 8 would not protect an unoccupied public
washroom stall. However, if a person were to occupy
that same stall, it could be said that a person may have
a reasonable expectation of privacy and be afforded
some protection by s.85. Similarly, a person who enters
a public telephone booth and closes the door is entitled
to assume the conversation will be kept private and
free from interception by the state. In both cases, the
state intrusion encompasses a particularized place,
however the privacy interest of the person and the
protection of s.8 is triggered because of the
individual’s presence and reasonable expectation of
privacy in that place.
In R. v. Edwards (1996) 1 S.C.R. 128 (S.C.C.), the police
conducted a search of the accused's girlfriend’s
apartment for drugs. The Court found the accused's
rights under s.8 had not been violated because he could
not demonstrate, on the balance of probabilities, that he
had a reasonable expectation of privacy in his
girlfriend's apartment. The court found the accused,
who was not present in the apartment, was nothing more
2

R. v. Dyment [1988] 2 S.C.R. 417 (S.C.C.).
Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) at p.108.
4
See Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.),
Edwards v. the Queen (1996), 104 C.C.C. (3d) 136 (S.C.C.).
5
See R. v. Baker [1998] B.C.J. No. 1854 (B.C.S.C.), R. v. Sneed [1993]
B.C.J. No. 1067 (B.C.S.C.), R. v. LeBeau & Lofthouse (1988), 41 C.C.C.
(3d) 163 (Ont.C.A.).
3

3

than a privileged guest who stayed over occasionally,
contributed nothing to the rent or household expenses,
and had no authority to regulate access to the premises.
The Court emphasized that s. 8 “is a personal right and
protects people and not places.” The personal right to
be secure from unreasonable search or seizure may not
be asserted vicariously and a person may not rely on the
violation of a third parties’ rights to benefit themselves.
A person who is aggrieved by an unreasonable search
through the introduction of evidence obtained from a
search of a third parties premises or property has not
had their personal s.8 right violated unless they
themselves can establish a reasonable expectation of
privacy in relation to the place searched or thing seized.

Contextual Approach (Case by Case Basis)
What will constitute a “reasonable” expectation of
privacy will depend on the facts of the particular case
and will turn on the totality of the circumstances. The
“reasonableness standard under s.8 of the Charter
fluctuates with the context”6. For example, at border
crossings the reasonable expectation of privacy is lower
than otherwise available in a wholly domestic setting7 or
a person subject to arrest must expect a significant loss
of personal privacy8. In assessing whether a person has
a reasonable expectation of privacy, many factors
including the following will be considered9:
•
•
•
•
•
•
•

the person’s presence at the time of the search;
possession or control of the property or place;
ownership of the property or place;
historical use of the property or item;
the ability to regulate access, including the right
to admit or exclude others from the place;
the existence of a subjective expectation of
privacy;
the objective reasonableness of the subjective
expectation.

In R. v. Belnavis and Lawrence [1997] 3 S.C.R. 341, police
stopped a vehicle for speeding in which there were
three occupants. While running a computer check
because the driver could not produce the required
documents, police questioned the passenger in the rear
of the vehicle and noted three garbage bags containing
new clothing with price tags attached. After obtaining
conflicting stories from the occupants regarding
6

R. v. Briggs (2001) Docket:C34813 (Ont.C.A.)
R. v. Simmons [1988] 2 S.C.R. 495.
8
R. v. Higgins & Beare (1988) 45 C.C.C. (3d) 57 (S.C.C.)
9
R. v. Edwards (1996) 1 S.C.R. 128 (S.C.C.)
7

Volume 1 Issue 10
October 2001

ownership of the bags, the officer searched the vehicle.
At trial the judge found a breach of s.8 and excluded
the evidence under s.24(2) of the Charter. On appeal,
the Supreme Court of Canada examined whether the
driver (Belnavis) and passenger (Lawrence) had
established a reasonable expectation of privacy in the
vehicle.
With respect to the driver, the Crown conceded that
the driver, who had the permission of the owner to be
driving, had a reasonable expectation of privacy and
“could advance a claim that her s.8 Charter rights were
violated by the police”. With respect to the passenger,
the majority of the Court found that she could not
demonstrate on a balance of probabilities that her
privacy with respect to the vehicle or goods was
violated:
[T]he question as to whether a passenger will have a
reasonable expectation of privacy in a vehicle will depend
upon the totality of the circumstances. All of the relevant
facts surrounding a passenger's presence in the vehicle
will have to be considered in order to determine whether
the passenger had a reasonable expectation of privacy. In
this case, although [the passenger] was present at the
time of the search, there are few other factors which
would suggest she had an expectation of privacy in the
vehicle. First, her connection to the vehicle was extremely
tenuous. She did not own the vehicle, she was merely a
passenger in a car driven by a friend of the owner of the
vehicle. There was no evidence that she had any control
over the vehicle, nor that she had used it in the past or
had any relationship with the owner or driver which would
establish some special access to or privilege in regard to
the vehicle. [The passenger] did not demonstrate any
ability to regulate access to the vehicle. Finally, there was
no evidence that she had a subjective expectation of
privacy in the vehicle.

PRIVACY ZONES
There are essentially three privacy zones encompassed
by s.8 of the Charter10:
•
•
•

personal
spatial
informational

Personal
Personal privacy zones involve the expectation of
privacy in the bodily integrity of a person. The more
serious an affront to human dignity the greater the
10

R. v. Dyment [1988] 2 S.C.R. 417 per La Forest.

4

privacy interest. When the search or seizure "relates
to the body, rather than the home, for example, the
standard [warranting state intrusion] is even higher
than usual11". The more invasive the search, such as a
body cavity search, the greater the assault on a
person's dignity12, thus the greater the justification
required. Personal searches may vary in degree of
intrusiveness:
•
•
•
•

intrusive frisk search of a person authorized incidental
to arrest13.
•

frisk or pat down searches
strip or skin searches
body cavity searches
bodily substance searches (biological samples/body
tissue)

However, a person’s reasonable expectation of privacy
relative to their person will be assessed by the
context. In R. v. Briggs (2001) Docket:C34813
(Ont.C.A.) Weiller J.A. for the Ontario Court of Appeal
wrote:
The extent to which state intrusion with bodily integrity
will be tolerated under the Charter is linked to the
reasonable expectation of privacy that an individual has.
There is a significant difference in the reasonable
expectation of privacy and, hence, the protection from
interference with bodily integrity afforded to a person
who is a suspect but has not been charged, a person who
has been arrested and charged, a person who has been
convicted, and a person who is subject to a custodial
sentence. … A person who has been convicted … no longer
has the benefit of the presumption of innocence.
Persons convicted of serious crimes may be subject to
sentences of incarceration in prison or in jail. Such
persons are subjected to strip searches, body cavity
searches and constant supervision.
Human dignity is closely aligned with an individual’s
freedom of choice. A person convicted of a crime has a
lesser expectation of privacy not because that person’s
worth as a human being is less, but because the person’s
right to make choices about his or her life is curtailed.

A search of a dwelling house must be approached with
the degree of responsibility appropriate to an invasion
of a place where the highest degree of privacy is
expected.

The "reasonable expectation of privacy includes
the expectation that their personal conversations
carried on in a "normal" tone of voice will not be
eavesdropped upon by agents of the state18.
Similarly, persons have a reasonable expectation of
privacy in the approach to their home19. However,
there will be occasions where the principle of
inviolability of the home will yield to the legitimate
requirements of law enforcement.
•

Spatial
Spatial, territorial, or geographical privacy zones
involve a person’s expectation of privacy in a place or
surroundings such as a home, vehicle, or business. Like
personal privacy zones, an arrest significantly reduces
the expectation of privacy and the search of a motor
vehicle, for example, is less an affront to a person's
liberty, dignity, and bodily integrity than a minimally

11
12

R. v. Dyment [1988] 2 S.C.R. 417 per La Forest at para.35.
R. v. Debot [1989] 2 S.C.R. 1140 per Lamer J.

Volume 1 Issue 10
October 2001

The public has a reasonable expectation of privacy
within the sanctity of their dwelling house,
whether it is an apartment unit, a detached home,
or a hotel room14. The principle that "a man's home
is his castle" is a bulwark for the protection of the
individual and the sanctity of the home affords the
individual a measure of privacy and tranquility
against the state15. There is no place where persons
can have a greater expectation of privacy than
within their dwelling house and the unauthorized
presence of agents of the state in a home is the
ultimate invasion of privacy16. Thus, when the object
of an unreasonable search is a dwelling house, any
violation of the Charter will be rendered all the
more serious17. As stated by Carthy J.A. in R. v.
Sutherland (2000) 150 C.C.C. (3d) 231 (Ont.C.A.) at
p. 239:

A person may have a reasonable expectation of
privacy in a premise other than a dwelling house
such as a business. For example, the area of a
business establishment open to the public would not
be protected by s.8 of the Charter during regular
business hours. A business "that is open to the
public with an implied invitation to all members of
the public to enter has no reasonable expectation of
privacy from having a police officer enter the area
of the premises to which the public are impliedly

13

Caslake v. the Queen [1998] 1 S.C.R. 51 per Bastarache J.
R. v. Love (1995) 102 C.C.C. (3d) 393 (Alta. C.A.)
15
R. v. Silveira [1995] 2 S.C.R. 297 per La Forest at para.41.
16
R. v. Silveira [1995] 2 S.C.R. 297 per Cory J. at para. 140 and 148.
17
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.570.
18
R. v. Sandhu (1993) 82 C.C.C. (3d) 236 (B.C.C.A.)
19
R. v. Evans (1996) 104 C.C.C (3d) 23 (S.C.C.)
14

5

invited"20. However, private or non-public areas such
as an office in the back of the same establishment
would be afforded some protection under the
Charter21 .
•

An individual driving a vehicle
on a public roadway, although
having
a
reasonable
expectation of privacy, has a
reduced expectation of privacy in relation to a
dwelling house or office22. Operating a vehicle is a
highly licensed, regulated, and inspected activity,
vehicles operate on public roadways, vehicles are
parked and are serviced in public places, and vehicle
interiors are highly visible. The driver of a vehicle,
who either is the owner or has the permission of
the owner to drive it, has a reasonable expectation
of privacy with respect to the vehicle and its
contents. A passenger may or may not have a
reasonable expectation of privacy in a vehicle,
depending on the relevant facts surrounding their
presence in the vehicle23.

Informational
Informational privacy zones involve
the expectation of privacy in retained
personal information (provided in
confidence). Its use is restricted to
the purpose for which it was divulged.
For example, a person who provides
personal information to a physician for medical
purposes may have a privacy interest in that
information. The personal medical information may not
necessarily be freely provided to the police by staff.
Similarly, where the police unreasonably seize hair and
blood samples, the accused maintains a privacy interest
in the information pertaining to these bodily samples24.
In considering whether a person has a reasonable
expectation of privacy in information, the following
factors must be assessed in balancing societal
interests in protecting individual dignity, integrity, and
autonomy with the government’s interest in advancing
its
goals,
notably
those
of
effective
law
enforcement25:
20

R. v. Fitt (1995) 96 C.C.C. (3d) 341 affirmed (1996) 103 C.C.C. (3d)
224 (S.C.C.), R. v. Spindloe 2001 SKCA 58.
21
R. v. Kouyas (1994) 136 N.S.R. (2d) 195 (N.S.C.A.)
22
R. v. Higgins and Higgins (1996) 111 C.C.C. (3d) 206 (Que.C.A.) at
p.212.
23
R v. Belnavis (1997), 118 C.C.C. (3d) 405 (S.C.C.)
24
R. v. Borden (1994) 92 C.C.C. (3d) 404 (S.C.C.)
25
R. v. Plant [1993] 3 S.C.R. 281 (S.C.C.)

Volume 1 Issue 10
October 2001

•
•

•
•
•

the nature of the information itself,
the nature of the relationship between the party
releasing the information and the party claiming its
confidentiality,
the place where the information was obtained,
the manner in which the information was obtained,
and
the seriousness of the crime being investigated.

In R. v. Dorfer (1996) 104 C.C.C. (3d) 528 (B.C.C.A.),
police, hoping to acquire DNA evidence from the
accused (who was a prisoner), obtained information
from prison officials as to the time and place where
the accused would have dental treatment. The Court
found the “presence of a patient is information
classified as “neutral”” and providing such information
would not result in a s.8 violation:
Divulging such information does not, by itself, breach a
common law duty of confidentiality to a patient. Such
information is not of such personal nature that a doctor or
dentist must refuse to disclose it upon being questioned by
a police officer in a criminal investigation. Thus, even in a
non-prison setting there can be no reasonable expectation
of privacy in respect to such information.

In R. v. Plant [1993] 3 S.C.R. 281, police received an
anonymous tip of a marihuana grow operation being
operated at a Calgary address. Police, after confirming
the address, conducted a computer query of the
electrical consumption records of the suspect residence
on a computer located at the police office that was
linked to the utility company. Police used this
information to support an application for a search
warrant. In finding that the police search of the
electrical consumption information did not infringe the
accused’s right to privacy, the majority held:
Overall, I have concluded from the nature of the
information, the relationship between the appellant and
the Commission, the place and manner of the search and
the seriousness of the offence under investigation, that
the appellant cannot be said to have held a reasonable
expectation of privacy in relation to the computerized
electricity records which outweighs the state interest in
enforcing the laws relating to narcotics offences. As
such, the appellant has failed to bring this search within
the parameters of s. 8 of the Charter. This information
was, therefore, available to the police to support the
application for a search warrant.

6

COPY OF RECORDED SEXUAL
ASSAULT NEED NOT BE
PROVIDED TO ACCUSED
R. v. W.A.O., 2001 SKCA 64
The accused allegedly sexually
assaulted the victim and while doing
so recorded on videotape the assault.
The videotape, seized by police,
“captured the sexual acts underlying
the charge of sexual assault”. Crown refused to provide
a copy of the tape to the accused (citing a fear the
victim’s personal privacy would be further compromised)
but was prepared to permit a viewing of the tape by the
accused, his counsel, and any defence expert at the
Crown or defence counsel’s office. The accused applied
under s.24(1) of the Charter arguing he was entitled to a
copy of the tape as the Crown had a duty of disclosure;
allowing the accused to make full answer and defence to
the charge he was facing (a right protected under s.7 of
the Charter). In dismissing an appeal of the Court of
Queen’s Bench ruling that Crown need not provide a copy
to the accused, the Saskatchewan Court of Appeal
(recognizing the Crown disclosed the existence and
content of the tape but chose not to provide a copy)
found the Crown appropriately exercised its discretion
in “protecting the privacy interests of the complainant,
on the one hand, and of enabling the accused to examine,
the tape on the other”.
Complete case available at www.canlii.org.

OFFICER JUSTIFIED IN
STRIKING SUSPECT TWICE
WITH BATON
McNabb v. Regina (City) Police, 2001 SKQB 355
After a short vehicle pursuit, the
plaintiff, who was the driver, jumped
from his vehicle and began running
down an alley. A police officer gave
chase while carrying his police baton.
A confrontation occurred and the plaintiff claimed he
was struck approximately 31 times by the officer with
his baton; 6 times prior to curling into the fetal position,
10 times while in this position, and 15 times after being
handcuffed. The defendant officer testified that he
attempted to strike the plaintiff’s legs with the baton

Volume 1 Issue 10
October 2001

but the plaintiff fell and the officer slipped past him on
the wet ground. After the plaintiff rose from the
ground he advanced on the officer, who instructed the
plaintiff to remain on the ground. The plaintiff did not
comply with the officer and the officer delivered a
baton strike to the plaintiff’s torso. A second blow that
followed struck the plaintiff on the head. The officer
stated that he never intended to strike the plaintiff’s
head and attributed the strike to the muddy terrain in
the alley and the darkness of the area. The plaintiff fell
to the ground and was arrested by the officer for
impaired driving, dangerous driving and suspicion the
vehicle may have been stolen. The judge found the
plaintiff not to be a credible witness and accepted the
evidence of the officer. A police expert testified he
“had no concerns about the use of force in the manner
described”. Barclay J. of the Saskatchewan Court of
Queen’s Bench recognized that “a peace officer having
the right to use force must use it reasonably and not
negligently or else be liable for all damages for the
negligence caused” and dismissed the plaintiff’s lawsuit.
In this case the Court “found that [the officer] … was
justified in arresting [the plaintiff] and that he used
reasonable force”.

DETENTION LAWFUL: ODOUR
SEARCH REASONABLE
R. v. Brown, 2001 SKQB 382
A police officer was at his residence
when he heard a loud noise and
became suspicious because there had
been many break and enters in the
town. After leaving his residence,
the officer stopped the only vehicle in the area which
happened to be a van driven by a female and occupied by
the accused passenger. While asking the driver if she
had heard anything, the officer detected a strong odour
of marihuana. Although denying possessing any drugs,
the driver permitted the officer to search the van ,
which he did, with a flashlight. The officer went to the
passenger side of the vehicle where he noted the odour
of marihuana intensified. The officer requested the
accused to exit the vehicle and to search her pockets.
The accused appeared nervous and the officer observed
aluminum paper in her lower right leg pocket of her army
pants.
In dismissing the accused’s argument that she had been
arbitrarily detained, the Court stated, at para.9:

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Here the detention of the vehicle was in the course of an
investigation. The undisputed evidence discloses that there
had been a series of break-ins in the town… The incident
occurred at 1:00 a.m. on Tuesday after [the officer] heard
loud bangs. Neither the driver nor the van were familiar to
[the officer] and it was the only vehicle in the area. In this
case [the officer] did not randomly stop the van. He
deliberately stopped it as he was investigating a potential
break-in.

marihuana. The accused was sentenced to 30 days in jail
and received a $3,000 fine for this earlier offence.
In granting the Crown’s appeal, and imposing a custodial
sentence of 2 years less a day, the Court weighed the
favourable circumstances of the accused (married,
employed, children, overcoming cocaine abuse) with the
aggravating factors.
…this was a second offence. The [accused] was involved as
a principal in a very profitable illegal business. Sentences
can be viewed as a cost of doing business and lenient
sentences provide little deterrent compared to the profit
potential. As well as the profit potential these operations
create other risks including the risks of fire hazards and
violence through the involvement of organized crime…

And further, at para.12:
It is critical to underscore that a police officer who stops
a vehicle based on a reasonable suspicion is not arbitrarily
detaining a vehicle.

In finding the detention lawful, the Court addressed the
legality of the arrest with respect to the sufficiency of
the odour of marihuana providing reasonable grounds
upon which to justify the arrest. In this case, the
“strong smell of drugs gave [the officer] reasonable
grounds to search the van, the operator and, had he
wished to do so, the passenger”. The fact that the
search preceded the arrest was of no consequence
because “the decision to defer the formal arrest until
the results of the search were known did not affect the
reasonableness to the search itself”. The Court
dismissed the accused’s appeal and the conviction for
possession of cannabis resin stood.

DRUG GROWERS SENTENCE
INCREASED FROM
CONDITIONAL SENTENCE TO
INCARCERATION
R. Tran, 2001 BCCA 503
The accused was convicted of
cultivation
and
possession
of
marihuana for the purpose of
trafficking and given a conditional
sentence of two years less a day.
Police found 3,900 marihuana clones and 45 mother
plants in a townhouse unit in which the accused was a
tenant and which was described as “a sophisticated
indoor marihuana growing operation known as a clone
factory”. The accused was arrested leaving the
townhouse and entering a vehicle containing US$59,000
and CDN$22,000. The accused had also been convicted
six months before this arrest for cultivation of

The BCCA found the “trial judge failed to give adequate
weight to the factor of general deterrence in the
sentence he imposed for a second offence by a principle
participant”.
Complete case available at www.courts.gov.bc.ca.

Note-able Quote
“Police officers have difficult duties to perform and
must often make quick decisions but if the society in
which we live is to maintain its peace and tranquility,
there will be occasions when innocent citizens will be
put to some trouble and inconvenience by the actions
of police officers acting in good faith. This is one of
the small prices that we must pay for our
freedom….There are, of course, occasions when police
officers exceed their authority and arrogate
themselves powers and privileges which legally they do
not have. In those situations such officers must be
dealt with according to law26”. Sask.Crt.Q.B. Justice
Johnson

FEEDBACK WANTED
For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

26

Volume 1 Issue 10
October 2001

Carr v. Forbes et al. (1980) 7 Sask. R. 123 (Q.B.) at p.125.

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