POLICE ACADEMY

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

2004 POLICE LEADERSHIP
CONFERENCE
APRIL 5-7, 2004
Mark your calendar! The British
Columbia Association of Chief's
of Police, as the major sponsor,
along with the Ministry of the
Attorney General Police Services
and the Justice Institute of British Columbia will
be hosting the "Police Leadership 2004
Conference" April 5 to 7, 2004 at the Westin
Bayshore in Vancouver, British Columbia.
The conference will emphasize leadership as an
activity, not a position, and provide an opportunity
for participants of all ranks from police agencies
across Canada, the United States, and beyond to
involve themselves in leadership initiatives. A
carefully chosen list of speakers will provide a
first class opportunity to hear some of the
world's outstanding authorities on leadership.
For more updates on this conference as they
develop, please bookmark:
www.policeleadership.org

JIBC LAUNCHES NEW
WEBSITE
The Justice Institute of British
Columbia
has
updated
its
website. Included on this site is
a new Police Academy link
providing access to the “In
Service:
10-8” Newsletter,
training bulletins, course information, private
security programs, and other related information.
Log on at www.jibc.bc.ca and enjoy the surf.

Volume 3 Issue 3
April 2003

UNNECESSARY DETENTION
RESULTS IN UNREASONABLE
STRIP SEARCH
R. v. S.F. & J.L., [2003] O.J. No. 92
The police contacted the two
young offender females (17
years and 15 years old with no
prior criminal history) at their
homes, informed them that they were suspects in
a robbery that occurred about a month earlier,
and asked that they turn themselves in. The girls
attended the police station with their parents and
were subsequently arrested for the robbery.
Following arrest, both girls were separated from
their parents and taken before the officer in
charge. The police had decided that the girls
should appear for a show cause hearing to be
released on bail with conditions. As a
consequence, booking protocol required the girls
be lodged in station cells before being
transported to the courthouse for the hearing.
As part of the booking procedure, each girl was
strip searched to determine whether they were
secreting weapons or contraband on their person.
Up until this point, no search, including a minimally
intrusive frisk search, had been conducted. The
strip search was overseen by a female officer in
an area designed to provide a measure of privacy
and only lasted about 5 minutes. The booking
procedure was captured on surveillance videotape
while the strip search was only partially shielded.
The search screen intended to afford privacy was
not high enough and the girls’ breasts and upper
bodies were caught on tape. Nothing was found
during the search and the girls were lodged in
separate cells.

The girls brought an application under s.24(1) of
the Charter seeking a stay of proceedings on the
basis that the strip search violated their Charter
rights including the right to be secure against
unreasonable search and seizure under s.8. The
Crown argued that there were no Charter
breaches and the application should be dismissed.

It was, in short, a concern about safety; safety of
the girls themselves while they were in detention,
safety of others with whom they might come into
contact, and the safety of the police
themselves. It is obviously in the interests of
police and of society as a whole to ensure that
persons who are detained are not armed with items
that can be used to harm themselves or others.

Unreasonable Search and Seizure

The information in the hands of the investigating
officer bearing on the alleged robbery included
allegations that the complainant had been injured
in the robbery, that she had had lotion sprayed in
her hair when her CD player was forcibly taken
from her, that she was afraid of these girls, that
the incident had occurred near a high school, that
it had "gang" overtones, although it was not known
definitively whether these two girls were members
of a gang. If that information proved true, there
was reason for the police to believe that each girl
presented a risk of harm to the complainant and
potentially to others in the community. That
potential risk was, in fact, the reason underlying
the decision of the investigating officer, accepted
by the arresting officers and not questioned by
the officer in charge, to seek a surety bail for
each girl, one with a hefty penal sum and conditions
governing them pending trial or other resolution of
the charge.

Since there was no warrant for the strip
searches, the Crown bore the burden of
satisfying the court that the search was
nonetheless reasonable. Justice Katarynych of
the Ontario Court of Justice recognized that at
common law the police may strip search a person
incidental to an arrest if the following criteria
are met:
• there was a lawful arrest (the police had
reasonable grounds);
• the search is truly incidental (or connected) to
the arrest;
• the police have reasonable grounds to justify
the strip search; and
• the strip search is conducted in a reasonable
manner.

Lawful Arrest
The accused conceded that the arrest was
proper.

Search Incidental to Arrest
The police may only search as an incident to
arrest if the search is connected to the reason of
the arrest for the purpose of discovering and
recovering evidence or weapons. Furthermore, the
officer need not have an independent reasonable
belief that weapons or evidence will be found.
Instead, the search power derives from the fact
of arrest. In this case, the search was not made
to find evidence connected to the robbery. The
robbery had occurred almost a month earlier.
However, the police were concerned with safety.
Justice Katarynych wrote:

Volume 3 Issue 3
April 2003

In that sense, the objective of the search
(discovery of weapons) was connected to the
reason for the arrest (a violent crime).

Grounds Justifying a Strip Search
Justice Katarynych was very critical of the police
decision to detain the girls that triggered the
policy on strip searches. In his view, there was no
justification for the detention to show cause and
therefore no justification for the strip search.
He held:
This strip search was inextricably bound up with
the decision of the officers to lodge these girls in
the cells.
The single focus on the charge unleashed a chain
of thinking that went something like this: robbery charge means no release without a show
cause hearing; no release means detention in the
station cells; any person detained presents a risk
that can only be contained by a strip search;

2

therefore, lodging in the station cells requires
strip search.
I accept, as a matter of common sense, that police
cells and police paddy wagon transport are
environments that need to be kept freed of
weapons or contraband for the safety of those
imprisoned, and those coming in contact with them,
and that the safety issues are no less for a person
detained waiting a bail hearing than they are for
any other person in custody.
The difficulty in this case is that these two young
girls were swept into a policy and attitude that
took no meaningful account of whether their
particular circumstances presented a level of risk
at all.
On the evidence in this voire dire, I could find no
justification for lodging these girls in the cells at
all, and since it was that particular lodging that
triggered the "need" for a strip search, nothing
with which to reasonably ground a belief that a
strip search needed of either girl to guarantee the
safety of the police, the two girls themselves or
others detained in the station or at the
courthouse.
I was frankly puzzled that the police officers
detained these two girls in the station pending
their court appearance on this charge. No
authority was cited for the proposition that the
charge of robbery created some sort of "reverse
onus" situation for these youths that required
them to displace a presumption that they would be
detained.

In the judge’s opinion, the two girls could have
been released to their parents and remained with
them in the station conference room or the
reception area to pass the time until the
afternoon sitting of the court. Thus, the strip
search could have been avoided altogether.
Justice Katarynych continued:
In choosing the more onerous manner of detention,
the officers knew that they had activated both
the need to keep the cells safe from these girls
and all the "rules" governing safety in custodial
facilities. This was a safety issue that the police
officers themselves created by their choice to
bypass any less onerous method of bringing these
girls before the court.

Volume 3 Issue 3
April 2003

In sum, there was no justification for the strip
search in this case because there was no
justification for the detention that triggered it.
Even if there had been, this search veered outside
the boundaries required by the common law for
searches of this level of intrusion.
The common law requires reasonable and probable
grounds for the level of search selected by the
police. The more intrusive the search, the greater
the degree of justification needed to hold it within
the scope of s. 8 of the Charter.
The choice of strip search emerged from a deeply
rooted belief on the part of all the station
officers involved with these girls, including the
officer in charge who had responsibility for the
search decision, that it is the only reasonable and
effective way to uncover weapons and contraband
concealed on the person of detainees.
It was "red alert" and "worst case scenario"
philosophy that fed the decision with regard to
this particular search. The thoroughness of a
search mattered to these officers. All of them
acted in a genuinely held belief that a strip search
was the only meaningful and responsible way to
ensure their own safety, the safety of the girls
themselves and others in custody with whom they
would come in contact until their release.

And further
There is no doubt, as all of the officers testified,
that a strip search is far more effective in
locating weapons and contraband than a frisk or
pat-down
of
the
person's
clothed
body. Effectiveness is not, however, the only
consideration that can be permitted to drive police
thinking, when the issue is an intrusion of a
person's privacy.
The nature of the offence with which an accused is
charged is an important consideration, as the
Crown properly points out. Safety in custodial
facilities, whether station cell, transport wagon or
courthouse cell is also an important consideration.
Yet an informed exercise of discretion cannot end
there. A spectre of foreboding and fear cannot be
allowed to overwhelm both the ability and the
motivation of the officers to fix their attention on
factors specific to the person upon whom their
decision is to be visited.

3

In the Court’s opinion, there were no reasonable
grounds to believe that either accused posed a
safety concern. The police response did not
reflect the specific circumstances that existed
and the strip search was completely unnecessary.
Thus, the search was unreasonable.

Reasonable Manner
Justice Katarynych also found that the manner in
which the search was conducted unreasonable.
Firstly, no pat-down search was conducted prior
to the strip search. This left the girls more
vulnerable than necessary because a frisk search
may have been sufficient to address police
concerns. Without it, the means to ascertain
whether there was in fact a need for a more
intrusive search was bypassed. Secondly, a
portion of their naked body was captured on
videotape, which resulted in “excruciating
embarrassment”.
The Court granted the application and the
robbery charges were stayed.

ROADSIDE DETENTION &
VEHICLE SEARCH LAWFUL
R. v. Hunter, 2003 SKPC 18
A police investigator received
confidential information from a
reliable source that the accused
would be driving a 4-door Ford
Tempo from Prince Albert to Saskatoon to pick up
a large quantity of marihuana. Surveillance was
established on the accused and he was observed
driving into Saskatoon, attend a residence emptyhanded, exit with a white bag, and then enter his
car and leave the city. The police investigator
wanted uniformed officers to stop the accused,
and either attempt to gather more grounds to
search or obtain his consent.
A check-stop program in operation was moved
onto the highway where he could be intercepted.
The accused, operating a vehicle with one burnt
out headlight, was waved over to the side of the
road after he arrived at the check-stop. He was

Volume 3 Issue 3
April 2003

asked for his driver’s licence and vehicle
registration. An exterior and interior vehicle
standards check was conducted and at one point
the accused was asked to exit his vehicle to allow
the officer to get inside. Immediately upon
entering the car, the officer smelled an odour of
marihuana.
The emergency break was found to be broken and
the officer continued his check through the
remainder of the vehicle for about five minutes.
The officer concluded he could smell unburned
marihuana and told the accused. He was arrested
and a police dog searched the car. Police found
636 grams of marihuana in a bag behind the
passenger seat. At his trial in Saskatchewan
Provincial Court on a charge of possession of
marihuana for the purpose of trafficking the
accused argued, in part, that his right to be
secure from unreasonable search and seizure
under s.8 of the Charter had been violated and
the evidence should be excluded under s.24(2).

The Detention
Although the accused did not argue that his right
under s.9 of the Charter to be free from
arbitrary detention had been violated, Justice
Carter nonetheless addressed the issue. Under
s.40(8) of Saskatchewan’s Highway Traffic Act,
identifiable police officers are entitled to stop
drivers of motor vehicles while in the lawful
execution of their duties. If the stop in this case
had been truly random, the officer at the checkstop would only be entitled to investigate things
related to highway traffic safety; investigative
purposes or searches unrelated to traffic safety
would not be allowed.
However, the stop in this case was not random.
The entire check-stop had been moved “to set a
net to catch” the accused. The check-stop officer
was part of a criminal investigation and he had an
articulable cause (unrelated to highway safety)
based on information he received from the
investigator. As a result, the stop (detention) was
not arbitrary.

4

The Search
Although every warrantless search is prima facie
unreasonable, the Crown successfully rebutted
the presumption in this case. Justice Carter,
relying on previous Saskatchewan case law1, noted
the following prerequisites of a lawful search
absent a warrant:
•
•

•
•

a lawful detention;
reasonable grounds to believe an offence has
been, is being, or is about to be committed
and that the search will disclose evidence
relevant to that offence;
exigent circumstances render a warrant
unfeasible; and
the scope of the search is reasonable with
respect to the offence suspected and the
evidence sought.

Having already found the detention lawful,
Justice Carter examined whether the check-stop
officer had the required reasonable grounds. In
his view the officer had the necessary reasonable
grounds based on information provided to him by
the investigating officer. He simply could have
waived the accused over at the moment he saw
him and began a search. However, he instead
chose to do what he normally does at a checkstop. Once he was certain he smelled unburned
marihuana, he arrested and searched. With
respect to exigent circumstances, the Court
stated:
Exigent circumstances did exist in this case. The
evidence before this court is that telewarrants are
not available for searches of this nature. Requiring
[the investigating officer] to obtain a written
warrant to search the accused in these
circumstances would have taken amazing logistical
gymnastics and might very well have resulted in
the evidence being removed from the car and
distributed amongst others or hidden.

The scope of the search was also reasonable. It
“was quick and efficient.” A police dog was used
and the car was not dismantled. As well, “the

accused was [not] strip searched or otherwise
publicly degraded on the highway.”
Complete case available at www.canlii.org

RIGHT TO COUNSEL IN
REVIEW
Sgt. Mike Novakowski
Section 10(b) of the Charter provides persons
arrested or detained with the right to retain and
instruct counsel without delay and to be informed
of that right. The police obligations imposed by
s.10(b)2 include clearly and properly informing the
person by a method of communication and in
terms the person can understand at a time they
are capable of understanding that they have the
right to retain and instruct (obtain) counsel of
without delay and of the existence and availability
of Legal Aid and duty counsel. If there are special
circumstances suggesting a diminished capacity or
lack
of
understanding,
such
as
shock,
drunkenness, or mental deficiency, further
explanation is required.
If the person chooses to exercise their right to
counsel they must be provided the opportunity to
exercise the right without delay and to retain
counsel of their choice. This may require assisting
the person in their efforts to obtain a lawyer and
includes ensuring privacy. Furthermore, the police
must stop eliciting evidence prior to affording
them the reasonable opportunity to retain and
instruct counsel. If the person is not diligent, this
"holding off" obligation is waived
The Crown has the burden of establishing that
the person who invoked their right to counsel was
provided with a reasonable opportunity to contact
counsel.
The person has the burden of
establishing that they were reasonably diligent in
the exercise of their right. If the person was not
reasonably diligent then the implementational
duties of s.10(b) do not arise or will be
suspended3 and the police may continue with their
investigation.
2

1

R. v. D.(I.D.) (1987) 38 C.C.C. (3d) 289 (S.K.C.A.)

Volume 3 Issue 3
April 2003

3

See for example R. v. Luong (2000) 149 C.C.C. (3d) 571 (Alta.C.A.) at p.574-575.
R. v. Luong (2000) 149 C.C.C. (3d) 571 (Alta.C.A.) at p.575.

5

Volume 3 Issue 3
April 2003

6

CONSENT SEARCH
REQUIRES MORE THAN
COMPLIANCE WITH
DEMAND
R. v. Ciancio, 2003 BCPC 0023
A police officer pulled over an
out of province vehicle to check
if the accused had a valid
driver’s licence and whether the
vehicle was properly insured. At the time of the
stop there were no reasonable grounds to believe
any offence had been committed. The accused
produced a valid Alberta driver’s licence but the
vehicle, registered to a limited company, had
insurance which expired four days earlier. The
vehicle was not reported stolen and the officer
called for back-up, wrote an insurance offence
ticket, and called for a tow truck.
Expressing a concern over responses provided to
his questions that the accused was not in lawful
possession of the vehicle, the officer asked if he
could conduct a “voluntary search” of the trunk to
look for papers or documents related to the
accused’s possession of the vehicle.
Upon
demand, the accused opened the trunk with a key.
Clothing, a framed print, and cellular telephone
equipment were noted in the trunk, but not
searched. However, the officer opened a latched
compartment and saw what appeared to be a
daytimer in a zipped case.
The accused stated it was his, said “You don’t
need to see that. I don’t like this”, and reached
for it. He was stopped and the police found a
pistol and magazine with rounds in the daytimer.
The accused was arrested, the items were placed
back in the trunk, the vehicle was towed to the
police detachment, and a warrant was obtained
for the vehicle.
During the voire dire to determine the
admissibility of the pistol, magazine, and rounds,
the accused argued that his rights under s.8 of
the Charter to be secure against unreasonable

Volume 3 Issue 3
April 2003

search and seizure were breached. Conversely,
the Crown submitted that the initial search was
lawful because it was consentual. Moreover, once
the consent was withdrawn the continued search
was justified for officer safety when the
accused’s demeanour changed in reaction to the
unlatching and opening of the compartment.
British Columbia Provincial Court Justice Gove
found the initial stopping of the vehicle
authorized under British Columbia’s Motor Vehicle
Act to determine whether the driver had a valid
licence and also to check if the driver was
properly insured. The expired insurance also
justified the impounding of the car until valid
insurance could be obtained. However, the search
that followed was unreasonable. Justice Gove was
not satisfied that the officer was able to
articulate why he wanted to legally search the
vehicle. His reasons, to search for other
insurance documents or any papers with the
accused’s name connecting him to the car, were
speculative at best. The vehicle was not reported
stolen and it was going to be impounded. A
telephone call to the registered owner was the
“simplest solution” to resolve the officer’s
concern.
Nor was consent to search valid. For a consent
search to be lawful the consent must be voluntary
and the person must be aware of the
consequences in giving it. In this case the accused
was not told he had a choice in allowing the search
nor was he informed of the possible
consequences. Further, Justice Gove stated:
[The officer] told the accused to unlock the trunk.
Compliance with a demand cannot be taken as
consent. Inside the constable saw clothing, a
framed print and cellular telephone equipment. If
the police constable was looking for evidence tying
the accused to the motor vehicle, I would have
thought that he would have searched through some
of these items, in particular the clothes. He did
not. Instead, he seems to have gone almost
immediately to the latched door to the
compartment on the side of the trunk. Inside he
found the zipped daytimer. Any belief on behalf of

7

the officer that the search was by consent was
clearly withdrawn when the accused asserted his
right to privacy of the contents of the daytimer.

Officer safety concerns were also insufficient to
justify the search. The Court held:
[The constable] testified that he took the
daytimer and opened it due to his concern for his
safety, and safety of the other officer…. This was
due to the accused's change of demeanour. He said
that the accused went from somewhat compliant
and cooperative to now asserting his rights to
privacy.
The Crown submits that officer safety from this
point on justified the continued search. It is not
for the court to second-guess as to whether [the
constable] was justified, from a safety point of
view, in taking and opening the daytimer due to his
concerns about safety. Police officers often face
dangers and are given latitude in recognition of
this.
The constable's determination that there was a
safety issue due to the accused's change in
demeanour, cannot and does make a search that
was otherwise not lawful into one that is now
justified, such that property found as a result of
the search becomes not the result of an illegal
search, but somehow the result of searching for
officer safety.
At the time that [the constable] was searching the
trunk of the motor vehicle, he had no articulable
reason to do so. He did not have lawful consent
from the accused, and he was violating the
accused's rights to be free from an arbitrary
search. He is not to be criticized for seizing the
daytimer once he came upon it, if he felt that his
safety was at risk, but the officer safety concerns
cannot convert the non-consensual and unlawful
search into a lawful one. There is a distinction
between what the officer did for safety and
whether the accused's rights were violated.

As a result of this serious violation to the
accused’s s.8 rights, the evidence was ruled
inadmissible under s.24(2) of the Charter.
Complete case available at www.provinicalcourt.bc.ca

Volume 3 Issue 3
April 2003

‘PRIORITY ONE’ CALL
JUSTIFIES WARRANTLESS
ENTRY
R. v. Brown, 2003 BCCA 141
The police received a 911
“priority one” call from a
payphone located across the
street from a hotel that a man
had been stabbed and that there was a man with
a gun in either room 201 or 202. However, the
information could not be confirmed. Two police
officers responded and were told by the hotel
desk clerk that room 201 was occupied, but room
202 was vacant.
With handguns drawn, the officers attended
room 201, knocked, and announced their presence.
The accused opened the door and was taken into
custody. Although the room was small and the
police could see no one else in the room that
constituted a threat, they testified they entered
to check for injured persons, look for weapons,
signs of struggle, blood, or other evidence of a
crime. Once inside, an officer saw drugs on a bed.
Continuing his search, the officer found more
drugs in a partially open dresser drawer.
The accused was subsequently charged with
possession of a controlled substance for the
purpose of trafficking. The trial judge concluded
that the “police would have been remiss in their
duty had they not entered the room to look for
someone who may have been stabbed and whose
life might have been in jeopardy”. A warrant was
not necessary to enter and the 52 flaps of heroin
and 150 flaps of cocaine were found in plain view.
His submission that his s.8 Charter right to be
secure from unreasonable search was breached
was rejected and he was convicted.
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the trial
judge erred in finding the entry and search of
the room lawful. Although the accused conceded
that the police were acting in the course of their

8

general duty to protect life, that duty was
discharged when they looked into the room and
determined there was no one else present. He
contended that when the police discovered the
drugs they were exceeding the scope of their
protective duty and were then engaged in a
secondary search for evidence, which required a
warrant.
In rejecting the accused’s submission, Justice
Smith writing for the unanimous British Columbia
Court of Appeal stated:
I am not persuaded that the trial judge
misapprehended the evidence or that he erred in
failing to treat these events as two discrete
searches of the room for different purposes. The
dispatch call upon which the police officers were
acting suggested that the reported activity was
occurring in either Room 201 or 202. I do not
think that it can reasonably said in the
circumstances that the officers had completed the
execution of their general duty to protect life
until they had satisfied themselves that there was
no potentially dangerous assailant nor any injured
victim in either of the rooms or in any place nearby
to which their investigation of the two rooms
might have led them. In my view, the evidence
supports the trial judge’s conclusion that the
officers were justified in entering Room 201 for
the purposes that they described in their
testimony. Those purposes were within the scope
of their general duty to protect life and their
actions were, accordingly, authorized by law. The
suggestion that there were two separate searches
for different purposes is an artificial one in the
circumstances.

The accused’s conviction was upheld and the
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“There are not enough jails, not enough policemen,
not enough courts to enforce a law not supported
by the people.” Hubert H. Humphrey

Volume 3 Issue 3
April 2003

‘JUST’ICE OR NOT? IT’S
ALL IN THE MEANING OF A
WORD
R. v. Polischuk, 2003 BCPC 0076
A police officer following a
pickup truck at 1:00 am from one
trailer park to another noted it
did not signal at an intersection.
He lost sight of it but found it
parked in a driveway at the second trailer park 12
minutes later. The officer stayed in the area and
5 minutes later the truck left the trailer park
and drove past the police car. The officer again
followed and observed the truck being driven
below the speed limit and swaying in its lane. The
truck was stopped and the police officer dealt
with the accused driver.
The accused told the officer, “I have a dying
sister and I’ve just had a couple of drinks”. The
officer did not ask when the accused had his last
drink, although he knew that he must wait 10 to
15 minutes after someone’s last drink before
administering a test or otherwise a false failure
would occur as a result of residual mouth alcohol.
The roadside screening test was administered
and the accused failed. This provided reasonable
grounds and the officer pursued an impaired
driving investigation. Without the failure, the
officer testified there would have been no
charges.
During a voire dire challenging the roadside
screening test as a violation of the accused’s s.8
search and seizure Charter right, he argued that
the officer should have clarified the meaning of
the word “just “ in “I’ve just had a couple of
drinks”. British Columbia Provincial Court Justice
Brecknell noted that the term “just” could either
have temporal significance as in, “It was just a
few minutes ago”, or quantifying significance as
in, “There are just two of them”. If the word
“just” was meant to mean recently, the roadside
screening device failure would be unreliable and
could not elevate the officer’s suspicion to

9

reasonable grounds. In accepting the accused’s
argument that the officer failed to make further
enquiries over the word “just”, the Court held:
The police officer knew that the vehicle had been
parked within the 10 or 15 minute time frame
immediately prior to obtaining the test from the
defendant. There was no evidence called as to what
the defendant was or was not doing in that
residence for that period of time. But given his
answer or his statement to the police, "I have a
dying sister and I just had a couple of drinks," in
my view, and I conclude that the [officer] when
presented with that statement, combined with the
fact that he saw the pick-up truck parked, should
have put him on notice, on an objective basis, to
make further inquiries as to whether or not the
word "just" meant just as in time, "a few minutes
ago, I just had a few drinks," or just as to amount,
"I just had two drinks."
His failure to do so and to make that inquiry may
have allowed him to form a subjective opinion, but
does not meet what I conclude should have been
done to maintain necessity for coming to an
objective conclusion on the matter.
In my view, the roadside screening device test
results should not be admissible, and from that I
draw, at least from what Crown has said to this
point, that without that test result, the [officer]
had no reasonable or probable grounds to proceed
further with the investigation.
Complete case available at www.provincialcourt.bc.ca

X-PLORING X-PECTATIONS OF
GENERATION-X
Sgt. Mike Novakowski

limited labour force while at the same time retain
existing employees. Leaders must recognize the
differences among the generations that make up
their work force. Effectively leading generation
Xers will require learning “what they want, how
they feel, and how they view their world”4. By
understanding the generations, an effective
leader can modify their approach to the worker,
tap the worker’s capacities, and develop their
strengths. This article will focus largely on
generation
X
workers
and
offer
some
understanding of how to shepherd them in the
workplace.

Generational Generalizations
The Encarta World English
Dictionary5 defines a generation
as “all people who were born at
approximately the same time,
considered as a group, and
especially when considered as
having shared interests and attitudes”. In today’s
workforce there are four generations working
along side each other, although the exact
generational dates differ among authors:
veterans, baby boomers, generation X, and
generation Y. As a leader in contemporary
organizational life, it is important to understand
each generation. It is also important to remember
however, that these are only generalizations of
each group. Painting all persons with the same
brush who fall within the birth ranges identified
could be a disservice to the individual and the
organization. With this in mind, what follows is a
brief ‘bio’ of each generation.
Veterans, ‘traditionalists’, or
the ‘silent generation’, are
those persons born between
the early 1920s and 19456.
This generation was formed

Introduction
As today’s workforce ‘evolves’
across generational lines, new
leadership
techniques
are
necessary
to
manage
an
organization effectively. In
today’s market it is necessary
to successfully compete for a

Volume 3 Issue 3
April 2003

Nagle, Terri. (1999). Coaching generation X. [On-line] Available:
http://www.coachingandmentoring.com/Articles/x’s.html [2002, November 23] at
para. 5.
5
Encarta
World
English
Dictionary
(2002).
[On-line]
Available:
http://encarta.msn.com/encnet/features/dictionary.html [2002, November 24]
6
Hood, Sarah. (2000). Generational diversity in the workplace. HR Professional.
17(3), 19-21.
4

10

during the great depression and World War I.
They are considered hard working company
loyalists who are detail oriented and are closely
reaching retirement7. “They value hard work, law
and order and respect for authority”8. In policing,
this generation will soon largely be extinct, since
many
collective
labour
agreements
have
mandatory retirement at age 60.
Baby boomers, or ‘boomers’, are
those born between 1945 and
19659. Boomers grew up in the
age of the Civil Rights and
women’s
movements,
the
Vietnam War, and the sexual revolution. Boomers
live to work and, as a result, define themselves
through their work10. They “tend to be most
comfortable working within a chain of command
and expect promotions after years of hard
work”11. They are comfortable with the immediate
and familiar, while they struggle with change.
Generation X, ‘baby busters’,
‘13th generation’, or ‘twenty
somethings’, are those born
between 1965 and 198012. They
saw their parents getting
divorced and working late hours
while they became the generation known as ‘latch
key kids’. They are at ease and comfortable with
technology and change, and are shaped by
specialized knowledge13. Video games, television,
Hood, Sarah. (2000). Generational diversity in the workplace. HR Professional.
17(3), 19-21.
8
Commitment [Homepage]. How veterans, baby boomers, generation Xers and
generation nexters can all get along in the workplace. [On-line]. Available:
http://commitment.com/getalong.html [2002, November 23] at para. 3.
9
Hood, Sarah. (2000). Generational diversity in the workplace. HR Professional.
17(3), 19-21.
10
Brown, Robert M., LeMaster, Leslie, and Swisher, Steve. (2001) Training the
correctional work force of today and tomorrow. Corrections Today. 120-121
11
Ruch, Will. (2000) How to keep gen X employees from becoming x-employees.
Training and Development. 54(4), 40-43 at p.42.
12
Scott, Oreen. (2002). Baby boomers and generation-x in the workplace. [On-line]
Available: http://www.oreenscott.com/baby_boomers.htm [2002, November 23],
Alexander, Amy. (2002). Generation x: Love ‘em or they might leave ya. [On-line]
Available:
http://www.businessreport.com/pub/20_20/aalexander.
[2002,
November 23], Hacker, Carol A. (2002). Recruiting and retaining “generation Y and
X” employees. [On-line] Available: http://www.chartcourse.com/articlegenx
hacker.html [20002, November 21], Hood, Sarah. (2000). Generational diversity in
the workplace. HR Professional. 17(3), 19-21 at p.20, Brown, Robert M., LeMaster,
Leslie, and Swisher, Steve. (2001) Training the correctional work force of today
and tomorrow. Corrections Today. 120-121
13
Ruch, Will. (2000) How to keep gen X employees from becoming x-employees.
Training and Development. 54(4), 40-43.
7

Volume 3 Issue 3
April 2003

and computers were a staple in their lives. As a
result, they became more independent than
previous generations and more adaptive to change.
Generation Y, ‘Nexters’, or
‘Millennials’ are those persons
born since 1980. They are
growing up in a world defined by
school violence, diversity, and TV
talk shows14. Bismark State
College15 describes this optimistic and confident
generation as being ‘education minded’, with
feedback and praise as motivating factors in their
work life.
Since the majority of the police labour force is
comprised of baby boomers and generation Xers,
the remaining discussion will focus of these two
generations.

Comparing / Contrasting Generation-X
with Baby Boomers
Boomers enjoy the status quo, place loyalty to the
organization as a premier value, and are
uncomfortable with change. Generation Xers are
“more global, technologically oriented, and
culturally diverse than the generations before
them”16. This bodes well for police organizations
because
offenders
are
becoming
more
technologically
savvy
and
global.
Police
organizations will need generation Xers to utilize
their skills in combatting cyber and other
similarly
sophisticated
crimes.
They
are
“adaptable, independent, creative and technoliterate. They are not at all intimidated by
authority, which makes them able to cope with a
high level of responsibility. However, their people
skills are less developed than those of the
Boomer generation”17. Carol Hacker18 argues that

14
Commitment [Homepage]. How veterans, baby boomers, generation Xers and
generation nexters can all get along in the workplace. [On-line]. Available:
http://commitment.com/getalong.html [2002, November 23]
15
Bismark State College. (2001). Generations in the workplace: The Challenge and
Opportunities. Training Tips and Techniques. Vol 2 Issue 4.
16
Lankard, Bettina A. (1995). Career development and generation X. [On-line]
Available: http://ericacve.org/docs/genx.htm. [2002, November 11] at para. 1.
17
Hood, Sarah. (2000). Generational diversity in the workplace. HR Professional.
17(3), 19-21 at p.20.

11

generation Xers are self-described “free spirits”.
They are able to multi task, seek new challenges,
and thrive for recognition of their abilities.
Bettina Lankard19 describes generation X as
follows:
This generation is concerned about having a
balanced life. They are not workaholics and believe
in compartmentalizing their work, social, and family
lives. Their outside interests are as important to
them as their jobs….They are more realistic about
the balance between their work and family/social
lives that will give them satisfaction and make
them happy.

However, generation X is often described by the
boomers as “lazy, hostile, uneducated, antiauthority, apathetic couch potatoes”20. Pam
Wyess21 describes generation X as having the
“why” chromosome; constantly questioning what is
done. When given a direction, generation Xers no
longer reply “Yes Sir!”, but “Why Sir?”. This
questioning can be perceived by members of the
command and control model (the traditional
paradigm of policing) as challenging authority or a
sign of disrespect. Generation Xers also take a
holistic,
or
‘big
picture’,
approach
to
understanding an organization. “They are less
likely to accept a ‘because I said so’ attitude from
a supervisor”22. Unlike ‘blind’ boomers, who can be
characterized by blind trust, blind faith, and
blind acceptance in organizational status quo,
Xers question and examine the status quo, only
accepting what they believe is useful and
appropriate to their context. Again, this can be
seen as a lack of respect for, or insubordination
towards, authority.

Hacker, Carol A. (2002). Recruiting and retaining “generation Y and X” employees.
[On-line] Available: http://www.chartcourse.com/articlegenxhacker.html [20002,
November 21]
19
Lankard, Bettina A. (1995). Career development and generation X. [On-line]
Available: http://ericacve.org/docs/genx.htm. [2002, November 11] at para. 11.
20
Aguilar, Dahlia. (1993). Boom or bust? Hispanic. 6(4), 20-23 at p.20.
21
Wyess, Pam. (2001). Understanding the new breed of cop: Generation x in
policing. [On-line] Available: http://63.238.99.136/le_newsstand_5GenXtraits.asp
[2002, November 23]
22
Smith, Gregory. (2002). How to manage generation x employees. [On-line]
Available: http://www.chartcourse.com/articlegenx.html [2002, November 21] at
para. 4.

Leadership Appreciated by Generation X
Compared to Boomers
Gregory Smith23 suggests that baby boomers
have developed in a traditional workplace defined
by job security and loyalty to the organization.
Promotions are based on longevity and ‘time
served’. Respect is attained by position or rank
and action is taken only with direction. These are
also the characteristics of any paramilitary
organization, such as the police. Police
departments are highly regulated with policy and
procedure and have a thoroughly delineated rank
structure.
Although this may have worked in the ‘controlling’
environment of the traditional workplace, police
leaders must look beyond this status quo if they
seek to effectively manage across generational
lines. Generation X employees, on the other hand,
gain security from within and are loyal to
themselves, believe promotions should be based
on performance, challenge authority, and feel
respect should be earned24. The regulation and
hierarchy enjoyed by boomers can be viewed by
Xers as too constrictive, stifling the innovation
and creativity that motivates them.
The X generation does not trust the organization
or chain of command. They “tend to be less
accepting of traditional hierarchy and traditional
approaches to management”25. They grew up
seeing their parents lose their jobs through
restructuring,
downsizing,
and
recession.
However, unlike many private organizations and
the recent layoffs in the public sector, Xers can
find some comfort, although it is not necessarily
important to them, that police departments today
still offer job security because of a deluge in
retirements.

18

Volume 3 Issue 3
April 2003

Smith, Gregory. (2002). Baby boomer versus generation x managing the new
workforce. [On-line] Available: http://www.businessknowhow.com/manage/genx.htm
[2002, November 23]
24
Smith, Gregory. (2002). Baby boomer versus generation x managing the new
workforce. [On-line] Available: http://www.businessknowhow.com/manage/genx.htm
[2002, November 23]
25
Conference Board of Canada. (2002). Developing business leaders for 2010.
Conference Board Inc.
23

12

Generation Xers believe in and trust themselves
above the organization. They believe in
promotions through merit and performance, not
tenure. They do not respond well to
micromanagement, preferring to be given an
objective with the freedom to innovate and
create to meet that objective. Gamonal and
Williams26 contend that generation Xers spurn
micromanaging while at the same time loathe
managers who ‘cave in’ arbitrarily to every
request of the worker, including requests in the
Xers best interest.

not to suggest that leaders must change their
entire leadership style to accommodate the
generation X worker. Much like situational
leadership, leaders must develop a form of
“generational leadership”. Managing the different
generations takes an awareness of what motivates
them and their world view. Not only must police
leaders address managing the generation X
employee, they must also provide a ‘service’ to the
generation X ‘client’.

Smith27 also suggests that leaders of generation
Xers must “take time to be personal”. They must
build relationships with individual workers and
encourage innovation. Personal recognition and job
satisfaction are what drives these workers. They
seek personal growth and knowledge, with the
premier benefit from an organization being
development and training28.

Authors Solomon and Flores29 suggest that true
leadership requires authentic trust. However, the
power and hierarchy paradigm that characterize
traditional workplaces, such as a police
organization, is the antithesis of trust and simply
institutionalized distrust. They draw a distinction
between a power manager, defined by position or
rank, who manages by the way it has always been,
and an authentic leader who is able to lead in a
time of instability and change. The ladder must be
capable of building trust that goes beyond
present comforts and security in the workplace,
to lead in a turbulent, unknown, and adventurous
future (the type of environment Xers thrives in).

Rationale for Transition
Why care about the generational attitudes within
the workplace? The hard, cold reality is that
police organizations cannot afford to ignore the
new workforce. There is little doubt that police
leaders must transition their style in managing
the X generation. Never has the need to attract
qualified recruits into policing been so important.
Not only are police departments competing for a
limited labour force with industry, they are
competing with each other for the same pool of
applicants. Today’s leaders must also address
employees who demand appraisal based on
qualifications, not tenure.
Employee morale and enjoyment at the workplace,
which translates into a more productive
workforce, must be addressed by leaders. This is
26
Gamonal, Paula and Williams, John. (2002). Leading generation x: Getting in touch
with
the
energy.
[On-line]
Available:
http://www.ravenwerks.com/leadership/genx.htm [2002, November 21]
27
Smith, Gregory. (2002). Baby boomer versus generation x managing the new
workforce. [On-line] Available: http://www.businessknowhow.com/manage/genx.htm
[2002, November 23] at para. 12.
28
Smith, Gregory. (2002). How to manage generation x employees. [On-line]
Available: http://www.chartcourse.com/articlegenx.html [2002, November 21]

Volume 3 Issue 3
April 2003

Trust: The Golden Thread

The X generation “disdain…corporate politics and
bureaucracy and don’t trust any institution”30.
Micromanaging, which they loathe, suggests they
cannot be trusted by their managers. In its 2002
report, “Developing business leaders for 2010”,
the Conference Board of Canada notes that
younger
workers
“are
less
trusting
of
organizations, and less willing than past
generations to subordinate their interests to that
of the firm”31.
With this innovative and adventurous generation,
building trust is critical. A leader must make
every effort to build trust at an individual level.
Solomon, Robert C. & Flores, Fernando. (2001). Building trust in business, politics,
relationships, and life. New York, NY.: Oxford University Press.
30
Nagle, Terri. (1999). Coaching generation X. [On-line] Available:
http://www.coachingandmentoring.com/Articles/x’s.html [2002, November 23] at
para. 6.
31
Conference Board of Canada. (2002). Developing business leaders for 2010.
Conference Board Inc. at p.5
29

13

Unlike previous generations, today’s leader cannot
rely on the institution itself providing the
inherent trust past generations were attracted
to. Relationship, not regulation, by giving personal
recognition, one-to-one feedback, and developing
individual workers, is the cornerstone for
constructing the trust necessary to successfully
lead generation X.

Conclusion
The challenge for today’s police leaders is to first
recognize
generational
differences.
By
understanding the differences and, by inference,
the commonalities, leaders will be able to adapt
enough to address the needs of generation X
workers while at the same time retain baby
boomers. Although this may seem a nearly
impossible task to please everyone, by building
trust and a leadership style appreciated by all
generations, it may be attainable. This does not
suggest that addressing generation X issues is
the ultimate solution to effectively lead an
organization. It is a component of providing
leadership to the kind of employees a leader has,
not the kind of employees they once had or wish
they had!

PROACTIVELY PROVIDING
LEGAL AID VIOLATES RIGHT
TO CHOOSE LAWYER
R. v. Feldman, 2003 BCPC 0041
The accused was arrested by a
police officer for assault causing
bodily harm and informed of his
right to counsel. Although he
initially said he did not want to speak to a lawyer,
he changed his mind at the police detachment.
The officer did not give the accused a phone
book, but instead called Legal Aid and a private
call lasting 6 minutes ensued. He was lodged in
cells and later, contrary to the advice of Legal
Aid, provided a recorded statement.

Volume 3 Issue 3
April 2003

During the voire dire to determine the
admissibility of his statement, the accused
argued that the police violated his right to
counsel of choice protected under s.10(b) of the
He contended that the officer
Charter.
prematurely contacted Legal Aid without
adequately explaining that he had the right to
choose counsel. The Crown, on the other hand,
submitted that the accused never asked for a
specific lawyer or took issue with Legal Aid being
provided.
British Columbia Provincial Court Justice Auxier
agreed with the accused. In the Court’s view
“there was no urgency, danger or other matter
which prevented those with custody over the
accused from taking the time to provide him with
the means of contacting counsel.” Although the
officer was acting in good faith in trying to assist
the accused, his right to counsel of choice was
violated. In excluding the statement because it
would affect the fairness of the trial, Justice
Auxier held:
One reason for an accused to speak to the lawyer
of his choice is because of being comfortable with
that lawyer. [The accused] may well have followed
legal advice had he received it from a lawyer he
knew and trusted….[W]e simply don’t know what
the accused would have done had his right to
counsel of his choice not been breached.
Complete case available at www.provincialcourt.bc.ca

SPECIFIC LAWYER NOT
REQUESTED: NO s.10(b)
CHARTER BREACH
R. v. Mirkovic,
[2003] O.J. No. 367 (OntCJ)

A tow truck operator observed
the accused driving a damaged
vehicle on a flat tire at a very
slow rate of speed on the
express lanes of a highway. The tow operator
activated his flashing lights and the accused
stopped his vehicle. After noting a smell of

14

alcohol on the accused’s breath, vomit on his
clothing, and that he appeared physically ill, the
tow operator called police.
A police officer attended, observed physical signs
of impairment, and arrested the accused. At the
police station the accused stated he wanted to
talk to a lawyer, but did not request to speak with
anyone specific. After speaking in private to duty
counsel for 5 minutes, a matter to which he did
not object, the accused provided breath samples
in excess of the legal limit.
During a voire dire the accused alleged, among
other Charter motions, that he was denied
counsel of his choice. Justice Ritchie of the
Ontario Court of Justice accepted the evidence
of the officer that the accused did not ask to
speak to a particular lawyer. As such, there was
no s.10(b) violation and the application was
dismissed. The accused was convicted.

‘JUDGE SHOPPING’ RENDERS
WARRANT INVALID
R. v. Chan & Cheung,
[2003] O.J. No. 188 (OntSCJ)
Following a winter storm, Ontario
Hydro One employees were
called by the accused Chan to
repair a transformer that
resulted in a power failure at a rural resort
property. They found a frozen fuse and one of
the linesmen went into a nearby open shed to find
a screwdriver. He did not see any tools, but went
further into the building and opened a closed
interior door where he found some plants. After
completing repairs the linesman went to a long
building with many wires running into it to see if
the power was back on. He entered this building
after calling “hello” and knocking. Again he found
more plants, taking a leaf from the floor.
This information was provided to the police and a
telewarrant application was made to search the
shed and long building for marihuana, but was
denied by the Justice of the Peace because the

Volume 3 Issue 3
April 2003

linesmen were trespassing when they made the
observations. When excising these observations
from the warrant, there were insufficient
grounds remaining. A second in-person warrant
application was successful in front of a different
Justice of the Peace. This warrant disclosed the
initial refusal and also contained a number of
paragraphs setting out a legal argument in support
of the application. As a consequence of the
search, police found almost 3,700 marihuana
plants and $100,000 in electrical equipment. The
accused sought to have the evidence excluded
because the hydro employees made the marihuana
discovery during a warrantless search and that
the police were “judge shopping” when they
applied for and received the second warrant.

Was the Charter Engaged?
The Charter only applies to government agents
and does not apply to private citizens, unless they
were acting on behalf of the state or exercising
statutorily delegated governmental powers. At
the preliminary hearing, the linesmen testified
that they entered the shed to look for a
screwdriver and/or to see if the power was
flowing even though they did not have the
authority to do so. Although Justice Hennessy of
the Ontario Superior Court of Justice recognized
that Hydro One was created by statute and
included a right of entry onto land to repair
transmission and distribution equipment, the
“linesmen were not acting in furtherance of
government policy when they entered the sheds,
since they were neither state agents nor pursuing
statutorily delegated governmental activity.”
The linesmen were invited onto the property when
the call was made to investigate the power and
distribution system and they had the statutory
authority to repair the transmitter. However,
they were not invited onto the property to look
into buildings for tools or to check power flow.
Nor were they in the shed to gather information
or evidence for a prosecution. Thus, their conduct
did not engage Charter scrutiny because when
they entered the shed “they exceeded any

15

authority given by statute or by invitation of the
occupier as a result of the service call”.

Judge Shopping
Both informations to obtain the warrants were
substantially the same facts. The only
differences were that the second warrant
outlined the prior refusal and several paragraphs
presenting a legal argument why the warrant
should be issued. Justice Hennessey ruled the
second warrant invalid because the decision of
the first Justice of the Peace was final. There
were no new or additional facts added to the
warrant, only legal arguments presented to help
the second Justice of the Peace exercise his
discretion.
The second Justice of the peace had no
jurisdiction to review or overrule the judicial
decision made by a colleague on the same facts.
He ruled that “the decision of a judicial officer
from one court is final and binding unless and until
it has been overturned by a higher court.” As
Justice Hennessey noted, “What would stop a
police officer from bringing the same application
to successive justices, asking each to review the
decision of the other on the same facts?”. In the
Court’s view, if this were allowed the confidence
enjoyed by the judicial system would be
undermined.

Admissibility
Since the second warrant was invalid, the search
carried out by the police was warrantless and a
violation of the accused’s s.8 Charter right to be
secure against unreasonable search and seizure.
However, the evidence was ruled admissible under
s.24(2). The admission of the real, nonconscriptive evidence in these serious charges
found in non-residential property by police acting
on a facially valid warrant obtained would not
bring the administration of justice into disrepute.
The accused’s applications for exclusion were
dismissed.

Volume 3 Issue 3
April 2003

QUICK & DRAMATIC POLICE
ENTRY REASONABLE
R. v. Dinh, 2002 BCPC 0542
Six police officers executed a
residential
electricity
theft
search warrant. The police,
seeing the accused inside the
house, loudly knocked several times on the front
door while yelling, “police, search warrant”.
However, they received no response. As a result,
a battering ram was used and police forced entry
into the home with their firearms drawn. The
police cleared the house and found the accused
and her infant child in a bedroom near the front
door. The hydro by-pass was located in a wall in
the kitchen after a small hole was made in the
gyproc. Also found in the house was a large
marihuana grow operation, which was subsequently
seized under a second search warrant. The
accused was arrested, advised of her Charter
rights, and allowed to call and make arrangements
for the care of her child. Following transport to
the police station, she was provided access to
counsel.
During the voire dire, the accused challenged the
admissibility of the evidence by alleging that her
Charter rights were violated because the police
violently entered her home and damaged it during
the search. She also submitted that her arrest
was not lawful because of the manner of police
entry and that she was denied the right to
counsel until she was at the police station.

Entry
British Columbia Provincial Court Justice Gove
found the entry reasonable in all of the
circumstances. The police testified that they
expected to find a marihuana grow operation once
they entered. Furthermore, even though there
was no danger expected, the use of the battering
ram was common practice when there was no
response to knocking. The officers also testified
about safety concerns when entering a home

16

containing a marihuana grow operation. The police
do not want to stand on the door stoop for more
than a few seconds because they fear the use of
weapons or booby traps to protect the crops from
theft. As well, trying door knobs may result in
electrocution. Justice Gove found that “any
damage done was directly related to the entry,
finding the hydro by-pass, and removing the
marihuana grow operation.”

Arrest
The arrest was also lawful. Justice Gove stated:
I am also not satisfied that the manner in which
the house was entered, although it may have
caused some fear in the mind of the accused, in
anyway affected the lawfulness of the search and
her arrest. The police officers were very candid
that they intended to have a dramatic entry in
order to catch those inside off guard. Once there
was not a response to the knock on the door and
the yelling "police, search warrant" the officers
believed, and I think reasonably so, that their
safety and the safety of the occupants would be
best insured by a quick and somewhat dramatic
entry.

Counsel
Justice Gove did however, find that the police
breached the accused’s s.10(b) Charter right to
counsel when they did not provide her with the
opportunity to contact counsel at her home
stating:
The police violated the accused's s.10(b) rights
when [the officer] failed to allow her an
opportunity to telephone counsel shortly after her
arrest. Once the police "cleared the house" and
had the situation under control, there was no
reason that she should not have been allowed to
use the telephone while still at her home. There
were no issues of urgency that would have
precluded her from making such a telephone call,
and although she may not have been able to make a
telephone call in private, that is not an issue in
which I can rule, as she was not afforded an
opportunity to at least attempt a telephone call.
She may have waived any right to privacy, under all

Volume 3 Issue 3
April 2003

the circumstances … I am satisfied there was a
breach of s.10(b) rights. [references omitted]

Admissibility
Despite the s.10(b) violation, the evidence was
ruled admissible for trial. There was no nexus
between the breach and the discovery of the
marihuana and the violation was not serious; it
lasted only a matter of minutes until she
contacted counsel at the detachment.
Complete case available at www.provincialcourt.bc.ca

ARTICULABLE CAUSE NOT
NECESSARY FOR SOBRIETY
VEHICLE STOP
R. v. Sothmann, 2002 SKQB 682
A uniformed police officer was
suspicious that the accused was
a possible impaired driver and
stopped him after he was caught
on radar driving approximately 20 km/h below the
100 km/h speed limit. As a result of the stop, the
accused submitted to a roadside screening
demand and failed. He was advised of his right to
counsel and taken to the police station for a
breathalyser test. Once there, he was asked if he
wished to contact counsel, but declined. He then
provided breath samples in excess of the legal
limit and was subsequently convicted in
Saskatchewan Provincial Court of driving while
over of 80mg%. The accused appealed to the
Saskatchewan Court of Queen’s Bench arguing, in
part, that he was arbitrarily detained contrary to
s.9 of the Charter because the officer did not
have an articulable cause to stop him.
Queen’s Bench Justice Laing dismissed the appeal.
In his view, “articulable cause only applies when
the motorist is being stopped for a non-highwaytraffic…reason.” In this case, the officer stopped
the accused for a lawful highway traffic reason
(sobriety). Justice Laing stated:

17

If a uniformed patrol officer whose duties include
traffic patrol can randomly stop (meaning for no
reason at all) a motor vehicle to check its licence,
its mechanical condition, or the sobriety of the
driver, then it follows that if something about the
driving of the vehicle causes the officer to
randomly stop it, that something can be anything,
including intuition, as long as the purpose is to
check the licence, the sobriety of the driver or
any other highway traffic reason. It is not
necessary that the motorist first commit a driving
infraction or irregularity before the stop is lawful.
As the cases referred to above note, the random
stopping of vehicles is directed at the prevention
and deterrent aspects of highway traffic law
enforcement.
Complete case available at www.conlii.org

FAILURE TO ENQUIRE ABOUT
DESIRE TO CALL LAWYER NOT
FATAL
R. v. Keel & York, 2003 BCPC 0077
A rural officer on patrol in the
mid-afternoon observed a pickup truck being driven by two
males without shoulder harness
seatbelts. He also noted ropes in the back of the
pick-up used for slinging shakes. This was unusual
in the officer’s view because shake block cutters
traveled the accused’s direction in the morning,
not mid-afternoon. The officer stopped the pickup to check the seatbelts and the sling ropes. The
occupants exited the vehicle and the officer
asked for and was provided a driver’s licence.
The officer told the driver Keel why he was
stopped and began to question him about the
contents in the rear of the pick-up; sling ropes,
bags of dirt, manure, shovels, several buckets,
and a tarp. The truck was an older model and was
not equipped with shoulder belts; it had only lap
belts. The officer asked what was under the tarp
and was told boxes with dirt. After the officer
asked to see the dirt, the accused Keel opened
the corner on one of the boxes. The officer
observed marihuana, told the accused to close the

Volume 3 Issue 3
April 2003

box, and advised him he was being detained for
investigative purposes related to possession of a
controlled substance.
Because the stop was in an isolated and remote
area the officer was unable to make contact with
his dispatcher. As directed, the accused followed
him in their pick-up to a location where the radio
would work. The officer called for back-up and
read Keel a Charter warning from a card.
Although he asked Keel if he understood the
warning, the officer did not ask him if wished to
call a lawyer since he did not have a telephone
readily available. He then proceeded to question
him about the contents of the box in the back of
the pickup.
Keel admitted to possessing the marihuana plants
and that he was going to plant them in the forest.
The officer then provided a Charter warning to
the passenger York who stated Keel owned the
plants and that they were going into the bush
with them. Other officers arrived on scene and
the two accused were taken back to the
detachment and the marihuana was seized. The
accused argued that his right to counsel under s.
10 and his right to be secure against unreasonable
search and seizure under s.8 of the Charter were
breached.

Right to Counsel
The accused submitted that the s.10 violation
stemmed from the fact that the officer failed to
ask, “Did you want to contact a lawyer?” In their
view, the police are obliged to ask this question.
The Crown, on the other hand, submitted that
once the police have advised an accused of their
right to counsel there are no additional duties
triggered unless they express a desire to
exercise the right. The Crown further contended
that the accused must establish that they were
denied an opportunity to contact counsel. In
reluctantly agreeing with the Crown, British
Columbia Provincial Court Justice Doherty stated:
The police have developed a protocol that requires
them to ask a detained or arrested person whether

18

they want to contact counsel after they have
ensured the person understands their rights. It
would be a retrograde step in the development of
civil liberties in this country should police abandon
what has become, for all intents and purposes,
what they perceive to be their duty to ask this
crucial question, "Do you want to contact a
lawyer?"
Still, the law would seem to be that the inquiry is
not mandatory and that all that is required is for
police to inform the person of their rights. The
onus would seem to be on the accused to assert
that right to consult counsel, and the onus is on
the accused who asserts he was deprived of an
opportunity to do so.
In the case at bar, considering the remote location
at which the police and the defendants found
themselves, there was no realistic opportunity for
the defendants to contact counsel, even if the
question "Do you want to contact counsel?" had
been asked. The troublesome aspect of this case is
that the police officer has given evidence that he
would have stopped asking questions of the
defendants had this question been asked and been
responded to in the affirmative. By not asking the
question in the first place he avoided having to halt
his questioning.

The Search
Justice Doherty also concluded that there was no
s.8 breach because the officer had, at minimum,
an articulable cause to justify the search. The
Court held:
There is little doubt that the police officer had
good reason to stop the pickup truck to investigate
a possible seatbelt infraction, and I have no
difficulty in ruling that the stop was legal. Once
the vehicle was stopped, the police officer's
suspicion that the defendants might be going into
the forest to plant marihuana was supported by
certain of his observations regarding the bags of
dirt, manure, and shovel.
[The officer] asked Mr. Keel if he could examine
the content of the boxes or be shown the contents
in the back of the pickup. Mr. Keel was under no
obligation or compulsion to open the box for the
constable to view. I agree with the submissions of

Volume 3 Issue 3
April 2003

the Crown that even if it were determined that
the officer did not have reasonable and probable
grounds to search, he had, at the very least,
articulable cause.

In the end, no Charter breaches were found and
the evidence was admissible on charges of
unlawfully possessing a controlled substance.
Complete case available at www.provincialcourt.bc.ca

“IN SERVICE: 10-8”
e-LETTERS TO THE EDITOR
The “In Service: 10-8”
newsletter would like to
share
some
of
our
readers’ comments about
the
publication.
We
appreciate the kind words
we have received thus far and look forward to
future editions:
***************

“I was forwarded a copy of your newsletter by a

co-worker and must say I was impressed with the
way it was delivered. I especially like the fact
that the issues revolve around street level
activity, things I deal with daily. I found both
issues I read to be more than useful and have
referred to them twice”. Police Constable, RCMP
New Brunswick
***************

“…I happened to come across your In Service: 10-

8 newsletter. I just wanted to let you know that
you put together a great collection of relevant
operational case laws. I share your newsletter
with my recruit and other members who care
about their work”. Police Constable, RCMP
British Columbia
***************

“Your analysis of recent cases was pointed out to
me as a great way to keep up on case law - great
job”. Police Inspector, British Columbia
***************

“Really enjoy the newsletter! Would like to get on
the mailing list…”. Police Constable, RCMP British
Columbia

19

“I (and our team) find the newsletter very

informative and [it] is often referred to during
discussions/debates with some of our more junior
members”. Police Constable, RCMP British
Columbia
***************

“I have read the newsletters from the first issue

through and I thoroughly enjoy it and find it a
Police
valuable
source
for
information”.
Constable, RCMP British Columbia
***************

“I hope that…10-8 will continue as I find it very
informative and useful. Keep up the good work”.
Investigator, Canada Customs and Revenue
Agency
***************

“Everybody on my shift looks forward to reading
it. Great job!” Police Constable, British Columbia
***************

“I have read it and found it to be most
informative.” Police Corporal, RCMP British
Columbia
***************

“[J]ust wanted to tell you that after 1 1/2 years

your paper has just got better and better. I use
your paper regularly to identify current case law
and to keep my own members informed of judicial
changes in the way we do our business. Keep up
the good work!!” Police Sergeant, Manitoba
***************

“Thanks for the In-Service 10-8 Newsletter. It is
greatly appreciated by the office”. Crown
Prosecutor, British Columbia
***************

“It's after midnight and I am reading your

newsletter and enjoying it! I just wanted to drop
you a line and thank you for putting it out, it's
great to have a place to keep up with the recent
decisions…” Police Constable, British Columbia
***************

“Thank you very much for the newsletters. They
are very informative and useful.” Supreme Court
Justice, British Columbia
***************

“I have just received the latest edition of the …

newsletter. I just wanted you to know how much
the newsletter is appreciated by myself and
others around our office. I always ensure that all
members of my unit get a copy and I keep mine
handy. Just this morning as I was distributing it,

Volume 3 Issue 3
April 2003

the members comments were "Thanks, these are
great", as I put it in their 'In Basket'. I am
frequently referring to the past editions
regarding issues that arise, and am very happy to
have the reference material.” Police Constable,
British Columbia
***************

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thoroughly enjoyed reading it.” Police Constable,
Saskatchewan
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the web and have found it to be a most useful
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JIBC OFFERS CERTIFICATE IN
FORENSIC TRAFFIC SCIENCES
The Justice Institute of
British Columbia (JIBC), in
partnership
with
the
Insurance
Corporation
of
British Columbia, is pleased to
offer a Certificate in Forensic
Traffic Sciences. This Certificate prepares
graduates to enter the field with a sound
educational base and a solid practical foundation,
to advance within their current careers, or to
change careers. This Certificate is only available
at the Police Academy. The 30 credit program is
the “first year” of an applied program of study.
Future plans include a Diploma in Forensic Traffic
Sciences, which will advance the skills and
knowledge of students to “second year” level with
the completion of the necessary credits. The
Applied Degree approach to post secondary
education is broad and practicaldelivering integrated technical skills
with substantial applied content and
the completion of 120 hours. An
applied degree offers:

20

•
•
•

valuable
applied
experience
before
graduation;
the skill and knowledge employers want in
Canada and around the world; and
more
opportunities
for
rapid
career
advancement.

What is forensic Traffic Sciences?
Forensic Traffic Sciences is the study of traffic
unit collisions involving the investigation, analysis,
and reconstruction of the incident. The JIBC
Certificate in Forensic Traffic Sciences now
offers working professionals a unique opportunity
to learn theory and apply learning while acquiring
significant
academic
recognition.
Working
practitioners in the program include law
enforcement personnel as well as other
professionals engaged in public safety:
•
•
•
•
•
•
•

insurance investigators;
motor vehicle and transit fleet supervisors;
railway police agencies;
workers compensation professionals;
military investigators;
legal and medical practitioners; and
highway safety engineers.

The opportunities for work include:
•
•
•
•

investigating the scene of a traffic unit(s)
collision;
managing an incident when first on scene;
identifying,
collecting,
recording,
and
interpreting evidence; and
planning and conducting interviews and
analyzing statements.

This program prepares students to continue their
study to a diploma or degree level.

How
is
the
Delivered?

Certificate

Program

Six core courses (24 credits) are offered in
concentrated, one-week modules, with prereadings and post-course assignments at the
JIBC. In addition, two liberal arts courses (6

Volume 3 Issue 3
April 2003

credits) are required to complete the 30 credit
certificate.

Core Courses (24 credits)
On-scene Collision Investigation (POLFTS100
-3 credits) Learning how to manage a collision
scene is the primary intent of this course.
Students learn the principles and practices of
selecting and using appropriate tools and
measurements, identifying, photographing, and
interpreting physical evidence at the scene.
Interview
Techniques
and
Statement
Analysis (POLFTS110-3 credits) Explores the

human elements of a collision. Through interviews
and statement analysis students will learn how to
retrieve vital information to enhance the
interview process, demonstrate mastery in verbal
and non-verbal interrogation, and analysis
techniques.

Hit and Run Investigations (POLFTS120-3

credits) Conducting a comprehensive hit and run
investigation is the focal point of learning in this
course. Students learn to develop search
patterns, coordinate investigation teams, and
apply the principles of damage profiles and
collision dynamics.

Forensic Photography Techniques (POLFTS

130-3 credits) Applying forensic photographic
skills to the investigation of traffic unit(s)
collision is the focus of this challenging module.
Students will learn how to use SLR, digital, and
video cameras, and apply the theory of forensic
photography in order to secure evidential
photographs under varied conditions.

Impaired Driving Detection (POLFTS140-3

credits) Focuses on the scientific basis of
sobriety testing approved and recommended by
the IACP, developed by the Federal U.S.
Department of Transportation and the National
Highway Traffic Safety Administration. Includes
legal study, evidence gathering, and decision
making. Topics include principles of psycho-

21

physical testing and an introduction (8 hrs) to
drugs that impair.

Commercial
Vehicle
Assessment
and
Enforcement (POLFTS150-3 credits) Provides

students with knowledge to recognize unsafe
commercial transport units and to take action.
Students explore topics including driver fitness
and qualifications, vehicle inspection, and
essential investigative criteria.

Basic

Collision
Analysis (POLFTS200-6
credits) Prerequisite POLFTS100. Conducting indepth technical collision investigations through
on-site analytical skills, students learn to collect
evidence, identify vehicular restraint systems,
conduct damage analysis, and manage and
interpret the collection of pertinent data.

Liberal Arts Courses (6 credits)
Foundation of Communication and Conflict
Resolution (3 credits) Offered by the Centre for

Conflict Resolution at the JIBC. This course will
be scheduled especially for students who will be
notified of dates and times. Additionally, an
English 100 course (first year College/University)
is necessary. This course may be taken at any
recognized educational institution and the credits
transferred to the certificate program.

Transfer Credits and PLAR
Students may apply to have courses from other
institutions -- including police colleges, military
colleges, or in-house training -- applied to this
program. Students who have worked in the field
and have met the learning objectives of core
courses may apply to have their learning
recognized
through
the
Prior
Learning
Assessment Recognition (PLAR) process.

Course Fees
Course fees vary depending on the cost of the
individual course materials, facilities, and
equipment. Check the course description for
details.

Volume 3 Issue 3
April 2003

Admission Requirements
Completion of Mathematics Grade 12 and Physics
Grade 11 is recommended for some courses, but
not required. Students do not need to be enrolled
in the Certificate Program in order to take
courses. Once students have completed 15 credits
however, they are encouraged to apply.
Applications are available through the Program
Coordinator and mature students who have not
completed Grade 12 may be admitted to the
program under some circumstances.
For information on this program call 604-5285753 or visit our web page at www.jibc.bc.ca

TAX LAW & LAW ENFORCEMENT:
WORKING WITH THE CCRA
Dave Quail32

Investigations are one of
many enforcement activities
used by the Canada Customs
& Revenue Agency (CCRA) to
preserve public trust in the
fairness and integrity of the
self-assessment system by
ensuring that the provisions of the legislation
administered by the CCRA are honoured by all
taxpayers, registrants, importers and exporters,
and that they pay their fair share of taxes and
duties and receive their proper entitlements. The
Income Tax Act, Excise Tax Act, Customs Act
and the other acts administered are regulatory
statutes that provide for criminal sanctions.
As with all regimes in the developed world,
criminal sanctions are provided to ensure
compliance by deterring fraudulent behavior. The
overall mandate of the Investigations Program is
to enhance compliance levels with the various acts
administered through effective enforcement and,

32

Dave Quail is with the Investigations Division of Canada Customs and Revenue
Agency and can be contacted at 250-363-8736 or by e-mail at Dave.Quail@ccraadrc.gc.ca

22

gathering evidence for criminal investigations,
including grand jury and multi-agency
investigations; and

thereby, contribute to the public trust, fairness,
and integrity of the self-assessment system.
The Investigations Division operates 3 main
programs for the CCRA:
•
•
•

•

the Leads and Assistance Program (LAP);
the Special Enforcement Program (SEP);
and
the Criminal Investigations Program (CIP).

This article will focus on LAP & SEP, as they are
more relevant to police organizations. As well, the
mandate of CIP is also discussed.

Leads and Assistance Program (LAP)
Mandate
The LAP mandate is to coordinate the informant
leads received and to provide assistance, upon
request, to other programs, domestic and foreign
tax and customs authorities, and other
enforcement agencies.

Program Objectives
The LAP program objectives are summarized as
follows:
•

•

To control and screen leads received from
informants relating to alleged non-compliance
under the revenue acts administered, refer
these leads to the appropriate area for
action, and report on their disposition. These
leads are reviewed, databases are searched
for information, and a decision based on
potential tax at risk is made to determine the
appropriate action. Leads are recorded in a
database and those leads are forwarded to
other areas for action and are followed up for
results. These activities are handled by
Investigations because of their expertise in
investigative matters and the need to protect
the information and the identity of
informants;
To control and process, on a priority basis,
international requests for assistance in

Volume 3 Issue 3
April 2003

To assist other functions and departments as
required with administrative prosecutions and
requirements for information. The assistance
provided includes advice and guidance to
Audit, Collections and International Tax,
handling Criminal Code access orders, and
processing requests for information from
other government departments including
Human Resource Development.

Confidentiality of Income Tax (ITA) &
Excise Tax (ETA) Information
Subsection 241(1) of the ITA and 295(2) of the
ETA prohibit an official, including officers of the
CCRA, from communicating any information to or
allowing access to any books and records obtained
under these acts to any person. Subsection 241(2)
of the ITA and 295(3) of the ETA prohibit an
official from giving evidence or producing any
books or records obtained under these acts, in
any legal proceedings. All taxpayer information is
also protected from 3rd parties.
However s.241(3) ITA and s.295(4) ETA allows
for information to be released to Law
Enforcement
Agencies
under
specific
circumstances.
Subsection 241(3) ITA and
s.295(4) ETA provide an exception to s.241(1) &
(2) ITA and s.295(2) & (3) ETA, with respect to
the production of information in the possession of
the CCRA. When criminal proceedings related to
the administration or enforcement of the acts
administered by the CCRA have commenced by
charge, CCRA policy regarding the production of
information in their possession to the police is as
follows:
•

The police or Crown counsel must provide a
copy of the charges and a letter advising that
charges have been laid. As well, the letter
must set out what information is requested
and assurances that the information
requested is relevant to the charges laid.

23

•

Information will not be passed where certain
named charges have been laid and the letter
indicates or it is believed that the
information requested is in respect of a
different investigation for which charges
have not yet been laid.

and has received or is likely to receive a term of
imprisonment of two years or more. Exceptions to
this policy would be when the police request that
we proceed with tax charges to increase the
chances of convicting a high-profile member of
organized crime.

Once it is determined that the requested
information may be provided, it is not
required that CCRA have a subpoena in hand
before providing the information to the police
or Crown counsel. This will allow the
requesting agency prepare for trial. However,
a subpoena must be received prior to
producing the information in court.

Originally, the program only enforced the ITA in
its attack on crime. However, with the
consolidation of Tax, GST and Customs, SEP is
now also enforcing the other acts where
appropriate.

This policy is also applicable to s.107 and 108 of
the Customs Act.

Program Objectives
The overall objectives of SEP are to:
•

Minimize the accumulation
of unreported illicit wealth
amassed
by
persons
engaged
in
illegal
activities, thereby causing
disruption to organized crime, stem the
infiltration of legitimate business by criminal
elements, and reduce the activities of
organized crime on society.

•

Forge strategic alliances and partnerships
with law enforcement agencies with the view
to improve CCRA efficiency and expand the
impact of CCRA actions on organized criminal
activities including areas outside direct
taxation, such as proceeds of crime and the
proposed money laundering legislation.

Special Enforcement Program (SEP)
Mandate
The SEP mandate is to combat, with the
assistance and support of the Office of the
Solicitor General represented by the Royal
Canadian Mounted Police (RCMP) and other
external partners, organized crime through the
enforcement of the various acts that the CCRA
administers. In 1972, the Government of Canada
directed that the Department of National
Revenue and Taxation, with the assistance and
support of the RCMP, conduct a continuing
program of tax audits and investigations into the
affairs of members of organized crime.
These individuals are usually charged by police
agencies for other major offences such as drug
trafficking. The fact that they are also
prosecuted for tax charges does not usually
result in greater sentences/fines. In many
instances, the prison term received on the tax
charges is served concurrently with the jail
sentence related to the other charges. In view of
this, Investigations adopted a policy that no
criminal investigation will normally be conducted in
cases where an individual has been or will be
charged by a police agency for a criminal offence

Volume 3 Issue 3
April 2003

The main motivation of criminal organizations is
the attainment of profits. Governments of most
countries have realized that to combat organized
crime, ways have to be found to control the
wealth generated by their activities. The
enforcement of the laws administered by the
CCRA is one effective way to control such wealth.
Illegal activities of organized crime are usually
viewed as pertaining to violent predatory crimes
such as drug trafficking, robberies, and
prostitution. However organized crime is also
extensively involved in other types of non-violent
crime such as stock fraud, investment fraud,

24

international
telemarketing
fraud,
money
laundering, corruption of public officials, and tax,
GST, and Customs fraud. The Program targets all
those illegal activities that generate profits.
It may be viewed that the attack on organized
crime and its wealth is a policing issue and that
the proceeds of crime legislation enacted by
government gives police the necessary tools to
attack criminally obtained wealth. However, the
proceed of crime laws should not be construed as
a replacement for the SEP program. There are
several distinct advantages enjoyed by SEP. For
example, it is not necessary to separate
legitimate from illegitimate income.
The burden of proof is less stringent within the
context of a revenue civil re-assessment than
with criminal proceedings under the proceeds of
crime legislation. Also, in order for proceeds of
crime forfeitures to take place, there must be a
conviction of a substantive offence. Frequently,
this is not possible and provisions of the ITA and
ETA become more effective and often the only
means of minimizing the accumulation of illicit
wealth. SEP continues to play an important role in
government actions against persons involved in
organized criminal activities.
The above objectives are accomplished through
the following activities:
Identifying potential targets and obtaining
information on the scope of their illegal
activities. Since the CCRA has no intelligence
per say on criminal organizations and its
members, it relies on police agencies to
provide targets, their involvement in crime,
and financial data such as assets and lifestyle.
The CCRA generally accepts the police
evaluation of a problem in the criminal
economy from their perspective and work with
them to enforce revenue laws. Therefore, if
police are placing emphasis on motorcycle
gangs or the Italian Mafia, these will
invariably be the principal targets referred to
the program.

Volume 3 Issue 3
April 2003

At the inception of the program in 1972, all
referrals came from the RCMP. Since then,
through
marketing
efforts,
other
enforcement agencies have become aware of
the Program. The RCMP accounts for 45% of
the referrals to SEP; 55% comes from other
agencies such as the provincial police, local
police, insurance investigators and stock
exchange security, to mention a few.
Pursuing
strategic
alliances
with
law
enforcement agencies where the goal is to
remove the accumulation of unreported illicit
wealth.
Investigations
have
seconded
investigators to the RCMP Integrated
Proceeds of Crime units (IPOC) across
Canada.
The main roles of Revenue Canada personnel
on the IPOC units are liaison between the two
organizations and the identification of cases
offering tax re-assessment potential for
timely referral to the SEP units in CCRA’s Tax
Services Offices. Another key role is to
provide forensic accounting expertise to the
other members of the IPOC units. Both
groups operate effectively while ensuring that
the confidentiality provisions of the acts
administered are observed.
Working with the Anti-evasion Division and
other departments in developing a proposal
for the establishment of a Mandatory
Suspicious Transaction Reporting system to
identify
and
deter
money-laundering
practices.
Requesting from individuals and corporations
tax returns and/or statements of assets and
liabilities. Persons involved in illegal activities
have normally no desire to participate in a
legal system. In an attempt to hide profits
earned and their assets, they normally do not
file tax returns or keep books and records.
Therefore, one of the first enforcement
actions initiated is to require them to file tax
returns. In situations where there is
insufficient financial data regarding an

25

individual’s assets and lifestyle, the CCRA
requires them to produce statements setting
out their assets, liabilities, and personal
expenses. These are used to establish the
potential
for
further
compliance
or
enforcement action. Should the persons fail
to file the returns and/or the statements,
they may be prosecuted. Fines range from
$1,000 to $25,000 and may include a jail term
not exceeding 12 months in addition to being
ordered by a court to file these returns
and/or statements.
Conducting audits on files showing good
potential for tax recoveries. Since most
individuals do not keep records of their illegal
activities, the audits are usually conducted by
indirect methods, principally the net worth
method. Re-assessments issued include taxes,
interest, and civil penalties.
Conducting investigations of significant cases
where there are indications of tax fraud.
Where cases of suspected tax fraud are
uncovered, the file is referred to the Criminal
Investigations
Program
(CIP)
where
investigations are performed and referrals
are made to the Department of Justice for
prosecution. Jail sentences are often sought
in addition to monetary fines.

Criminal Investigations Program (CIP)
The CIP mandate is to conduct criminal
investigations into suspected cases of evasion or
fraud with respect to the various acts
administered and to prosecute and publicize each
case where sufficient evidence is obtained to
support conviction for deliberate or wilful evasion
with respect to these acts. The major acts
administered include the Income Tax Act, the
Excise Tax Act, the Excise Act, the Customs Act,
the Customs Tariff Act, and the Export and
Import Permits Act.
Editor’s Comments: “In Service: 10-8” would like
to thank Canada Customs and Revenue Agency
Investigator Dan Quail for this submission.

Volume 3 Issue 3
April 2003

OUT OF PROVINCE
INTERCEPTION VALID
WITHOUT HOME COURT
BACKING
R. v. Chang & Kullman,
(2003) Docket:C31682-C31401 (OntCA)
The police in Quebec were
investigating the bid-rigging of
municipal construction contracts
involving a city official and
subsequently obtained a wiretap authorization
from the Superior Court of Quebec to intercept
the telephone conversations of the city official
and another involved person. As a result of these
wiretaps, the police were then led to further
investigate an alleged sale of false visas for entry
into Canada. Two Ontario residents were
identified as also being involved in the discussions
over the fraudulent visas. Quebec police applied
for
and
received
two
further
wiretap
authorizations; one to renew the authorization
relating to the bid-rigging and the second in
relation to the immigration investigation. The
Ontario RCMP assisted and they obtained the
cooperation of the telephone company in Ontario
in setting up the wiretaps on the targets. These
wiretaps under the Quebec authorization resulted
in information pertaining to various illegal
immigration schemes.
The Ontario RCMP subsequently applied for and
received their own authorization in the Ontario
Superior Court of Justice to intercept
communications largely on information obtained
from the Quebec immigration investigation
wiretap. This Ontario wiretap authorization
included, for the first time, discussions involving
the accused Chang. Ontario RCMP received a
further authorization naming many of the same
targets but added five others, including Chang.
Under this new authorization, telephone calls
made by the accused Kullman were also
intercepted.

26

Although objected to at trial, the intercepted
telephone calls were admitted into evidence and
the accused Chang was charged with conspiracy to
assist a named person into Canada illegally while
both Chang and Kullman were charged with
conspiracy to assist unnamed persons to enter
Canada illegally. Evidence at trial determined that
Chang, an immigration officer, was going to allow a
young woman (destined to be a prostitute) to
arrive on a flight from Thailand to Toronto and
pass through his inspection without enquiries. For
his involvement, Chang would receive a $1000
bribe. Kullman, also an Immigration officer, was
also overheard to be involved in the sale of blank
visitor visas. The two accused, sitting without a
jury, were convicted partially on the intercepted
conversations, but appealed to the Ontario Court
of Appeal. They argued, among other reasons,
that the Quebec authorizations were unlawful and
therefore the Ontario police could not use them
to support their authorization. Furthermore, they
contended that the police failed to comply with
s.188.1(2) of the Criminal Code and did not have
the Quebec authorizations backed by an Ontario
Court.

Using the Quebec Authorizations
The accused submitted that the Ontario police
used information obtained from the Quebec
authorizations, which in their view were not lawful
because
the
police
failed
to
establish
investigative necessity as required under
s.186(1)(b) of the Code. However, the trial judge
limited her review only to the facial validity of
the authorizations and did not review the
sufficiency of the evidence to support the
wiretap. In other words, she found that the
Quebec superior judge who made the order had
the jurisdiction to do so and there was no need to
go any further and review whether investigative
necessity had been established. It was this
failure to go beneath the face of the warrant
itself and examine the evidence that the accused
argued was an error. However, the Ontario Court
of Appeal disagreed. The Court held:

Volume 3 Issue 3
April 2003

In our view, the trial judge quite properly
concluded that once an Ontario judge is satisfied
that the Quebec judge had jurisdiction to make
the order, and that the steps that were taken to
execute it were lawful, then that is the end of the
Ontario court's inquiry.

And further:
We are also of the view that for an Ontario
superior court judge in these circumstances to
review the sufficiency of the evidence underlying
the authorization of another province's superior
court would offend the general rule that a court
order is immune from collateral attack.

Extra-provincial execution of wiretaps
Section 188.1(2) of the Code states that an
authorization given in one province may be
confirmed by a judge in another province and then
shall be of full force. The trial judge found the
language used in this section (“may”) was
permissive, but not mandatory. Thus a
confirmation order in a different province is not
compulsory. The Ontario Court of Appeal agreed
and held that “if Parliament had intended to
require a confirmation order in every situation of
extra-provincial
execution
of
wiretap
authorizations, it could have done so in simple and
straightforward language.” Thus, this ground of
appeal was rejected.
The appeals were dismissed.
Complete case available at www.ontariocourts.on.ca

Note-able Traffic Quotes
“No Sir, I got my quota yesterday. These tickets
are just for fun.”
“Yes, I can give you a warning. Speed again and I’ll
write you another ticket.”
“You already got a break. It’s the pedal next to
the accelerator.”
“The answer to the next question will determine if
you are drunk. Was Mickey Mouse a cat or a dog.”

27

ONLY FACTORS USED BY
OFFICER MAY BE CONSIDERED
IN ASSESSING ARTICULABLE
CAUSE
R. v. Coles, 2003 PESCAD 3
A police officer stopped the
accused with the intent to issue
a warning after he had followed
him drive at a speed well below
the speed limit, signal well in
advance of his turn, and proceed through a
crosswalk just as a pedestrian entered it. As a
result of interacting with the driver, the officer
formed the opinion he had sufficient grounds to
make a demand for breath samples. Subsequent
samples provided were in excess of the 80mg%
limit. At his trial on impaired driving charges, the
judge found the accused’s detention arbitrary and
thus contrary to s.9 of the Charter because he
was stopped without authorization or reasonable
cause. As a consequence, the evidence of
impairment and certificates of analysis were
excluded as evidence and the accused was
acquitted.
The Crown appealed to the Prince Edward Island
Supreme Court33, which overturned the conviction
and ordered a new trial. The Supreme Court judge
found the detention lawful and not arbitrary. He
concluded that the authority to stop the vehicle
could arise from either statute or articulable
cause at common law. In this case, the officer had
a reasonable belief the vehicle was being
operated contrary to Prince Edward Island’s
Highway Traffic Act (HTA). The officer had an
honestly held belief that the accused failed to
yield to a pedestrian under s.190(1) HTA.
Furthermore, s.10(1)(c) of the Act permits a
police officer to direct traffic to ensure safety
on the highway. This would allow the officer to
stop the accused believing his actions were a
public safety hazard. Stopping him was therefore
not arbitrary, random, or without foundation.
33

At the same time, the Supreme Court judge was
of the opinion that under the common law the
police may stop persons where they have an
articulable cause. In allowing the appeal and
ordering a new trial, the judge stated:
There were three specific, objective, discernable
facts, namely the slow driving, the early signalling,
and the alleged failure to yield that caused the
police officer to select the [accused’s] vehicle. It
was not a hunch. It was not a random stop. There
was a rational foundation for the detention. It was
not a[n] arbitrary detention…

And further:
I am of the opinion that the three specific and
articulable observations, when taken together with
rational inferences from those facts, would
constitute objectively discernible facts and
provide reasonable grounds to suspect the driver
to be impaired. The fact that, subjectively, the
officer did not connect the three observations and
suspect impairment does not preclude finding, on
an objective analysis, that there were grounds to
suspect impairment, and therefore, grounds to stop
the [accused].

Dissatisfied with the result, the accused appealed
to the Prince Edward Island Supreme Court
Appeal Division (PEISCAD) seeking a reversal of
the Supreme Court’s judgment. He submitted that
the officer in this case acted arbitrarily because
he neither had lawful authority (statutory or
common law) to stop the vehicle nor an articulable
cause. The PEISCAD agreed and ruled in favour
of the accused.

Arbitrary Detention
Chief Justice Mitchell, writing the opinion for the
2:1 majority, noted that a detention will not be
arbitrary under s.9 of the Charter when a police
officer “acts in accordance with statutory or
common law authority and has articulable cause.”
In this case, the officer stopped the accused
because he believed s.190(1) HTA had been
violated when a pedestrian had just stepped into a
crosswalk, but was not yet into or near the

see R. v. Coles, 2003 PEISCTD 36

Volume 3 Issue 3
April 2003

28

accused’s side of the roadway. However, s.190(1)
does not cover such a situation. A breach of
s.190(1) requires the pedestrian to be on or so
near the motorists half of the roadway as to
constitute a danger. Furthermore, s.10(1)(c) and
(d) of the Act were not applicable. None of the
specific purposes enunciated in s.10(1)(c)
(directing traffic in an emergency/ expediting
traffic/ ensuring highway safety) were present.
Nor did the officer have a reasonable belief that
the vehicle was being operated illegally which
would have permitted a stop under s.10(1)(d). His
belief in a s.190 contravention was not reasonable;
it was based on a misunderstanding of the law.
Since the officer’s only reason for stopping the
accused was erroneous, his “ignorance of the law
could not provide reasonable cause for him to
detain the [accused].” Nor could a judge use
factors, although objective, that were not
considered by the officer at the time of the stop.
Justice Mitchell wrote:
Detaining a person on the highway may be justified
even though it does not result in any charge or
conviction provided that prior to doing so the
officer has reasonable cause to suspect the
detainee is implicated in a violation of the HTA or
the Criminal Code. However, here, prior to the
detention, the officer had no basis to suspect a
violation of the Criminal Code and should have
known there was no violation of the HTA. A
detention that would otherwise be unconstitutional
cannot be rendered lawful on the basis of what was
found after or as a result of it. Attempts to
justify unconstitutional acts by that type of ex
post facto analysis is repeatedly criticized by the
Supreme Court of Canada…
I disagree with [the P.E.I. Supreme Court] judge's
statement…to the effect that a detention would
be justified so long as grounds existed even though
the officer did not utilize them in making his
decision to stop the [accused]. In my view, the
grounds must have existed in the mind of the
officer and influenced his belief at the time of the
detention otherwise his actions would not be
justified. An officer could not afterwards rely on
factors he did not consider as grounds at the time
of the detention. A detention would be nonetheless

Volume 3 Issue 3
April 2003

arbitrary if it turns out the officer might have had
grounds had he only taken into account certain
other factors that existed but that he did not in
fact consider at all. The question is whether the
officer acted on reasonable grounds, not whether
there were such grounds available. The purpose of
s. 9 of the Charter is to prevent agents of the
state from interfering with a person's freedom of
movement without their acting on reasonable
cause. Just as a police officer must satisfy him or
herself that there are valid grounds for
conducting a search before carrying it out, so too
an officer must also satisfy him or herself that
grounds exist for a detention before detaining.
There is both a subjective and an objective aspect.
The officer must have reasons for his belief, and
those same reasons must be reasonably capable of
supporting such belief. [references omitted,
emphasis added]

Justice McQuaid, in his dissenting judgment,
disagreed with the majority. In his view, the
officer was entitled to stop the accused under
either s.10(1)(c) or (d) or on the basis of
articulable cause. The officer did have a
reasonable belief the accused contravened
s.190(1) HTA even though a close reading of the
section would have precluded a conviction. He also
proceeded through the pedestrian crosswalk
thereby jeopardizing public safety. As well,
Justice McQuaid concluded that articulable
cause, the minimum standard justifying state
interference in a citizen’s right to move freely
about, existed. He stated:
The inference from all the evidence of the police
officer is that while the incident at the crosswalk
was the defining reason for the detention, the
police officer had two additional reasons to be
concerned the [accused] might be a public safety
menace as he drove along Euston Street/Brighton
Road. He was driving much slower than the posted
speed limit and he was tentative in the use of his
signalling devices. These two facts alerted the
police officer to the operation of the motor
vehicle and while they were not the reason he
stopped the [accused], they constitute evidence
the officer had an objective belief there was a
public safety issue that would justify the
detention of the [accused].

29

The purpose of s. 9 of the Charter is to allow
citizens to move about freely without the threat
of being detained by agents of the state in the
absence of some reasonable belief they have
violated the law. As [the Supreme Court judge]
points out in…his reasons for judgment, an
assessment of the police officer's reasonable
belief that a vehicle is being operated contrary to
the Highway Traffic Act does not require proof
the police officer's belief be correct in that
grounds must exist to charge and convict the
driver for a violation of the Act. Drivers are
stopped many times by police out of interest for
public safety. Some are not charged with violations
of the Act and even when they are charged with a
violation, a conviction may not result because at law
it was not possible to establish a violation. In those
circumstances, the driver's rights under s.9 of the
Charter could not be said to be violated as long as
the police officer had a reasonable belief, founded
on objective criteria, there was a violation or a
public safety issue.
In this context, it is useful to remember the right
to move about in a motor vehicle is not a
fundamental liberty. It is a licensed activity which,
for the protection of the public, is subject to
regulation and control. If a citizen is exercising his
or her right to participate in this licensed activity
in accord with the relevant law, the individual's
right under s. 9 is to be respected. However, when
an agent of the state has a reasonable belief this
is not so and holds a reasonable belief there is a
danger being posed to the public, the individual's
right under s. 9 of the Charter yields to the right
of the state to protect the public by the
enforcement of the law.

Despite Justice McQuaid’s opinion, the majority
granted leave to appeal and the verdict of the
trial judge excluding the certificates of analysis
and acquitting the accused was restored.
Complete case available at www.canlii.org

Note-able Quote
“Experience is a hard teacher, because she gives
the test first, the lesson afterwards” Vernon
Sanders Law

Volume 3 Issue 3
April 2003

REQUEST FOR
IDENTIFICATION DOES NOT
NECESSARILY CREATE
DETENTION
R. v. C.R.H., 2003 MBCA 38
Police officers on routine vehicle
patrol at 1:20 am observed the
accused and his two companions
walking on the sidewalk in a
residential neighbourhood. The police stopped
abreast the three young men and one officer
stated, “Hi, how’s it going? Where are you guys
headed?”, through an open car window. The youths
went over to the police car and were asked
several questions including names, dates of births,
addresses, and telephone numbers. At all times
the police officers remained within their car.
While one officer engaged the youths in casual
conversation, the other officer queried the names
on CPIC and it was learned the accused was
breaching his probation curfew for which he was
consequently arrested and charged.
At trial for breach of probation, the Manitoba
Provincial Court Judge ruled the accused had
been arbitrarily detained contrary to s.9 of the
Charter and his right to be secure against
unreasonable search and seizure under s.8 had
been infringed when the police requested personal
information in the form of identification and
checked it on the computer. The evidence
obtained by the police resulting from the stop
was excluded. In his view, the accused was
detained because it is to be presumed that a
person is compelled to answer police questions
unless there was evidence of informed consent. In
particular, he concluded that a pedestrian
stopped by police for a computer identity check is
subject to “an atmosphere of oppression.”
The Crown appealed to the Manitoba Court of
Queen’s bench. The appeal justice overturned the
acquittal. In her view, the accused failed to
demonstrate that there was any compulsion to

30

comply with a direction or demand. There was no
evidence of a command, order, or direction for
the accused to approach the police car or to
remain while the CPIC query was completed. Nor
did the accused testify that he believed there
was no option but to answer the police questions.
Further, she ruled there was no s.8 Charter
breach when the police ran the name on CPIC. The
information in the police computer was not
personal and the accused could not claim a privacy
interest in his probation order that would exclude
the right of police access.
The accused appealed the Queen’s Bench
judgment to the Manitoba Court of Appeal
arguing that he was arbitrarily detained (s.9
Charter), that he was not informed of his right to
counsel (s.10(b) Charter), and that the request
for identification and computer search violated
his right to be secure against unreasonable
search and seizure (s.8 Charter).

Detention
Justice Steel, rendering the unanimous judgment
for the Manitoba Court of Appeal, began the
analysis by assessing whether there was a
detention. Before the right to counsel under s.10
is triggered or the arbitrariness of a detention is
considered under s.9, it must be first determined
that a detention in fact occurred. A detention
under the Charter may occur in one of three
ways:
1.

deprivation of liberty by physical restraint;

2. state control through a direction or demand
which prevents/impedes access to counsel and
failure of non-compliance may result in
significant legal consequences; or
3. submitting to a state direction or demand in
which the person reasonably perceives they
have no choice but to comply, even though
there is no criminal liability for failing to do
so. This is commonly referred to as
“psychological detention”.

Volume 3 Issue 3
April 2003

Justice Steel noted that the police may question
anyone they believe may have information while
investigating an offence, but cannot compel
answers. However, “the mere fact of a
conversation between a citizen and a police
officer does not raise a presumption of
detention.” The court must look beyond the fact
of an officer/citizen encounter and examine the
“entire relationship between the questioner and
the person being questioned”, including the
reasonableness of the person’s subjective belief.
For example, “the personal circumstances of the
accused, such as age, intelligence and level of
sophistication” may be considered. He wrote:
The accused argues that the request for
identification from police officers creates an
inference that the accused reasonably believed he
had no other choice but to comply. At that point,
it is submitted, the onus shifts onto the Crown to
prove informed consent. I do not agree. There
must be more than the request itself, even if it is
from police officers and even if it is a request for
identifying information.

And further:
We have not yet reached a situation where a
compulsion to comply will be inferred simply
because the request comes from a police officer or
that a compulsion to respond should be presumed
unless the Crown can show evidence of informed
consent. It is true that the very nature of the
police function and the circumstances which often
bring the police into contact with individuals
introduce an element of authority into a request
made by a police officer. Certainly, there is a
power imbalance between police and citizens, but
that cannot mean that police can never ask
questions. Instead, the power imbalance should be
one of the factors to be considered in an analysis
of the interaction and a consequent determination
of whether there was a compulsion to comply.
[references omitted]

Although “a pedestrian has the expectation of
complete freedom of movement” where no crime
has been committed or investigation is taking
place, “so long as police officers merely question
citizens and do not interfere with individual

31

SECTION 25 CRIMINAL CODE:
A SHIELD, NOT A SWORD

liberties by detaining them, such proactive
policing should not be prohibited.” The Court
concluded that there is no bright line rule that a
detention can be assumed when the police
approach a pedestrian. Since there was no
detention, the right to counsel was not engaged
nor was there a need to enquire into its
arbitrariness.

Sgt. Mike Novakowski

Section 25(1) of the Criminal Code
protects a police officer and anyone
else acting lawfully, in using force to
do what they are authorized or
required by law to do.
This
provision has also been referred to
as the “Peace Officer” defence34.

Search and Seizure
In addressing the accused’s additional argument
that the CPIC computer search violated his s.8
Charter right to be secure against unreasonable
search and seizure, the Court held:
The implications for law enforcement of a finding
that access by the police to CPIC computer
information engages Charter rights are significant.
I do not need to enter into that discussion. For
the purposes of this case, I would dismiss this
ground of appeal for substantially the same
reasons as the summary conviction appeal judge.
The accused's probation order was a public record,
as was his criminal record information maintained
by the police. The place where the information
was obtained was a computer maintained by the
obtaining party itself; namely, the police service.
The police database is not an area in which the
accused can assert a privacy interest that would
exclude the right of access of the police.

In dismissing the appeal, Manitoba’s top court
concluded that both the purpose and motive of
the police must be considered in determining what
impact the citizen/police interaction had on the
person’s reasonable expectation to comply. It is
incorrect to infer a presumption of compulsion
simply because there was an encounter with
police. As noted by Justice Steel, “the overall
situation must be evaluated having regard to what
is said and done, in what manner, in what location
and for what purpose.”
Complete case available at www.canlii.org

s.25(1) Criminal Code
Every one who is required or authorized by law to do
anything in the administration or enforcement of the
law… (b) as a peace officer…is, if he acts on
reasonable grounds, justified in doing what he is
required or authorized to do and in using as much
force as is necessary for that purpose.

Section 25 affords a qualified protection from
liability for police officers using force while in
the lawful execution of their duty. However, this
provision does not in itself “provide authority for
the use of force, it merely provides a defence
that may be raised when the force used is
challenged as unlawful”35.
For example, in R. v. Brennan (1989) 52 C.C.C. (3d)
366 (Ont.C.A.), an officer who ran a stop sign
while pursuing a stolen vehicle argued he was
entitled to disobey the sign under s.25(1). The
question addressed by the Court was not whether
the officer was required or authorized to
apprehend the driver, but whether the officer
was required or authorized to drive through the
stop sign. In the absence of a statutory provision
or common law authority to do so, the officer was
not entitled to drive past the sign without
stopping. In this sense, s.25 acts as a “shield” not
a “sword”.
Thus, the police must be authorized or required
by statute or common law to undertake the action

Note-able Quote
“Law is mind without reason” Aristotle 384 B.C.322 B.C.

Volume 3 Issue 3
April 2003

34

R. v. Finta [1994] 1 S.C.R. 701, see also R. v. Devereaux (1996) 112 C.C.C. (3d) 243
(Nfld.C.A.)
35
R. v. Garcia-Guiterrez (1991) 65 C.C.C. (3d) 15 (B.C.C.A.) per Wood J.A., see also
Eccles v. Bourque [1975] 2 S.C.R. 739.

32

at issue (eg. arrest, detention, search, entry,
etc.); if so, s.25 merely cloaks the officer with
protection from criminal or civil liability36 when
they use reasonable force in doing so. For
example, police may use reasonable force, as
necessary to overcome resistance to a lawful
search, and to preserve from destruction any
evidence that is properly the object of that
search37. Similarly, s.495 of the Criminal Code
“implicitly authorize[s] a police officer, acting on
reasonable grounds, to use as much force as is
necessary to effect an arrest”38; “the right to use
reasonable force is, in the eyes of the law, simply
part and parcel of the right to make an arrest”39.
To be protected by s.25(1) of the Code, the
following must be demonstrated40:
[T]he force was used by a peace officer authorized
by law to engage in law enforcement, that he acted
on reasonable grounds, and that the force used was
“necessary for [the] purpose.”

their authority and use reasonable force for that
purpose.

Using as much force as is necessary
In assessing whether the level of force was
reasonable, “it is the belief of the police officer
in light of all the circumstances that is
important.”41
Mere
suspicion
however,
is
insufficient.
There must be some level of
objective grounds to support the officer's
subjective decision to act; the cumulative effect
of their observations, their knowledge of the
subject(s) and the situation, information they
have received, and their experience. Further, the
police are not required to measure the amount of
force with exactitude42. The Courts have
recognized that there will be some consideration
given to the amount of force used and whether it
exceeded the reasonable amount necessarily
required. The following quotes from various
courts underscore this principle:

In Hudson v. Brantford Police Services Board,
(2001)
Docket:C34963
(Ont.C.A.),
justice
Rosenberg for the Ontario Court of Appeal held:

In determining whether the amount of force used
by the officer was necessary the jury must have
regard to the circumstances as they existed at the
time the force was used. They should have been
directed that the [officer] could not be expected
to measure the force used with exactitude. R. v.
Bottrell (1981), 60 C.C.C. (2d) 211 B.C.C.A.

[Section 25(1)] provides that a peace officer who
is authorized by law to do something in the
enforcement of the law is justified in doing what
he or she is authorized to do if the officer “acts
on reasonable grounds”. In effect, s.25(1) protects
the officer from civil liability for reasonable
mistakes of fact and justifies the use of force. It
does not protect against reasonable mistakes of
law, such as mistake as to the authority to commit
a trespass to effect an arrest.[emphasis added]

It was necessary for the constable to strike hard
enough to release the determined grip of the
complainant on the handle of the door. To effect
that result, the constable could not be expected to
weigh to a nicety the exact measure of force
necessary to achieve that result. R. v. Cline (1991),
117 A.R. 4 (Alta C.A.)

Similarly, the Ontario Court of Appeal in R. v.
Asante-Mensah (2001) Docket: C24828/C25026
(Ont.C.A.) stated:

While according to the circumstances some
allowance must be made for an officer in the
exigencies of the moment misjudging the degree of
force necessary to restrain a prisoner… Foster v.
Pawsey & Draper (1980), 28 N.B.R. (2d) 334
(N.B.Q.B.).

[Section] 25 of the Criminal Code does not confer
powers upon police officers or others, but rather
shields them from civil or criminal prosecution if
they act on reasonable grounds in the exercise of

In assessing [whether excessive force was used], I
must bear in mind that the degree of force must
be viewed from the subjective view of the police

36

Priestman v. Colangelo (1959) 19 D.L.R. (2d) 1 (S.C.C.).
R. v. Garcia-Guiterrez (1991) 65 C.C.C. (3d) 15 (B.C.C.A.) per Wood J.A.
R. v. Leahey 2000 ABPC 198
39
R. v. Asante-Mensah (2001) Docket: C24828/C25026 (Ont.C.A.)
40
Mohamed v. City of Vancouver et al 2001 BCCA 290
37
38

Volume 3 Issue 3
April 2003

41
42

R. v. Bottrell (1981), 60 C.C.C. (2d) 211 B.C.C.A.
R. v. Garcia-Guiterrez (1991) 65 C.C.C. (3d) 15 (B.C.C.A.) per Wood J.A.

33

officers as well as the objective circumstances. I
must also make due allowance for a police officer
in the exigencies of the moment misjudging the
degree of force needed, and avoid holding a police
officer to a standard of conduct that one sitting in
the calmness of a courtroom later might determine
was the best course. Stewart v. Canada [1999]
F.C.J. No. 1996 (F.T.C.) appeal to Federal Court of
Appeal [2001] FCA 128 dismissed.
The right to use force must in each case depend
upon its own circumstances, which must be
considered to determine how they might be
expected to act upon the mind and judgment of
the officer, and to determine whether the officer
was justified in using force. R. v. Purvis (1929) 51
C.C.C. 273 (Ont.Co.Crt.)
Counsel argues that the physical force which was
exhibited was out of proportion to the nature of
the offence (a traffic related offence) which was
at the heart of the matter. While it is indeed
unfortunate that the altercation in question
occurred, the nature of the offence is not
relevant. Disputes over seemingly minor matters
can at times raise emotions out of all proportion to
the issue involved. It is the circumstances in
which the officer finds himself that are relevant
for section 25(1) purposes. Dyer v. Canada [1992]
F.C.J. No. 238 (F.T.C.)

Summary
To be justified in using force generally, a police
officer must establish:
•

•
•

they were required or authorized by law to
act in the administration or enforcement of
the law (acting in the lawful execution of
their duties);
they were acting on reasonable grounds; and
they used no more force that was reasonably
necessary

In short, the use of force must be necessary and
proportionate in the circumstances43.

43

SPONTANEOUS RESPONSE TO
ALLEGATION NOT
ELICITATION
R. v. Gitsadig, 2003 ABCA 91
The accused, a taxi driver, was
arrested for the sexual assault
of a passenger after she
reported the incident and the
number of his cab to police. At the time of his
arrest he was advised of his right to counsel and
cautioned about providing a statement. He asked
to speak to a lawyer and was transported to the
police station where he was placed in a room with
a telephone, telephone books, and was advised
that a list of telephone numbers for duty counsel
were available. As the officer turned to leave the
room, the accused asked what the allegations
were. After the officer told him, the accused
stated he remembered the female passenger but
that there was no physical contact between them.
During the voire dire to determine the
admissibility of this statement, the judge
concluded there was no violation of his right to
counsel under s.10(b) and even if there had been
the statement would be admissible under s.24(2).
The accused appealed to the Alberta Court of
Appeal arguing he had not been given the
opportunity to exercise his right to counsel
before he gave his statement. In dismissing his
appeal, Justice Fruman for the unanimous court
rejected this submission stating:
The trial judge correctly found that the
[accused’s] s. 10( b) Charter rights had not been
violated. The [accused] gave a very short,
spontaneous statement when told of the
allegations against him. He had been chartered and
cautioned and indicated he understood his rights.
His statement was not elicited in any way by the
police officer, nor did she continue the interview.
She did not question him, but merely provided
information to him in response to his question
about the nature of the charges against him. The
[accused’s] statement was brief and the police
officer had no notice that he was going to give it

Mohamed v. City of Vancouver et al 2001 BCCA 290

Volume 3 Issue 3
April 2003

34

and no means of stopping him from speaking. She
had no opportunity to provide a Prosper [[1994] 3
S.C.R. 236] warning, nor was one called for.
Finally, even if a breach could be found, the trial
judge was correct that, at best, it was a technical
breach that could not bring the administration of
justice into disrepute.
Complete case available at www.albertacourts.ab.ca

POLICE NEED NOT PLAY WORD
GAMES OVER RIGHT TO
COUNSEL
R. v. Matkea, 2003 ABQB 27
A police officer pulled the
accused over after he was
observed weaving a homemade
go-cart on the roadway at
approximately 30 km/h. The officer could smell
alcohol and the accused responded that he had
been drinking when questioned. He was arrested
and advised of his right to counsel. When asked,
“Do you want to call duty counsel, or any other
lawyer?” he replied, “I don’t know yet.” He was
then given the police caution. The accused was
then transported to the police station and again
asked if he wished to contact a lawyer. He
replied, “No.” At trial the accused was convicted
of an alcohol related driving offence under s.253
of the Criminal Code.
However, he appealed to the Alberta Court of
Queen’s Bench arguing, in part, that his right to
counsel under s.10(b) of the Charter had been
violated. He submitted that when he first
ambiguously answered, “I don’t know yet”, the
officer failed to fulfill his obligation in holding
off from eliciting evidence (breath samples) until
further efforts were made to determine full and
proper waiver. Queen’s Bench Justice Watson
disagreed. In his view, the police are “not
required to play word games with a detainee,
under circumstances such as this”. He held:
It seems to me that [answering “No” at the police
station to the officer’s second question about

Volume 3 Issue 3
April 2003

speaking to a lawyer] would have ended any dubious
nature of the first comment that was made by the
individual. Especially having regard to the fact that
the first comment was not made that he wanted to
speak to counsel, or that he had any contemplation
about doing so; but that in fact he wasn’t sure yet,
or he hadn’t made up his mind yet, or whatever he
meant by the expressions that he used there.
Under the circumstances, I do not find any
violation of a holding off requirement here,
because as I said before, the Constable did not
attempt to obtain self-incriminatory evidence,
prior to an answer, No. Once he got the answer,
No, and then the cooperation of the [accused]
after that, it seems to me that there was not any
violation of the right to counsel, or the right to
have a reasonable opportunity to exercise it.
Complete case available at www.albertacourts.ab.ca

SLEEPING DRIVER REBUTS
PURPOSE OF OCCUPYING
OPERATOR’s SEAT
R. v. Shuparski, 2003 SKCA 22
At 12:07 am a police officer
found the accused asleep in his
vehicle at the roadside. He was
reclined in the driver’s seat with
the keys on the front passenger seat. The engine
was off and the vehicle was in park. He exhibited
signs of impairment, was arrested, and given the
breath demand. He subsequently provided breath
samples at 2:50 am and 3:12 am in excess of the
legal limit and was charged with care and control
while impaired and over 80mg%. At trial, the
accused testified that about 10 minutes after
leaving his girlfriend’s home at midnight he was
feeling fatigued and unsafe to drive because he
was tired and had been drinking. He pulled off the
road, put his vehicle in park, placed the keys on
the seat, locked the doors, reclined his seat, and
fell asleep.
The Saskatchewan Provincial Court judge
acquitted the accused of the impaired charge
because she had a reasonable doubt as to his

35

impairment. On the over 80mg% charge, she was
satisfied his blood alcohol content was over the
limit and that he was both in actual care and
control (presented a present danger to resume
driving) and presumptive care and control (he
never abandoned the purpose to set the vehicle in
motion even though he intended to sleep for
awhile). She would have convicted him but for the
prior judicial decision of the Saskatchewan Court
of Queen’s Bench she felt bound to follow in R. v.
Sherbrook, [1998] 6 W.W.R. 602 (Sask.Q.B.). In
her view, the rationale barring her from
convicting the accused was as follows44:
[With reference to the presumption found in
s.258(1)(a) of the Criminal Code] the time to
assess the accused's purpose is when he or she is
found by the police, and if asleep at that time,
when he or she went to sleep… The essence of the
decision regarding the presumption is that the
making of a conscious decision to sleep in the
vehicle for awhile constitutes an abandonment of
occupation of the driver's seat for the purpose of
setting the vehicle in motion. The intention to
resume driving at a later time is not sufficient to
establish that the accused occupied the driver's
seat for the purpose of setting the vehicle in
motion.
………

[With reference to actual care and control] the
Queen's Bench ruling was that, as a matter of law,
a person who stops driving and intends to sleep,
and then to resume driving when he is of the view
he has sobered up enough to do so has only a
future intention to drive. This does not constitute
care or control at the time he is found asleep in
the vehicle by the police, if the vehicle is not
running and in the absence of some other evidence
that the accused has "...performed some act or
series of acts involving the use of the car, its
fittings or equipment" …. The decision precludes a
finding that an intention to resume driving at a
later time coupled with a present ability to set the
vehicle in motion is de facto care or control.
[references omitted]

Thus the accused was acquitted. A Crown appeal
of the trial judge’s decision was dismissed. The

44

see R. v. Shuparski [2001] S.J. No. 220 (Sask.Prov.Crt)

Volume 3 Issue 3
April 2003

Crown further appealed, this
Saskatchewan Court of Appeal.

time

to

the

Impaired Care & Control Principles
Chief Justice Bayda, for the 2:1 majority and
concurred in by the dissenting justice, first
outlined four sets of principles respecting alcohol
related driving offences:
1.

The offence of operating a motor vehicle over
80mg% is a separate and distinct offence
from care and control of a motor vehicle, in
motion or not, while over 80mg%. Each has its
own mens rea and actus rea.

2. The mens rea of care and control “is the
intent to assume care and control after the
voluntary consumption of alcohol or a drug.45”
Intent to drive or set the vehicle in motion is
not required.
3. The actus reus of care and control is “acts
which involve some use of the car or its
fittings and equipment, or some course of
conduct associated with the vehicle which
would involve a risk of putting the vehicle in
motion so that it could become dangerous”
after the voluntary consumption of alcohol
has produced in the person's blood a
concentration of alcohol that exceeds 80mg%.
4. The Crown may prove care and control either
by proving actual (non-presumptive or de
facto) care and control or by relying on the
presumption found in s.258(1)(a) of the
Criminal Code which deems the person
occupying the driver’s seat in care and control
of the motor vehicle.
s.258(1)(a) Criminal Code
…where it is proved that the accused occupied the seat
or position ordinarily occupied by a person who
operates a motor vehicle…the accused shall be deemed
to have had the care and control of the vehicle…unless
the accused established that the accused did not
occupy that seat or position for the purpose of setting
the vehicle…in motion

45

R. v. Toews [1985] 2 S.C.R. 119

36

Under this section however, it remains open to
the accused to prove on a balance of probabilities
that they did not occupy the seat for the purpose
of setting the vehicle in motion. If the accused is
successful in rebutting the presumption, the
Crown must prove care and control beyond a
reasonable doubt through the non-presumptive
means.

Can the purpose for occupation change
without vacating the driver’s seat?

Under s.258(1)(c) of the Code, the results of
breath samples taken pursuant to a demand are
proof of blood alcohol concentration at the time
of the driving or care and control provided the
first sample was taken within two hours of the
offence.

A requirement that the [accused] vacate the
driver's seat in order to change the purpose for
occupying it is not merely unreasonable, but
nonsensical. To require that physical act hardly
fits the pattern for the way the human mind makes
decisions. And of course, to acquire a "purpose" is
to make a decision, to perform a mental act.
Consider this example: A person gets into the
driver's seat of his car to listen to his CD stereo.
He has no other purpose. He then makes a
deliberate decision to fall asleep. He turns off his
stereo, remains in his seat, but reclines it and falls
asleep. Is it rational to say that his purpose
throughout was to listen to the stereo even after
he turned it off and fell asleep? Surely, his
purpose changed when he decided to turn off the
stereo and fall asleep. It is nonsensical to suggest
he first had to vacate the driver's seat to change
purposes. Suppose when he woke up he decided to
again listen to the stereo. Can it be said that his
purpose then was to sleep? Hardly. Can it be said
that his purpose throughout this entire period was
to listen to the stereo even when it was turned off
and he was asleep? Again, hardly. I find that
whatever purpose a person has for originally
occupying the driver's seat (e.g. when he first gets
into the vehicle) that purpose may change at any
time the person decides to change it. He does not
need to vacate the seat to change purpose.

s.258(1)(c) Criminal Code
…where samples of the breath of the accused have
been taken pursuant to a demand…if (ii) each sample
was taken as soon as practicable after the time when
the offence was alleged to have been committed and, in
the case of the first sample, not later than two hours
after that time…evidence of the results of the
analyses so made is, in the absence of evidence to the
contrary, proof that the concentration of alcohol in the
blood of the accused at the time when the offence was
alleged to have been committed…

In other words, the Crown can only rely on a
certificate of analysis under s.258(1)(c) if it
could be proven, either by relying on the
presumption or proving actual care and control,
that the accused was in fact in care and control
within two hours of the taking of the first
sample. Since the first sample was taken at 2:50
am, the care and control offence would have to
occur within the “critical overlap” period -between 12:50 am (2 hours before the first
sample) and 2:07 am (the time the officer found
the accused) -- in order for the Crown to use the
two hour presumptive window provided by
s.258(1)(c). Thus, the accused’s purpose in
occupying the driver’s seat between 12:50 am and
2:07 am was critical. He testified that his
purpose in occupying the driver’s seat during this
crucial period was to sleep, not to set the vehicle
in motion.

Volume 3 Issue 3
April 2003

Even though the accused was driving the vehicle
before he pulled over to fall asleep, his purpose
changed. It was not necessary for him to vacate
the driver’s seat to change his purpose for
occupying it. Justice Bayda held:

Can more than
simultaneously?

one

purpose

exist

The majority of the court concluded that a
person can have more than one purpose at any
given time, but consideration must be given to the
“controlling or dominant purpose”. The majority
stated:
The statute speaks to "the" purpose. That
connotes either one purpose and if there should be

37

more than one, the controlling or dominant purpose.
In other words, a person occupying the driver's
seat could have a dominant or controlling purpose
and also one or more incidental, inchoate or
contingent purposes. Those latter purposes, by
definition, are neither dominant nor controlling and
do not qualify for "the" purpose. Any one of them
may qualify as "a" purpose, but that is not the way
the statute is worded.

Is purpose outside the crucial time
period relevant?
Finally, the majority found that the purpose for
occupying the driver’s seat outside the critical
overlap period could provide proof of the sole or
dominant purpose inside the critical overlap
period if the occupation continues without
interruption. In this case, the accused’s purpose
in occupying the driver’s seat changed from
driving home to falling asleep. He accomplished
the changed purpose by stopping his vehicle,
putting it in park, turning off the engine, taking
the keys out of the ignition, reclining the seat,
and falling asleep. At this moment, his actions
were entirely inconsistent with “the purpose of
setting the vehicle in motion.” It would be absurd
to suggest that, while asleep, he again changed his
purpose to one of setting the vehicle in motion
when he awoke. Justice Bayda wrote:
A sleeping person is unconscious and cannot perform
the mental act of acquiring a new purpose. Even if he
had a broad general intention before he fell asleep to
drive home after he was awake and refreshed, and
even if that broad general intention may be
construed and narrowed to a particular purpose for
occupying the driver's seat, then at that critical
point it was not the controlling or dominant purpose
for occupying the driver's seat. At most, it was a
contingent, inchoate or incidental purpose, but not
"the" purpose.

The accused successfully established that during
the critical overlap period (12:50 am to 2:07 am)
he did not occupy the driver’s seat to set the
vehicle in motion. Thus, he had rebutted the
presumption found in s.258(1)(a). The Crown also
failed to prove the actus reus of actual (non

Volume 3 Issue 3
April 2003

presumptive) care and control. The only act during
the critical overlap period was sleeping. There
was no “risk of putting the vehicle in motion so
that it could become dangerous”. The accused
was sleeping in a parked vehicle with the engine
off and the keys on the seat. Justice Bayda held:
Whether a potential for dangerousness should be a
cause for concern where a person is in a "position"
to set a vehicle in motion depends not so much on
the physical "position" the person happens to be in
as it does on his attitude or disposition towards
potential dangerous situations. If it is nonchalant,
non-caring or reckless, that is one thing. If the
attitude is to specifically address the situation
with a view to eliminating it, that is quite another
thing. In the present case, the [accused’s]
deliberate rational decision, after he realized his
driving may be creating a dangerous situation, to
stop his driving in order to sleep is strong evidence
of his attitude to potential dangerous situations:
It is an attitude towards eliminating those
situations after a realization takes hold. Given that
attitude, it is unlikely that after eliminating one
potential dangerous situation, he would be apt to
create a new dangerous situation by driving after
he awoke if he was unfit to drive. In other words,
when the facts of the case are viewed from an
"overall"
perspective
that
element
of
dangerousness that is central to all of these care
or control cases was not present in this case, which
is to say the Crown failed to prove this element of
the offence beyond a reasonable doubt.

The majority dismissed the Crown’s appeal.

A different view
Justice Jackson, in dissent, took a different view.
With respect to actual care and control he
concluded that “the case law permits a court to
find danger where an individual enters a vehicle
for the purpose of driving it and decides to sleep.
The risk that [they] might set the vehicle in
motion upon awakening is sufficient to prove the
risk and dangerousness necessary for the actus
reus of care and control.” He stated:
A risk of putting the vehicle in motion, and the
possibility of danger emanating therefrom, are
almost always present with these facts, i.e., a

38

person over .08 enters a vehicle to drive and then
decides not to drive but to sleep. I use the word
"almost" because I cannot foresee all possible fact
situations, but on the facts of this appeal, there
was an increased risk, and therefore, an increased
danger that the accused would drive because he
had already done so and he still needed to do so to
get himself home. This is an anticipation of harm,
but the criminal law addresses itself not just to
actual harm but to the creation of offences
prohibiting behaviour which can lead to physical
harm or property loss.
If a court cannot find dangerousness in this
situation, one would have to conclude that impaired
drivers in the circumstances of this case are no
hazard. This would not seem to be correct…. It is
trite to say, but no less true, that we discourage
people from entering the driver's seat because
persons who are impaired cannot accurately assess
the extent of their own impairment and may
believe they are sober enough to drive when they
are not.
………

Since an accused does not have to "intend to drive"
when the court is considering actual care or
control, this must mean that dangerousness…can be
found where there is only a risk of driving with no
immediate intention to drive….
While the intention to drive does not form part of
the mens rea of the offence of actual care or
control, it does not mean that intention has no role
to play in determining whether the actus reus of
the offence is present. The intention to drive can
be relevant to determine whether there is a risk
of setting the vehicle in motion from which danger
may arise.

With respect to relying on the presumption found
in s.258(1)(a), Justice Jackson was of the opinion
that a court must consider all of the surrounding
circumstances, including past and present reasons
for the accused’s presence in the driver’s seat as
well as the vehicle’s operability. Furthermore, a
court can infer from the person’s actions whether
they had more than one purpose for occupying the
driver’s seat, including setting the vehicle in
motion.
[The accused] occupied the driver's seat of his
vehicle. The trial judge found his intention to drive

Volume 3 Issue 3
April 2003

continued into the period of sleep, which means he
could not establish he did not occupy the driver's
seat for the purpose of setting it in motion. He is,
therefore, deemed to be in care or control under
clause 258(1)(a). Since the Crown proved the
prohibited level of blood/alcohol concentration at
the time of discovery, [the accused] must be found
guilty.

Justice Jackson would have allowed the appeal,
directed a guilty verdict, and remitted sentencing
back to the trial judge.
Complete case available at www.canlii.org

UPCOMING APPEAL
The Supreme Court of Canada
has granted leave in the appeal
of the Manitoba Court of Appeal
judgment in R. v. Mann, 2002
MBCA 121 (see Volume 2, Issue 10 of this
publication). In that case, Manitoba’s top court
ordered a new trial after a provincial court judge
excluded evidence obtained after police searched
a detainee’s pocket during an investigative
detention and found marihuana. Justice Twaddle,
writing for the unanimous Manitoba Court of
Appeal, concluded that the police were acting
within the scope of their common law duties of
preventing crime and protecting life and property
when they detained a suspect matching the
description of a break and enter suspect.
Furthermore, a security search of the detainee’s
pullover pouch for safety purposes was necessary
to carry out these duties and involved a minimal
interference with personal integrity. This will be
the first time the Supreme Court of Canada deals
head-on with searches incidental to investigative
detention.
For comments on or contributions to this
newsletter or to be added to our electronic
distribution list contact
Sgt. Mike Novakowski at the JIBC Police
Academy at (604) 528-5733 or e-mail
mnovakowski@jibc.bc.ca

39

2003 NATIONAL FIELD
TRAINING CONFERENCE
JUNE 1-5, 2003

members/$375 for non-members). A block of
rooms has been set aside, on a first come first
serve basis, at a very reasonable rate of $69 per
night if booked prior to May 1, 2003.

Scottsdale, AZ

Topics scheduled for this year’s conference,
presented by a compliment of high quality and
professional speakers, include:

The National Association of
Field
Training
Officers
(NAFTO) is an educational and
professional
association
concerned with apprenticeship
training (commonly referred to
as the Field Training Officer
concept) for Law Enforcement, Communications,
and
Corrections
personnel.
Educators,
Administrators and other Criminal Justice
practitioners are also encouraged to participate.
The concept of NAFTO was formalized with its
incorporation as a non-profit organization in
California in 1991 and was reorganized/ relocated
in 1993 to a more central location in Colorado.
The goals of NAFTO include:
1.

2.
3.
4.

5.
6.

To promote and foster mutual cooperation
between Field Training Officers (FTO), other
members of their agencies, private industry
and the public;
To provide a forum for the exchange of ideas
and techniques;
To conduct training seminars and conferences
in FTO Program related issues;
To research educational methodology so that
improvements may be made in the areas of
teaching and learning;
To educate the membership and the public
regarding apprenticeship training;
To keep the membership, agencies and the
public informed of legislative and statutory
changes and their influence on field training.

This year’s conference is being held in
Scottsdale, Arizona from Sunday, June 1 to
Thursday, June 5, 2003 at the Chaparral Suites
Hotel (www.chaparralsuites.com). Cost of the
conference is $315 for members and $355 for
non-members. These costs will rise for
registration received after May 1st ($335 for

Volume 3 Issue 3
April 2003

•
•
•
•
•
•
•
•
•
•

FTO’s Role in Mentoring Our New Warriors
Policing with Integrity
The C’s of Leadership
Investigating Officer Complaints
Use of Force Investigations
The Warrior, Fear, and Courage
Recognizing and Implementing Change
Teaching Leadership Development
Training in the Rolling Classroom
The Implications of Response Time in Survival
Skills Training

For more information on the NAFTO conference,
check out their website at www.nafto.org or
contact NAFTO’s Executive Director, Lt. Glen
Miller at:
NAFTO
PO Box 259565
Madison, WI
53725-9565
Telephone: (608) 222-5727
Fax: (608) 222-5730
Email: info@nafto.org

National Library of Canada Cataloguing in Publication Data

Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers across
British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2. Police – Legal
status, laws, etc. – Canada – Cases – Periodicals. I. Justice
Institute of British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten - eight.
HV7642.B74I57

363.2'09711'05

C2003-960041-6

40