-1 ..: __
·-

ISSUES OF INTEREST

~ _,,.A Journal Devoted to Topical Policing and Legal Issues for Operational Police Officers in British Columbia
Justice Institute of British Columbia - Police Academy

Vol. 50 No. 2

April, 1999

THE INTOXICATION DEFENCE
A. J. Wright, B.A., M.A., LL.B.

Introduction
Anyone who has worked even one
day in patrol is acutely aware that
drunkenness, whether from drugs
and/or alcohol, is a factor in many
incidents and offences in which the
police become involved. The question
is, however, when does the
intoxication of the accused become
such a significant factor that it can
impact the outcome of a case by
becoming a valid defence at law? The
intoxication defence goes to the issue
of intent. Similar to an insanity
defence, the question becomes, was
the accused in such a state of mind
due to intoxication that she or he was
unable to form the required intent to
carry out the act in question?
It is well established that a criminal
offence cannot be proven unless
someone possesses the required
intent, or mens rea, to carry out the
particular offence, or a lesser included
offence, with which they have been
charged. The "level" of intent to be
proved, however, will vary depending
on the particular offence involved.
When dealing with the issue of intent
there are two types of offences in our
criminal law; those requiring the

THIS ISSUE
Intoxication Defence ......... ............. 1
Consent Searches ............................ 4
911 Calls ......................................... 7

f

Crown to prove only a "general" intent
and those requiring proof ofa "specific"
intent on the part of the accused.
Just as the Criminal Code ("CC'?
does not define ·intent, so too it does
not specify which offences require
proof of specific intent and which are
offences requiring proof of only general
intent. Without getting too caught up in
how offences are categorized, suffice
it to say that, generally speaking,
offences that require proof of specific
intent are the more serious offences.
For example, murder under s. 229 of
the CC requires that the accused meant
to cause the death of a person or meant
to cause that person bodily harm that
was likely to cause death and is thus
an offence of specific intent. Assault
(s. 265), on the other hand, is an
offence requiring only proof of general
intent, in that the Crown simply proves
that it was the force that was applied to
the victim intentionally, not the intent to
cause injury.
General Intent Offences
The defence of drunkenness in
relation to general intent offences was
considered by the Supreme Court of
Canada in both R. v.. Leary, 1 a preCha rter case, and following the
proclamation of the Charter, in R. v..
Bernard. 2 In both cases it was held
that the defence of drunkenness had
no application to offences requiring

.;

proof of only general intent. Further,
in Bernard it was held that this result
did not offend the Charter. According
to Mcintyre J.:
Criminal offences, as a general
rule, must have as one of their
elements the requirement of a
blameworthy mental state. The
morally innocent ought not to be
convicted .... The Leary rule
recognizes that accused persons
who have voluntarily consumed
drugs or alcohol, thereby
depriving themselves of selfcontrol leading to the commission
of a crime, are not morally
innocent and are, indeed,
criminally blameworthy. 3
Mcintyre J. was clearly aware of
the effects of intoxication on crime in
particular, and society in general, and
felt that the public interest was
satisfied by not having an intoxication
defence open to accused persons in
relation to general intent offences:
As I have endeavoured to show,
the exclusion of the drunkenness
defence in general intent cases
is
not
without
logical
underpinnings but, whatever the
logical weaknesses may be, an
overwhelming justification for the

continued on Page 2

Editor:
Craig MacMillan, B.A., M.A., LL.B., Ph.D. (B.C.
Bar)

Associate Editors:
Steve Watt, M.B.A. (Director, Police Academy)
Paul N. Tinsley, B.A., M.A. (Abbotsford Police)

Editorial Board:
Jack L. Gibson, LL.B. (Crown Counsel)
Judge James W. Jardine (B.C. Provincial Court)
Robert Kroeker, B.A., LL.B. (l.C.B.C.)
Darryl Plecas, Ed.D. (U.C.F.V.)
Judge K.J. Scherling (B.C. Provincial Court)
Sheila Sullivan, B.A., LL.B. (Vancouver Police)
A. Jeffrey Wright, B.A., M.A., LL.B. (RCMP)

Technical Assistant:
Robyn Towle, Police Academy (528-5779)

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2

exclusion may rest on policy,
policy so compelling that it
possesses its own logic.
Intoxication, whether by alcohol
or drugs, lies at the root of many
if not most violent assaults:
intoxication is clearly a major
cause of violent crime. What then
is preferable, a recognition of this
fact and the adoption of a policy
aimed at curbing the problem, or
the application of what is said to
be logic by providing in law that
he who voluntarily partakes of that
which is the cause of the crime
should for that reason be excused
from the consequence of his
crime? If that is logic, I prefer
policy. 4
More recently, in R. v. Davia ult, 5
however, the sec reconsidered the
issue. In this case the accused, a
chronic alcoholic, was charged with
the sexual assault of a 65 year old
partially paralyzed and wheelchair
bound female. While not specifically
overruling either Leary or Bernard, the
majority found that the prior rules did
offend the Charter and held that the
defence of drunkenness should be
available in general intent offences.
According to Cory J., proof of intent
is fundamental to our justice system
and an accused should not be denied
the requirement that the Crown prove
all essential elements of an offence:
In my view, the strict application
of the Leary rule offends both ss.
7 and 11 {d) of the Charter for a
number of reasons. The mental
aspect of an offence, or mens
rea, has long been recognized
as an integral part of crime. The
concept is fundamental to our
criminal law. That element may
be minimal in general intent
offences; nonetheless, it exists.
In this case, the requisite mental
element is simply an intention to
commit the sexual assault or
recklessness as to whether the
action will constitute an assault.
The necessary mental element
can ordinarily be inferred from
the proof that the assault was
committed by the accused.

However, the substituted mens
rea of an intention to become
drunk cannot establish the mens
rea to commit the assault. 6
Daviault dealt with a chronic
alcoholic accused whose defence was
that his extreme intoxication put him
into a state where he was no longer
capable of forming any intent
whatsoever, be it specific or general.
The SCC felt that this argument and,
thus this defence, would only be
available in the rarest of cases. Cory
J. stated:

In summary, I am of the view that
to deny that even a very minimal
mental element is required for
sexual assault offends the Charter
in a manner that is so drastic and
so contrary to the principles of
fundamental justice that it cannot
be justified under s. 1 of the
Charter. The experience of other
jurisdictions
which
have
completely abandoned the Leary
rule, coupled with the fact that
under the proposed approach,
the defence would be available
only in the rarest of cases,
demonstrale that there is no
urgent policy or pressing
objective which need to be
addressed. Studies on the
relationship between intoxication
and crime do not establish any
rational link. Finally, as the Leary
rule applies to all crimes of
general intent, it cannot be said
to be well tailored to address a
particular objective and it would
not meet either the proportionality
or the minimum impairment
requirements [in order to justify
its continued support in relation
to the Charterj7 .
Following the release of Daviault,
Parliament enacted s. 33.1 of the CC
to deal with the defence of self-induced
intoxication. 8
The intoxication
defence, in certain circumstances, is
now limited; moreover, it is unavailable
to an accused charged with certain
types of offences. For the section to
be operative the offence must include,
as an element of the offence, an

assault or any other interference or
threat of interference by the accused
with the bodily integrity of another
person. If, during the commission of
the offence, the accused lacked the
general intent or the voluntariness
required to commit the offence by
reason of self-induced intoxication, the
intoxication defence is negated. A
further requirement is that during the
commission of the offence the
accused must depart markedly from a
noted standard of care. That standard
of care, noted in ss. (2), is defined as:
A person departs markedly from
the standard of reasonable care
generally recognized in Canadian
society and is thereby criminally
at fault where the person, while
in a state of self-induced
intoxication that renders the
person unaware of, or incapable
of consciously controlling, their
behaviour,
voluntarily or
involuntarily interferes or
threatens to interfere· with the
bodily integrity of another person.
While it is, as yet, unknown, how
the courts will deal with this section in
relation to all of the general intent type
offences, the enactment makes it clear
that the defence will no longer be
available in cases of sexual assault like
that in Daviault.
Specific Intent Offences

In cases where the Crown must
establish a specific intent on the part
of the accused to have done the
charged act, the burden on the Crown
is somewhat greater than for general
intent offences. When dealing with the
issue of intoxication in specific intent
offences, the courts in Canada, since
the early part of this century, have
followed English precedent and held
that intoxication was irrelevant save
where it could be shown that the
intoxicant had removed the accused's
capacity to form the necessary intent.9
The question, until recently, was
whether the accused, given his or her
state of intoxication, was capable of
forming the specific intent required for
the offence? That issue was revisited

by the SCC in 1996 in R. v.
Robinson. 10
In determining in Robinson that the
prior rules offended the Charter the
firmly established new guidelines
when dealing with the issue of
intoxication. First, it must be
established that there is some basis
for a defence based on intoxication:

sec

[B]efore a trial judge is required
by law to charge the jury on
intoxication, he or she must be
satisfied that the effect of the
intoxication was such that its
effect might have impaired the
accused's
foresight
of
consequences sufficiently to
raise a reasonable doubt. Once
a judge is satisfied that this
threshold is met, he or she must
then make it clear to the jury that
the issue before them is whether
the Crown has satisfied them
beyond a reasonable doubt that
the accused had the requisite
intent. In the case of murder the
issue is whether the accused
intended to kill or cause bodily
hard with the foresight that the
likely consequence was death. 11
(emphasis in original)
In other words, before the defence
can even be put to a jury there must
be an air of reality to the defence. If
that is the case, then the issue of intent
becomes one of fact; has the Crown
established beyond a reasonable
doubt that the accused committed the
offence with the required intent. As
Lamer C.J.C. noted, "it is my opinion
that intoxication short of incapacity will
in most cases rarely raise a
reasonable doubt in the minds of
jurors". 12
When the defence of intoxication
is employed by an accused in an
indictment requiring proof of specific
intent it is particularly important the
trial judge properly instruct on that
issue. In particular, care must be
taken that the jury does not ignore the
intoxication
defence
and
over-emphasize the idea that a "sober
and sane person" usually intends the
natural and probable consequences
of her or his actions.

That matter was made very clear in
two recent B.C. cases on this issue,
R. v. Henry and Riley13 and R. v.
Frechette. 14 In Henry and Riley the
BCCA ordered a new first degree
murder trial where the trial judge failed
to properly instruct the jury on the issue
of intoxication. In Frechette, released
within days of the Henry and Riley
decision, a separate three judge BCCA
came to a similar conclusion when
dealing with a charge of second degree
murder. As the Court noted:
... the trial judge did not expressly
draw a link between the common
sense inference and the effect of
intoxication on that inference. In
other words, he did not instruct
the jury that evidence of
intoxication could rebut the
common sense inference [that a
sober and sane person could not
have committed the act in question
without the required intent]. 15
Conclusion

The issue of intoxication cannot be
dismissed during the investigative stage
of any offence. Investigating officers
must thoroughly document any
evidence or observation that may relate
to an accused's state of intoxication.
Consideration should also be given to
the use of other investigative aids (e.g.
breathalyzer).

Endnotes:
R. v. Leary(1978), 33 C.C.C. (2d) 473
(S.C.C.).
2
· R. v. 8emard(1988), 45 C.C.C. (3d) 1
(S.C.C.).
3 · Ibid., at 37.
4 · Ibid., at 36.
5 · R. v. Daviault, [1994] 3 S.C.R. 63.
6 · Ibid., at approx. 79.
7
· Ibid., at approx. 80.
8
· s.c. 1995, c. 32, s. 1.
9
· MacAskill v. The King, [1931) S.C.R. 330.
10
· R. v. Robinson, [1996] S.C.R. 683.
11
· Ibid., at para. 48.
12
· Ibid., at para. 52.
13 · R. v. Henry and Riley(19January1999),
Van Reg. 0022.99 (B.C.C.A.).
14· R. v. Frechette (27 January 1999), Vic. Reg.
0046.00 (B.C.C.A.).
15
· Ibid., at para. 20.
1·

3

CONSENT SEARCHES
Paul W. Janzen, LLB. (Barrister & Solicitor)
Burns, Fitzpatrick, Rogers & Schwartz

Introduction
It is not uncommon for police
officers in the course of their duties to
rely on the consent of an individual to
conduct a search. Such consent is
often routinely relied upon by police
officers to search individuals (i.e.
asking an individual to empty out his
or her pockets), to search an
automobile (i.e. asking an individual
to open the trunk), or even to search
a residence or room. While reliance
on the consent of an individual may
have certain practical advantages, it
is not without its pitfalls for the unwary
police officer. The purpose of this
paper is to canvas the factors
considered by the courts when
considering whether or not the
investigating officer has obtained valid
and proper consent to conduct a
search.
Two Approaches
A review of the case law reveals
two divergent views concerning what
constitutes valid and effective consent
to a police search. The first approach
focuses on the voluntariness of the
decision to consent to the search.
According to this narrow view, consent
simply means that the individual "made
a conscious and voluntary choice,
free from threats, inducements or
intimidation." 1 This test for determining
whether a person has consented to a
police search is analogous to that
applied when determining the
admissibility of a confession. The
second approach posits that mere
voluntariness is not sufficient to
establish valid consent to a police
search . Rather, the individual must
also have some appreciation of the
potential consequences of giving the
consent so that he or she might make
a meaningful decision to give consent
or not. ·2 This latter approach clearly
places a more onerous burden on
police officers when they seek to rely
on consent to conduct a search.

4

Photograph by Justice Institute of BC· Media Centre

In Search and Seizure Law in
Canada, the authors describe these two
divergent views of consent as follows:
Consent to a search may mean
that the consenter made a free
choice, unrestrained by threats or
inducements, and voluntarily
allowed the search to occur. On
the other hand, consent to a
search may mean that the
consenter, in full knowledge of the
legal right to refuse and knowing
the consequences of consent,
voluntarily waives the right not to
be searched. 3
The balance of this article will discuss
the cases of R. v. Wills4 and R. v.
Borden 5 , two leading decisions on
consent searches. It is clear from a
review of these two decisions that the
courts in Canada have rejected the
narrow "voluntariness" test in favour of
the broader ''waiver'' test when dealing
with the issue of consent searches.

Wills and Borden
At issue in R. v. Wi/Js, was whether
or not a breath sample obtained

''voluntarily" from the driver of a motor
vehicle could be admitted at trial. Mr.
Wills was the driver of a motor vehicle
involved in a fatal motor vehicle
accident. Though the investigating
officer smelled alcohol on Mr. Wills'
breath, he did not have any reason to
believe that he was impaired. When
Mr. Wills' admitted that he may have
had something to drink earlier that
evening, one of the investigating
officers demanded that he provide a
breath sample for an approved
roadside screening device. The
roadside screening device registered
a ''warn", indicating that Mr. Wills had
a blood alcohol concentration of
between .05 and .1 milligrams of
alcohol. Based on the test result and
his observations, the investigating
officer concluded that Mr. Wills was
likely not over the legal limit when the
accident occurred. He decided that
he would not be laying any drinking/
driving related charges, but had not
ruled out laying other motor vehicle
related charges.
Though he did not have any
grounds to demand that Mr. Wills
submit to a breathalyser test, the
investigating officer suggested that

Mr. Wills take a breathalyser test to
provide evidence in the event of a civil
action. He advised Mr. Wills that the
breathalyser test would allow Mr. Wills
to establish his exact blood alcohol level.
Before Mr. Wills took the breathalyser
test, the investigating officer said "Tim,
you understand that you don't have to
provide this sample and you are doing
this of your own free will." Mr. Wills
replied that he understood. Mr. Wills
provided the breath sample for the
breathalyser test, and a reading of 1.28
milligrams of alcohol was registered. It
was subsequently determined that the
roadside screening device used in the
initial test was not functioning properly
because of inaccurate calibration.
The issue before the Ontario Court
of Appeal was whether or not Mr. Wills
had validly consented to the taking of a
breath sample. Doherty J.A. stated the
issue as follows: "There is no doubt that
Mr. Wills agreed to the taking of the
sample. The question is, was his
consent an effective one or was it vitiated
by non-disclosure or innocent
misrepresentation of the material
facts?" 6
If the test to be applied was simply
that of voluntariness, it was clear on the
evidence that the Crown had discharged
the burden of establishing that Mr. Wills
had given valid consent to provide a
breath sample: Mr. Wills was aware that
he was under no obligation to provide a
breath sample; he made the decision to
provide a breath sample freely, and after
consulting with his father; and the police
conduct did not amount to inducement,
coercion or oppression. However,
Doherty, J.A. rejected the narrow test
of voluntariness, stating:
In my opinion, the requirements
established by the Supreme Court
of Canada for a valid waiver of a
constitutional right, are applicable
to the determination of whether an
effective consent was given to an
alleged seizure by police. The
fairness principal which has
defined the requirements of a valid
waiver as they relate to the right to
a trial within a reasonable time, or
the right to counsel, has equal
application to the right protected
by s. 8. In each instance, the

authorities seek an individual's
permission to do something
which, without that permission,
they are not entitled to do. In
such cases, fairness demands
that the individual make a
voluntary and informed
decision to permit the intrusion
of the investigative process
upon his or her constitutionally
protected rights. 7
When the police rely on the
consent of an individual as their
basis for a search and seizure,
Doherty, J.A. held that the Crown
must establish, on the balance of
probabilities, that:
1. There was consent, expressed or
implied;
2. The giver of the consent had the
authority to give the consent in
question;
3. The consent was voluntary in the
sense that it was not the product
of police oppression, coercion or
other external conduct which
negated the freedom to choose
whether or not to allow the police
to pursue the course of conduct
requested;
4. The giver of the consent was
aware of the nature of the police
conduct he or she was being
asked to consent to;
5. The giver of the consent was
aware of his or her right to refuse
to permit the police to engage in
the conduct requested; and
6. The giver of the consent was
aware
of
the
potential
consequences of giving that
consent. 8
It was clear on the facts of the
case that the Crown had established
that the first five requirements had
been met. However, Doherty, J.A.
held that the Crown had failed to
establish that Mr. Wills was
sufficiently aware of the potential
consequences of consenting to
provide a breath sample.
Specifically, Mr. Wills was not
informed that the breathalyser test
results would be used to assist the
investigating officer in his ongoing

investigation into the accident, nor was
he aware that one of his passengers
had died and another was seriously
injured. Further, Mr. Wills was misled
as to the potential criminal
consequences of taking a breathalyser
test by the results of the roadside
screening device. Thus, Mr. Wills' lack
of appreciation of the consequences of
providing a breath sample vitiated his
consent.
In Borden, the SCC considered the
test adopted by Doherty J.A. in Wills.
The accused was arrested pursuant to
a warrant issued in connection with a
sexual assault on a woman at a motel
("December Assault"). No sexual
intercourse or ejaculation occurred in
the December Assault, but the police
seized a number of items from the motel
room, including two strands of hair. The
complainant had seen Mr. Borden on
previous occasions, and was able to
identify him in a photo line-up as her
assailant. At the time of his arrest, Mr.
Borden was also a suspect in a sexual
assault of an elderly woman in her home
("October Assaulf'). In that case, the
complainant was unable to identify her
assailant. However, the police seized a
comforter stained with semen.
Mr. Borden was cooperative with the
investigating officers throughout their
investigation. He made an oral
exculpatory statement in connection
with the December Assault. Contrary
to his counsel's advice, he subsequently
agreed to reduce his oral statement to
writing. He also cooperated in providing
samples of scalp and pubic hair. The
officers then debated amongst
themselves whether to request a blood
sample from Mr. Borden. Iacobucci J.
noted that "[t]he officers testified that,
while the sample had some utility in the
investigation of the motel offence, they
wanted it "mainly" or "mostly'' for the
investigation of the October assault of
the elderly woman, in order to compare
the blood with the semen found on her
comforter." 9
Mr. Borden complied with the
investigating officers' request to provide
a blood sample. He signed a written
consent form permitting the officers "to
take a sample of my blood for purposes
relating to their investigations". Apart
from the use of the plural

5

"investigations", Mr. Borden was given
no indication that the blood sample
was being sought for use in the
investigation of the October Assault,
nor was he ever informed by the
investigating officers that he was a
suspect in the October Assault. The
blood sample was analyzed and
found to match the semen found on
the comforter, and Mr. Borden was
charged with the sexual assault of the
elderly woman.
The principal issue before the SCC
was whether or not Mr. Borden had
validly consented to the seizure of his
blood in relation to the police
investigation of the October Assault.
The Crown, relying on the decision
of the SCC in R. v. Mellenthin 10 ,
submitted that the proper (i.e. narrow)
test to apply in assessing whether an
individual has consented to a police
search was one of voluntariness.
In Mellenthin the SCC considered
a search conducted during a road
block set up as part of a program to
check motor vehicles. Although the
police officer saw neither liquor or
drugs inside the vehicle, he saw an
open gym bag on the front seat beside
Mr. Mellenthin. Inside the gym bag was
a small brown bag with a plastic
sandwich bag in it. In response to
the police officer's questioning, Mr.
Mellenthin opened the bag. The
officer saw that the bag contained
glass viles which he testified were
commonly used to store cannabis
resin. As a result, the officer believed
he had reasonable probable grounds
to believe that narcotics were present
in the vehicle. He conducted a further
search of the vehicle and found viles
of hash oil and marijuana joints.
In considering whether the opening
of the gym bag by Mr. Mellenthin
amounted to consenting to a search,
Cory J. stated:
It has been seen that as a result
of the check stop the appellant
was detained. The arbitrary
detention was imposed as soon
as he was pulled over. As a result
of that detention, it can
reasonably be inferred that the
appellant felt compelled to
respond to questions put to him

6

by the officer. In those
circumstances, it is incumbent
upon the Crown to address that
the person detained had indeed
made an informed consent to the
search based on an awareness
of his rights to refuse to respond
to the questions or to consent
to the search. There is no such
evidence in this case. In my view,
the judge was correct in her
conclusion that the defendant felt
compelled to respond to the
police questions. In the
circumstances, it cannot be said
that
the
search
was
consensual. 11 (emphasis added)
In Borden, Iacobucci, J. rejected
the Crown's submission that the
highlighted portion of this passage from
Mellenthin supported the adoption of
the narrow ''voluntariness" test:
With regard to the test to be
applied, I cannot find that the
decision of this court in Mellenthin,
supra, is of assistance to the
appellant. While it is true that
Cory, J. in that case stated at page
624 that it was, "... incumbent upon
the Crown to deduce evidence that
the person detained had indeed
made an informed consent to the
search based upon awareness of
his rights to refuse to respond to
the questions or to consent to the
search", I cannot interpret this
assertion as purporting to set out
an exhaustive state of a general
test for the requirements for a valid
consent to a police search. 12
Iacobucci, J. noted that it was not
necessary in Mellenthin to consider
whether the accused needed to be
aware of the consequences of his
consent, as the real issue was simply
whether or not the accused knew
whether or not he was required to show
the officer the contents of his bag.
Iacobucci, J. favoured the broad
approach adopted in Wills:
In order for a waiver of the right
to
be
secure
against
unreasonable seizure to be
effective, the person purporting

to consent must be possessed of
the requisite informational
foundation
for
a
true
relinquishment of the right. A right
to choose requires not only the
volition to prefer one option over
the other, but also sufficient
available information to make the
preference meaningful. This is
equally true whether the individual
is choosing to forgo consultation
with counsel, or choosing to
relinquish to the police something
which they otherwise have no
right to take. 13
Iacobucci, J. went on to
consider the Crown's alternative
argument that, even if the Court
adopted the more broader ''waiver" test
of Wills, the Crown had nonetheless
established that Mr. Borden was
sufficiently
aware
of
the
consequences of consenting to
provide a blood sample. Specifically,
the Crown submitted that it was
reasonable to infer that Mr. Borden
knew that the police had an open
investigation concerning the October
Assault, since he committed the
assault, that he had left semen at the
scene, and that he was aware that it
was possible to compare his blood
sample to semen samples. Iacobucci
J. rejected this argument, noting that
"the logical extension of this argument
would be that the protections afforded
by the Charter no longer apply
whenever the person arrested is guilty
of the offence for which he or she has
been detained."14
In considering the degree of
awareness of the consequences that
the Crown must establish, Iacobucci
J. noted:
The degree of awareness of
consequences of a waiver of the
s. 8 right required of an accused
in a given case will depend on
the particular facts. Obviously, it
will not be necessary for the
accused to have a detailed
comprehension of every possible
outcome of his or her consent.
However,
his
or
her
understanding should include the
fact that the police are also

planning to use the product of the
seizure in a different investigation
from the one for which he or she
is detained. Such was not the
case here. Therefore, I conclude
that the police seized the
respondent's blood in relation to
offence forming the subject
matter of this charge. 15

suspect." 16 Because of the police
failure to advise Mr. Borden of their
intentions, Iacobucci J. held that the
police could not rely on Mr. Borden's
consent to provide a blood sample as
he was not sufficiently aware of the
consequences of consenting to the
procedure.

Conclusion
In applying this test to the facts of
the case, Iacobucci J. also
commented critically on the failure of
the investigators to specifically
disclose to Mr. Borden their intention
to use the blood sample in their
investigation of the October Assault.
Given the circumstances in the case,
Iacobucci, J. held that "it was
incumbent upon the police, at a
minimum, to make it clear to the
respondent that they were treating his
consent as a blanket consent to the
use of the sample in relation to other
offences in which he might be a

In conclusion, in Wills and
Borden, the courts clearly rejected the
narrow ''voluntariness" approach to
consent in favour of the broader
"waiver" test. Thus, when police
officers seek to rely on the consent
of an individual to conduct a search,
they must go further than simply
satisfying themselves that the
individual is acting freely and
voh.,mtarily. Rather, they must also
establish the individual was aware of
the consequences of consenting to
the search. Although Iacobucci, J.

did not specifically adopt the six point
test set out by Doherty J.A. in Wills, a
police officer who seeks to rely on the
consent of an individual as the basis
for a search ought to ensure that these
criteria are met.

Endnotes
'· Scott C. Hutchinson et al., Search & Seizure
Law in Canada (Toronto: Carswell) 1993
(Looseleaf) at 7-1.
2
· Ibid.
3
Ibid.
4
(1992), 12 C.R. 458 (Ont.CA).
5
· (1994), 33 C.R. (4th) 14 (S.C.C.).
6
· Supra, note 4 at 71 .
7
· Ibid., at 74.
8
· Ibid., at 77-78.
9
Supra, note 5 at 154 - 55.
10
(1992), 16 C.R. (4th) 273.
11
· Ibid., at 280-81.
1
2. Supra, note 5 at 157.
13
Ibid., at 158.
1
• · Ibid., at 158 - 59.
15
Ibid., at 159-60.
16
· Ibid., at 159.

If You Call 911, They Can Come:
Entering Residences in Response to 911 Calls
Craig S. MacMillan, LL.B., Ph.D. (Barrister and Solicitor)

Introduction
Recently, in R. v. Godoy, 1 the
Supreme Court of Canada provided
some important instruction to the police
when entering residences in response
to 911 calls. The following is a brief
overview of Godoy and its application
to 911 calls.
Facts
Police responded to a radio call of
911 "unknown trouble" (i.e. phone call
terminated before anyone spoke) at an
apartment. Such calls were deemed
by the police agency to be second in
priority behind officer in distress calls.
Based on the 911 trace, officers were
dispatched to the originating address
of the call. Due to the unknown feature
of such calls, two primary and two back-

up officers were assigned to the call.
The police arrived atthe apartment and
knocked on the door. The door was
opened partially by the accused and
when asked about the call, he stated
there was no problem. When asked
by one officer if they could enter to
investigate, the accused attempted to
close the door. One officer stopped
the door from being closed and they
forcibly entered the apartment. Once
inside, the police could hear a woman
crying and found the common law
spouse of the accused in a bedroom
in a fetal position, sobbing. Swelling
was observed over the left eye of the
woman and she stated that the
accused had hit her. Based on the
circumstances, the police arrested the
accused for assault. The accused
resisted arrest and a finger of one
officer was broken during the

subsequent struggle. The accused was
also charged with assaulting the police
officer. At trial, the judge dismissed
the assault police officer charge
asserting that the entry by the police
into the apartment was not authorized,
and as a result, the police action and
arrest were illegal.

Analysis
The SCC noted public policy
requires that the police have the
authority to investigate 911 calls, but
the circumstances of each case will
determine whether the police can enter
a private dwelling house in response to
such calls. If the conduct of the police
constitutes a prima facie interference
with a person's liberty or property, two
questions arise for determination under
the Waterfield Test2 : 1) did the police

7

"conduct fall within the general scope
of any duty imposed by statute or
recognized at common law"; and 2)
did the police "conduct, albeit within
the scope such a duty, involve an
unjustifiable use of powers associated
with the duty."3
On the facts of this case, there
was no question the police conduct
constituted an interference with the
accused's liberty and property. The
first question then is whether or not
the police had statutory or common
law authority to enter the apartment?
The SCC examined the provincial
legislation governing the police, and
found that it explicitly stated "A police
officer has the powers and duties
ascribed to a constable at common
law.'14 Further, the SCC has previously
held that 1) preservation of the peace,
2) prevention of crime, and 3) the
protection of life and property are
duties that the police have at common
law. 5
The SCC observed that:
The point of the 911 emergency
response system is to provide
whatever assistance is required
in the circumstances of the call.
In the context of a disconnected
911 call, the nature of the
distress is unknown .... [l]t is
reasonable, indeed imperative,
that the police assume that the
caller is in some distress and
requires immediate assistance.
To act otherwise would seriously
impair the effectiveness of the
system and undermine its very
purpose. The police duty to
protect life is therefore engaged
whenever it can be inferred that
the 911 caller is or may be in
some distress, including cases
where the call is disconnected
before the nature of the
emergency can be determined.6
The next question, of course, is
whether the conduct of the police in
the circumstances of this case
constituted an unjustifiable use of

8

police powers? The SCC accepted
that the justifiability of a police officer's
conduct will depend on a number of
factors, including 1) the duty being
performed, 2) the extent to which some
interference with individual liberty is
necessitated in order to perform the
duty, 3) the importance of the
performance of that duty to the public
good, 4) the liberty interfered with, and
5) the nature and extent of the
interference. 7
In the circumstances of this case,
found there was no other
the
reasonable alternative to ensure that
the disconnected caller received
assistance in a timely manner, and
rejected as "impractical" and
"dangerous" the submission of the
accused that the officers could have
questioned neighbours or waited in the
corridor for signs of further distress. 8
As the Court rightly observed, "If a 911
caller is in serious danger and is
unable either to communicate with the
911 dispatcher or answer the door
upon police arrival, the caller's only
hope is that the police physically locate
him or her within the apartment and
come to his or her aid."9
While there is an unquestionable
right to privacy in a residence, the
interests of "dignity, integrity and
autonomy" of the caller under the
Charter are also at stake when a 911
call is made. As such, the interest of
a person who makes a 911 call is
"closer to the core of the values of
dignity, integrity and autonomy than
the interest of the person who seeks
to deny entry to police who arrive in
response to the call for help."10 The
Court concluded that the public
interest in maintaining an effective
emergency response system is
obvious, which permits some limited
intrusion to protect life and safety: the
police have authority to be on private
property to investigate the 911 calls,
locate the caller (which may require a
limited search), determine the reasons
for making the call, and provide any
assistance that may be required, but
they do not have permission to
generally search premises or

sec

otherwise intrude on privacy or
property.11
In this case, the police had a duty
to respond to the 911 call, which
extended to finding out the reason for
the call. To meet the duty, the police
could not accept the accused's
assertion that there was no problem,
and the police had the power to enter
at common law to verify if there was
an emergency. The attempt to close
the door by the accused and deny the
police entry contributed to the
appropriateness of the forced entry.
Once entry had been obtained, the
police heard crying and they had a
duty to search the apartment to find
the source.

Conclusion
It is refreshing to have the SCC
provide a relatively clear, concise and
realistic judgement on the authority of
the police to respond to emergency
situations. Instead of circumscribing
the police authority to respond to
has
emergency situations, the
unequivocally endorsed the authority
of the police to enter residences in
response to 911 calls where the
circumstances dictate such a course
of action. However, as the SCC
cautioned, this is not an unfettered
authority and the interference with

sec

liberty and property by the police
must be necessary for carrying out
the police duty and it must be
reasonable.
Endnotes:
1

(4 February 1999) No. 26078 (S.C.C.).
R. v. Waterfield, [1963] 3 All E.R. 659.
3
· Supra, note 1 at para. 12.
4
· Police SeNices Act, R.S.O. 1990, c. P 15,
s. 42(3).
s. Supra, note 1 at para. 15.
6
· Ibid., at para. 16.
1
· Ibid., at para. 18 citing Doherty J.A. in R. v.
Simpson (1993), 79 C.C.C. (3d) 482 (0.C.A.) at
499.
2

·

·

8
·
9
·
10

Ibid.
Ibid.
· Ibid., at para. 19.
11
· Ibid., at para. 22.