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

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Be Smart & Stay Safe

Volume 13 Issue 3

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Volume 13 Issue 3 - May/June 2013

Highlights In This Issue

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

‘Smart’phone Data Dump One Month After Arrest
Unreasonable

5

Reasonable Inference May Be Taken From
Information

7

Sharing CRA Documents OK

9

Jurisprudence Jolt

10

Policing Across Canada: Facts & Figures

19

All Circumstances To Be Considered In s. 10(b)
Analysis

23

Reasonable Grounds Does Not Require 50%
Statistical Probability

25

Reasonable Grounds Viewed Through Officer’s Lens

28

Arrestee Waived Right To Counsel: No s. 10(b)
Breach

29

Canadian	
 Identification	
 Society	
 Annual	
 
Educational	
 Conference

Physical Search May Accompany Drug Dog Hit

31

September 23-26, 2013
Vancouver, British Columbia

Detention: Officer’s Non-Communicated Intentions
Not Relevant

34

Canadian Forces Military Police National Motorcycle
Relay Ride

37

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

34th Canadian	
 Congress	
 on	
 Criminal	
 Justice

October 2-5, 2013
Vancouver, British Columbia

24th	
 Annual	
 Problem-Oriented	
 
Policing	
 Conference

National	
 Library	
 of	
 Canada	
 
Cataloguing	
 in	
 Publication	
 
Data

October 7-9, 2013
Dayton, Ohio

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

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

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

Graduate Certificates
Intelligence Analysis
or
Tactical Criminal Analysis

see
pages
39-40

www.jibc.ca

Volume 13 Issue 3 - May/June 2013

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

The basics of project evaluation and lessons
learned.
Willis H. Thomas.
Boca Raton, FL: CRC Press, c2012.
HD 69 P75 T477 2012
BIFF: quick responses to high conflict people:
their personal attacks, hostile email and social
media meltdowns.
Bill Eddy.
Scottsdale, AZ: HCI Press, c2011.
BF 637 I48 E33 2011
Blended learning in higher education:
framework, principles, and guidelines.
D. Randy Garrison, Norman D. Vaughan.
San Francisco, CA: Jossey-Bass, c2008.
LB 2395.7 G365 2008
The charisma myth: how anyone can master the
art and science of personal magnetism.
Olivia Fox Cabane.
New York, NY: Portfolio/Penguin, 2012.
BF 698.35 C45 C33 2012
Communication counts [videorecording]: speaking
and listening for results.
CRM Learning; directed by Timothy Armstrong;
written by Sara Judson Brown.
Carlsbad, CA: CRM Learning, c2012.
1 videodisc (19 min.): sd., col.; 4 3/4 in. (DVD) + 1 CDROM.

CD-ROM contains reproducible participant
worksheets on PDFs.

Accompanying leader's guide "provides suggestions
for group training, including one idea that allows
your training audience to interact with the video; as
the video's characters complete the final quiz in
their training course, your trainees are able to
answer the same questions (before they see how the
video's characters respond).
HF 5549.5 C6 C66 2012 D1586
Effective apology: mending fences, building bridges,
and restoring trust.
John Kador.
San Francisco, CA: Berrett-Koehler Publishers, 2009.
BF 575 A75 K34 2009

Essentials of contemporary management.
Gareth R. Jones et al.
Whitby, ON: McGraw-Hill Ryerson, c2010.
HD 31 E79 2010
The geometry of fear: an environmental
perspective on fear and the perception of crime.
by Valerie Spicer.
Burnaby, BC: Simon Fraser University, 2012.
HV 6793 C2 S643 2012
The H factor of personality: why some people are
manipulative, self-entitled, materialistic, and
exploitive - and why it matters for everyone.
Kibeom Lee and Michael C. Ashton.
Waterloo, ON: Wilfrid Laurier University Press,
c2012.
BF 698.3 L43 2012

Harder than I thought: adventures of a twentyfirst century leader.
Robert D. Austin, Richard L. Nolan, Shannon
O'Donnell.
Boston, MA: Harvard Business Review Press, c2013.
HD 57.7 A849 2013
HR manager's guide to background checks and
pre-employment testing.
Adrian Miedema, Christina Hall.
Toronto, ON: Carswell, 2012.
HF 5549.5 E429 M44 2012

PAGE 3

Volume 13 Issue 3 - May/June 2013

An introduction to systematic reviews.
edited by David Gough, Sandy Oliver, James
Thomas.
London; Thousand Oaks, CA: Sage, 2012.
H 62 I587 2012
A manual for writers of research papers, theses,
and dissertations.
Chicago Style for students and researchers / Kate L.
Turabian ; revised by Wayne C. Booth, Gregory G.
Colomb, Joseph M. Williams, and the University of
Chicago Press editorial staff.
Chicago, IL; London: University of Chicago Press,
2013.
LB 2369 T87 2013
Mastering presentations: be the undisputed
expert when you deliver presentations (even if
you feel like you're going to throw up).
Doug Staneart.
Hoboken, NJ: Wiley, c2013.
HF 5718.22 S738 2013
Meeting management challenges [videorecording]:
part 1.
Mississauga, ON: RG Training Resources, 2012.
1 videodisc (11 min.): sd., col.; 4 3/4 in. (DVD).

Every workplace, no matter how successful, has to
deal with difficult situations. But what are the most
effective ways of responding to employe issues? This
presenter-led program guides audiences through a
range of dramatic scenarios, which include personal
interviews with key characters,who describe their
thoughts and feelings as the story unfolds. This is an
ideal resource for any business or manager wanting
greater insight into their employees and the various
strategies for dealing with difficult situations.
HF 5549.5 C6 M448 2012 pt. 1 D1578

Meeting management challenges [videorecording]:
part 2.
M i s s i s s a u g a , O N : R G Tra i n i n g R e s o u rc e s
[distributor], 2012.
1 videodisc (11 min.) : sd., col. ; 4 3/4 in. (DVD).

Workplaces are fast-paced, challenging and diverse
environments that can create conflict and
misunderstanding. Successful resolution of problems

with colleagues is a vital aspect of good
m a n a g e m e n t . Th i s f l y - o n - t h e - w a l l s t y l e
dramatization takes viewers through ways to deal
with the following: unreasonable demands;
individuals who aren't team players; speaking
without thinking; and dealing with poor job
performance.
HF 5549.5 C6 M448 2012 pt. 2 D1579

Pedagogy of the oppressed.
Paulo Freire; translated by Myra Bergman Ramos;
with an introduction by Donald Macedo.
New York, NY: Continuum, c2000.
LB 880 F73 P4313 2000
The privacy advocates: resisting the spread of
surveillance.
Colin J. Bennett.
Cambridge, MA; London: MIT Press, 2010.
JC 596 B46 2010
The sketchnote handbook: the illustrated guide to
visual note taking.
by Mike Rohde.
San Francisco, CA: Peachpit Press, c2013.
LB 2395.25 R64 2013
Supporting students for success in online and
distance education.
Ormond Simpson.
New York, NY: Routledge, 2012.
LC 5800 S55 2012
Threat detector [videorecording] : your role in
preventing workplace violence.
StoneArch Creative.
Irvine, CA: Learning Communications, c2010.
1 videodisc (17 min.): sd., col. with b&w sequences; 4 3/4 in.
(DVD) + 1 CD-ROM.

This program defines threatening behavior and takes
a look at red flag behaviors in the workplace.
Viewers will be given a chance to test their own
"threat detector" capabilities. The accompanying CDROM contains a facilitator guide.
HF 5549.5 E43 T47 2010 D1580

PAGE 4

www.10-8.ca

Volume 13 Issue 3 - May/June 2013

ʻSMARTʼPHONE	
 DATA	
 DUMP	
 
ONE	
 MONTH	
 AFTER	
 ARREST	
 
UNREASONABLE

of the power to search incident to arrest and that any
evidence of the cell phone contents ought to be
excluded under s. 24(2) of the Charter.

R. v. Hiscoe, 2013 NSCA 48

The judge found the examination of the cell phone
on arrest to view the recent text messages and the
later transcribing of those messages that same day
were within the lawful scope of the police authority
to search incident to the accused’s arrest for
possession of a controlled substance for the purpose
of trafficking. Those searches did not violate s. 8 of
the Charter and the evidence retrieved at those times
was admissible. The complete content download or
“data dump,” however, did go beyond the scope of a
search incident to arrest, breached s. 8 and was
excluded. In the judge’s opinion, the one month
delay in searching the cell phone significantly
reduced any connection with the arrest. Further, he
found the police made no effort to limit or focus
their search in the separate locations within the cell
phone. Instead, a full “data dump” was done for the
purpose of furthering their investigation, not as a
search incident to arrest. After limiting himself to the
evidence of the admissible text messages, the judge
acquitted the accused of the trafficking related
charge, but entered a conviction on the lesser and
included offence of simple possession.

The accused was arrested for
possessing a controlled substance for
the purpose of trafficking. While
under surveillance, police saw an
exchange between him and the
driver of another vehicle. They found cash in the
other driver’s vehicle and a bag of cocaine on the
ground between the two vehicles. During the arrest
procedure a police officer seized the accused's
“smart” cell phone which was on the driver’s seat of
his car. It was not password protected. The officer
opened the cell phone and conducted a cursory
review of recent text messages. Later that evening,
the officer again looked at the texts and transcribed
them. Then, about a month later, the officer took the
cell phone to the Technological Crime Unit and the
entire contents of the cell phone were downloaded
and placed on a DVD. This information included a
contact list, phone logs, a record of calls to and from
the cell phone, the content of incoming and
outgoing text messages, and half a dozen
photographs. The accused was charged with
possessing cocaine for the purpose of trafficking.

Nova Scotia Provincial Court
The police officer testified that he seizes
cell phones of people arrested for drug
trafficking because the phones will often
contain score sheets, records of drug
debts, contacts of other persons, text messages and
phone calls in the time leading up to the offence.
This information can indicate the negotiation of drug
prices and amounts, meeting places and other
details, which can be time sensitive as they may
disclose possible stash or weapon locations. The
officer also explained that information on cell
phones can be deleted remotely. But he agreed there
were no exigent circumstances preventing him from
getting a search warrant before he transcribed the
messages. Rather, he felt he did not need to get a
warrant. The accused argued that the searches of his
cell phone were unreasonable, exceeded the scope

Nova Scotia Court of Appeal
The Crown appealed the trial
judge’s s. 8 ruling on the data
dump because, in its view, had the
excluded evidence been admitted
the accused may not necessarily have been
acquitted of the trafficking charge. The Crown
asserted that once the police lawfully seized the cell
phone incident to arrest, they lawfully possessed all
the information contained in it and could search it
without a warrant and without restriction. The
Crown suggested in its factum:

PAGE 5

Where the police lawfully arrest a person for an
offence, and seize the arrestee’s smartphone or
other device in the reasonable expectation of
finding evidence of the offence, the power to
search incident to arrest includes the ability not
only to seize and conduct a cursory examination of
the smartphone but also the ability to later perform
a more detailed retrieval of its contents. A further

Volume 13 Issue 3 - May/June 2013
search warrant is not required. The important
limiting factor is that any examination of data cursory or otherwise - must truly be authorized by
the original power of search incident to arrest:
namely, in pursuit of a reasonable basis to believe
that the examination will afford evidence of the
original offence.

Side Bar:

Passwords and Protection Features

Justice Oland, authoring the Nova Scotia Court of
Appeal’s decision, concluded that the warrantless
and complete content download or “data dump” of
the cell phone did infringe the accused’s s. 8 rights
because it went beyond the scope of a search
incident to arrest. In doing so, Justice Oland first
examined search incident to arrest and identified the
following points:
•

s. 8 of the Charter protects individuals from
unjustified state intrusions upon their privacy.

•

Warrantless searches are presumptively
unreasonable.

•

The Crown has the burden of showing that, on
a balance of probabilities, a warrantless search
was reasonable = authorized by law + the law
itself is reasonable + the manner in which the
search was carried out is reasonable.

•

The common law power of search incident to
arrest is a well-recognized exception to the
warrantless search presumption. Such searches
do not require prior judicial authorization.

•

Searches incident to arrest are subject to
limitations. The search must have a valid
objective (ensuring the safety of the police and
public, preserving evidence or discovering
evidence) and be truly incidental to the arrest.
Although police do not need reasonable and
probable grounds to search, they must have
some reason related to the arrest for conducting
a search.

•

Delay and distance between the arrest and
search do not automatically preclude a search
from being incidental to arrest provided the
police offer a proper explanation for the delay
or distance.

He then noted there were three different views on
searches of cell phones following arrest:

Justice Oland noted that password protection, if
engaged, would not be a significant factor nor
conclusive in determining whether a search warrant
would be required to search a cell phone. “While
the presence or absence of a password or lock may
be another relevant factor in determining whether a
search incident to arrest is lawful or within its
proper parameters, in my view it should not be
determinative,” he said. “Whether such a security
feature exists or is turned on is not substantively
helpful in determining the privacy interests of the
accused in the contents of his cell phone, nor the
propriety of a police search. Just because a password
is not on at the very moment the police seize a cell
phone cannot mean that the state is welcome and
free to roam through its contents.”
1. the police cannot make even a cursory
inspection of the cell phone without a warrant;
2. the police can examine the entire contents of
the cell phone so long as they are genuinely
looking for evidence of the offence and have a
reasonable basis to believe they will find it; or
3. the police can only make a cursory warrantless
inspection of the cell phone. Any examination
beyond a cursory examination exceeds the
power of search incident to arrest and a search
warrant should be obtained.
In this case, the Court of Appeal concluded the trial
judge did not err. He legitimately considered the
substantial delay between arrest and search (a
month) as a factor in deciding whether the search
was incident to arrest is lawful. “Although the
temporal separation is a rebuttable presumption, at
trial the Crown presented no evidence whatsoever
explaining the delay in examining the cell phone
further,” said Justice Oland. As well, the trial judge
properly inferred that there was a heightened
expectation of privacy in the smartphone, given the
variety and breadth of information that can be stored
in it. Here, the police made no effort to limit the
scope of their search of the cell phone, instead doing
a full content download which even captured over a
dozen messages that came to the phone after it was

PAGE 6

Volume 13 Issue 3 - May/June 2013
seized. The trial judge was aware of the
compartmentalization of information on a cell
phone and the problems of over seizure. He
emphasized that police did not try to minimize or
focus the search. Rather, they simply retrieved the
full contents of the smartphone. This was all done
even though the police said that there were no
exigent circumstances. The warrantless full content
download of the accused’s cell phone breached s. 8
of the Charter and the accused’s appeal was
dismissed.
Complete case available at www.canlii.org

CONTINUITY	
 CRITICAL:	
 
POSSESSION	
 CHARGE	
 NOT	
 
PROVEN
R. v. Panrucker, 2013 BCCA 137

appeal that the trial verdict was unreasonable. Here,
knowledge and control of the drugs was not the only
rational inference that could be drawn from the
admissible evidence.
The guard testified that the accused was the only
inmate resident in cell 5 for the week, but he only
worked at the jail for 2 ½ days. He also said he
cleaned and searched the cell the day before the
accused’s arrival, however he was not on duty when
the accused was booked into cells. Nor did he have
any personal information about what may have
happened in the cell between the time he cleaned it
and the accused’s arrival. The guard could also not
say whether the accused spent his entire time in cell
5 or whether anyone else was in it when he was not
on duty.
Complete case available at www.courts.gov.bc.ca

The accused was booked into police
cells on December 22, occupying
cell 5. On December 29 he left the
cell to take a shower. A prison guard
searched the cell and discovered a
plastic bag containing cocaine underneath the
mattress. He was charged with possession under the
Controlled Drugs and Substances Act.

British Columbia Provincial Court
Since the drugs were not found in the
accused’s actual possession the Crown
relied on circumstantially proving
constructive possession – s. 4(3)(a)(ii) of
the Criminal Code. The judge found the guard to be
“very careful and conscientious,” “meticulous in
doing his job,” and “scrupulous in searching a cell
once the occupant has left even temporarily.” The
judge was satisfied that the accused was the sole
occupant of cell 5 and the only reasonable inference
from the evidence was that the cocaine found was in
his control and knowledge. He was convicted of
possessing the cocaine.

British Columbia Court of Appeal
The accused’s conviction was set
aside and an acquittal was
entered. The Crown conceded on

REASONABLE	
 INFERENCE	
 MAY	
 
BE	
 TAKEN	
 FROM	
 INFORMATION
R. v. Murray, 2013 ONCA 173
Police received a 911 call about a
single vehicle accident in the early
morning hours. They found an
overturned vehicle on its roof, badly
damaged and in a ditch. Two
occupants were trapped in it. The accused was
hanging from his seatbelt in the driver’s seat and his
injured 90-year-old mother was hanging upside
down from her seatbelt in the front passenger seat.
The accused was extricated from the vehicle and
transported to the hospital along with his mother. A
police officer also attended the hospital to continue
the investigation. Samples of the accused’s blood
were taken for medical purposes at the hospital. The
police subsequently obtained a search warrant for
the production of the hospital’s medical records that
revealed the analysis of the accused’s blood alcohol
concentration (BAC). Test results revealed his BAC at
the time of the accident was somewhere within the
range of 240mg% and 395mg%. He was charged
with impaired driving causing bodily harm, driving
over 80mg% causing bodily harm and dangerous
driving.

PAGE 7

Volume 13 Issue 3 - May/June 2013

Ontario Superior Court of Justice
The accused argued, among other
grounds, that the search warrant obtained
for the production of medical records
should be quashed. In part, he suggested
the officer failed to set out reasonable grounds in the
Information to Obtain (ITO). Furthermore, he
asserted that his BAC could not be used to prove the
charges because the capability, accuracy and
reliability of the hospital testing equipment had not
been established. The hospital lab technician only
testified that her job was to analyze the specimens,
run the machines and report to the doctor. She did
not provide evidence about the type of instrument
used to analyze the samples nor any details about its
maintenance or the safeguards in place.
The judge dismissed both of these submissions. First,
he found the warrant was properly issued. Second,
he found the test results were accurate and reliable
on the criminal standard of proof (beyond a
reasonable doubt):

the hospital would test or had tested his blood’s
BAC. The Court of Appeal, however, disagreed. It
found such facts could be inferred from the
evidence:
In our view, the details of the incident recited in
the information to obtain, including evidence
that alcohol was present in the vehicle, the
behaviour of the [accused] and the fact that the
[accused’s] breath smelled of alcohol, when
combined with his presence at the emergency
department for treatment, were sufficient to
provide a basis for a reasonable inference that
the hospital would test the [accused’s] blood for
alcohol as a matter of course in determining
how best to treat him medically. [para. 4]

The accused again suggested that the evidence of
the lab’s BAC tests results should not have been
admitted nor given any weight because the hospital
lab technician provided no details about the
equipment used or its reliability. The Court of Appeal
found the trial judge did not err in deciding this
issue, citing Wigmore on Evidence, vol. 2
(Chadbourn Rev., 1979), s. 665(a), at pp. 917-19:

In assessing how much weight I am to place on
the test results, I am compelled to consider not
only the fact that the testing was conducted by a
qualified technologist, but also the fact the
laboratory in which the testing equipment was
located and in which the testing and analysis
was performed was in a large urban hospital.
This laboratory was designed to service doctors
and other trained medical professionals. It is
implicit that these medical professionals were
prepared to rely on the laboratory results to
make their decisions, decisions which impact
the health, and sometimes the life of hospital
patients. It is also implicit that a laboratory
which is designed and operated for these
purposes will use reliable and well maintained
and calibrated equipment.

The use of scientific instruments, apparatus,
formulas, and calculating tables, involves to
some extent a dependence on the statements of
other persons, even of anonymous observers. Yet
it is not feasible for the professional man to test
every instrument himself; furthermore he finds
that practically the standard methods are
sufficiently to be trusted. Thus, the use of an Xray machine may give correct knowledge,
though the user may neither have seen the
object with his own eyes nor have made the
calculations and adjustments on which the
machine’s trustworthiness depends. The
adequacy of knowledge thus gained is
recognized for a variety of standard instruments.
In some instances the calculating tables or
statistical results are admitted directly, under an
exception to the hearsay rule. [Citations
omitted.]

The accused was convicted of all three charges.

Ontario Court of Appeal

The accused’s appeal was dismissed.

Th e a c c u s e d a p p e a l e d h i s
convictions contending the search
warrant was invalid since there was
nothing in the ITO to indicate that

Complete case available at www.ontariocourts.on.ca

Editor’s Note: Additional case facts taken from R. v.
Murray, 2011 ONSC 3735, 2011 ONSC 2537.

PAGE 8

Volume 13 Issue 3 - May/June 2013

SHARING	
 CRA	
 DOCUMENTS	
 OK

Federal Court of Canada

Brown v. Canada, 2013 FCA 111
Police officers executed a Controlled
Drugs and Substances Act (CDSA)
search warrant at the accused’s
residence. The warrant was based on
allegations that the accused was
engaged in cocaine trafficking. The warrant
authorized the seizure of, among other things,
proceeds of crime, illegal drugs, financial
documents and other relevant information. No one
was home at the time the warrant was served. Police
seized 13.6 grams of crack cocaine, a cellular
phone, tax records and other documents belonging
to the accused. He was charged with trafficking but
the case did not proceed to trial. The charge was
dropped for lack of evidence. In the meantime,
police had shared the documents seized with
officials of the Canada Revenue Agency (CRA) and
reassessments were made under the Income Tax Act
(ITA) for several taxation years. Undeclared income
was added to each taxation year and gross
negligence penalties imposed.

Tax Court of Canada

Brown appealed the Tax Court of
Canada’s decision, asserting once
again that the documents should
not have been accepted into
evidence. Justice Dawson, delivering the judgment
for the Federal Court of Appeal, disagreed albeit for
different reasons. In this case, the search and seizure
was lawful. The police were authorized by a valid
warrant, which had not been challenged. Brown did
not have a reasonable expectation of privacy
(subjectively or objectively) over the seized
documents such that the police were required to
maintain their confidentiality. Subjectively, Brown
said the seized documents should have been
returned to him so the CRA could ask him to turn
them over. This evidence was inconsistent with any
subjective expectation of privacy. Objectively,
taxpayers are obliged to keep records and to
produce them during an audit. Since Brown failed to
demonstrate a reasonable expectation of privacy in
the seized documents, his s. 8 rights were not
breached and the documents were correctly
received into evidence.
Complete case available at www.canlii.org

Brown appealed the reassessments
arguing that his s. 8 Charter rights were
violated when the police forwarded
copies of the documents seized under the
CDSA warrant to the CRA. An investigating officer
explained that it was common practice for police to
give the CRA information obtained on persons
charged with trafficking or other illegal business
activities because these individuals often do not
report such income for fear of prosecution for their
crimes.
The judge ruled that since it was permissible under
the Charter for a CRA officer to pass on documents
properly obtained in the course of an audit to
officials later carrying on a criminal investigation (R.
v. Jarvis, 2002 SCC 73), it was equally permissible
for police to share information with CRA auditors.
The documents passed from the police to the CRA
were therefore admissible for audit purposes.
Brown’s appeal from reassessment was dismissed.

CRA Reassessments & Penalties
How much undeclared income was added
to Brown’s taxation years?

2004 = $20,715
2005 = $116,992
2006 = $26,405
2007 = $31,296
What were the gross negligence penalties
that were imposed?

2004 = $1,620
2005 = $15,544
2006 = $4,036
2007 = $2,959
R. v. Brown, 2012 TCC 251

PAGE 9

Volume 13 Issue 3 - May/June 2013

Jurisprudence Jolt
IN BRIEF: This section provides a peek of what’s happening in appeal courts across the country.
making the threat recipient’s perception the
determinative factor. Rather than asking what a
reasonable person would objectively perceive, the
judge asked what the recipient herself perceived. - R.

Supreme Court of Canada

UTTERING	 THREATS:	 RECIPIENT	 NEED	 NOT	 
TAKE	 IT	 SERIOUSLY
The accused was charged with
uttering threats to cause bodily
harm after he spoke to his exgirlfriend on the phone. He
repeatedly told her he would kill her if she went
forward with the planned abortion of their child. He
was incarcerated at the time and the ex-girlfriend
testified she was not intimidated nor fearful as he had
frequently talked this way. The accused was acquitted
after a Manitoba Provincial Court trial judge was not
satisfied beyond a reasonable doubt the accused
intended that his words would intimidate or be taken
seriously. The Manitoba Court of Appeal dismissed a
Crown appeal.
On further appeal to the Supreme Court of Canada, the
acquittal was upheld by a 4:3 margin. The Court noted
the essential elements of uttering threats under s. 264.1
(1)(a) of the Criminal Code:
1. ACTUS REUS - the uttering of threats of death or
serious bodily harm; and
2. MENS REA - the words spoken or written as a
threat to cause death or serious bodily harm
were meant to intimidate or be taken seriously.
The majority agreed that the Crown did not need to
prove that the recipient of the threat felt intimidated or
took it seriously. Instead, all that needed to be proven
was that the accused intended them to have that effect.
However, the trial judge still needed to be satisfied the
necessary mens rea was present. The judge never said
she was acquitting the accused solely because the
recipient of the threats did not take them seriously.
Instead, she was left with a reasonable doubt on the
accused’s mens rea. There was no error in entering an
acquittal.
The minority would have allowed the appeal, entered a
conviction and remitted the matter back to Provincial
Court for sentencing. In its view, the trial judge erred in

v. Obrien, 2013 SCC 2.

Supreme Court of Canada

VEHICLE	 FORFEITURE	 ORDERED	 FOR	 IMPAIRED	 
DRIVING	 OFFENCE
The accused pled guilty to
impaired driving in the Court of
Quebec. He was sentenced to 12
months imprisonment and was
prohibited from driving for five years. The Crown also
sought forfeiture of the truck he was driving at the time
of his arrest because it was offence-related property
under the Criminal Code. But the trial judge refused to
order forfeiture. In his view, after considering the
objectives and principles of sentencing, the accused
had demonstrated that the impact of the forfeiture
would be disproportionate under s. 490.41(3) of the
Criminal Code. The Quebec Court of Appeal found the
trial judge erred in considering the accused’s sentence
when deciding whether the vehicle would be forfeited,
but nonetheless dismissed a Crown appeal. It found the
trial judge properly considered the accused’s personal
circumstances in weighing the impact of the forfeiture
order.
The Supreme Court of Canada, however, allowed a
further Crown appeal and ordered the vehicle forfeited.
Under s. 490.41(3) a court may decide not to order
forfeiture if the impact of the order would be
disproportionate to (1) the nature and gravity of the
offence, (2) the circumstances surrounding the
commission of the offence and (3) the criminal record,
if any, of the offender. The unanimous Supreme Court
concluded that the impact of forfeiture was not
disproportionate. The trial judge erroneously
emphasized the accused’s personal circumstances and
failed to give appropriate weight to his criminal record,
which included five convictions for alcohol related
driving offences and three breaches of probation or
undertaking. - R. v. Manning, 2013 SCC 1

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Volume 13 Issue 3 - May/June 2013

Personal Circumstances?
Just what were Manning’s personal circumstances
that the trial judge erroneously overemphasized in
finding the vehicle forfeiture disproportionate?
• he lived on social assistance
• he was unemployed
• the vehicle (valued at $1,00) was his sole asset
• he had no income to procure a new vehicle
• he needed a vehicle to obtain food and
clothing or to get to the hospital (he and his
spouse had health problems)
• he lived with his spouse in a motel room
• he had no financial resources to take a taxi
• the only means of transport was to ask a
friend to drive his truck
See R. v. Manning, 2011 QCCA 900

British Columbia Court of Appeal

REASONABLE	  GROUNDS	  TO	  BE	  VIEWED	  IN	 
TOTALITY,	 NOT	 PIECEMEAL
Police obtained two wiretap
authorizations to intercept private
communications. The judge granted
the authorizations on the basis of a
chronologically organized 167 page affidavit, which
included references to undercover drug transactions,
source information and surveillance evidence. The trial
judge refused an application by the defence to crossexamine the affiant and the accused’s arguments on the
facial invalidity of the warrant were rejected.
Convictions for conspiracy to traffic in cocaine and
methamphetamine, trafficking and possession of a
restricted weapon followed.
The accused appealed his convictions arguing, among
other grounds, that the affidavit failed to provide
reasonable grounds for the issuance of the wiretap
authorizations. The British Columbia Court of Appeal
acknowledged that, as part of the key requirements for
a wiretap authorization, the affidavit must establish that
there are reasonable grounds to believe that an offence
has been committed or is being committed and that the
authorization sought will afford evidence of that crime.
As for reasonable grounds, the question for a reviewing
judge is not whether they would have granted the
order, but whether there was any basis on which the
issuing justice could have done so. In other words, the
reviewing judge does not stand in the place of the

judge signing the authorization, but should only set the
authorization aside if there is no basis on which it
could be sustained. In reviewing the affidavit, the judge
is to examine the “totality of the circumstances,” not
assess the evidence in a piecemeal fashion. In this
case, Justice Ryan found the affidavit contained
sufficient facts capable of supporting a reasonable
belief. The trial judge properly held that the informant
information in the affidavit contained sufficient indicia
of reliability to have formed part of the grounds relied
upon in support of the authorization. “Viewed in
totality, the informant information was sufficiently
detailed, reliable, and corroborated to have been
considered by the authorizing judge,” she said. - R. v.
MacNeil, 2013 BCCA 16.

CASE QUOTE
“Where the grounds are based in whole or in part on
information from an informant, the Court must consider
the ‘totality of the circumstances’ to determine whether
the informant information was sufficiently reliable to
have formed part of the grounds to support the
authorization or warrant. Under this approach the
Court must consider: (i) the extent to which the
information predicting the criminal offence is
compelling, i.e., the extent of detail provided; (ii) the
credibility or reliability of the source; and (iii) the extent
of corroboration. These are not separate tests but rather
factors to be evaluated as part of the ‘totality of the
circumstances’. Weaknesses in one area may be
overcome by strengths in the others.” - R. v. MacNeil at
para. 52.

British Columbia Court of Appeal

CIRCUMSTANTIAL	  EVIDENCE	  ANALYZED	  AS	  A	 
WHOLE,	 NOT	 AS	 INDIVIDUAL	 PIECES
The accused was a passenger in a
vehicle stopped by police during a
roadblock. While obtaining the
driver’s license and vehicle
registration, police smelled marihuana coming from the
vehicle and arrested the occupants. The accused was
carrying a brown paper bag containing $7,780
underneath his sweater and $717 was found in his
wallet. Another $5,000 was found in a backpack
behind the front passenger seat. Silver vacuum sealable
bags, often used for packaging marihuana, were also
found in the vehicle. A drug detention dog
subsequently alerted on the money. At trial a police

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Volume 13 Issue 3 - May/June 2013
officer provided an expert opinion that the manner in
which the money was bound was consistent with how
drug traffickers handle it. The accused contended that
his possession of the $7,780 was capable of an
innocent explanation, such as when he told officers he
had the cash to buy a car. But he was convicted of
possessing proceeds of crime anyway.
The accused challenged his conviction to the British
Columbia Court of Appeal, suggesting the verdict was
unreasonable and not supported by the evidence. But
the Appeal Court disagreed. Although the Crown must
prove that the property seized was proceeds of crime
and that the accused had knowledge of its character, it
need not prove it by direct evidence, but may do so
through circumstantially. The test for circumstantial
evidence is that the trial judge must be satisfied beyond
a reasonable doubt that the accused’s guilt is the only
reasonable inference to be drawn from the proven
facts. Each piece of evidence is not to be analyzed
separately and out of context. Instead, the correct
approach is to consider the whole of the entire body of
admissible evidence rather than identifying each piece
of evidence and offering some other explanation for it.
Here, the trial judge applied the correct legal test,
explained the evidence she accepted and relied upon,
did not speculate on possible explanations and
concluded that the evidence supported a finding of
guilt beyond a reasonable doubt. The accused’s appeal
was dismissed. - R. v. Carpio, 2012 BCCA 484.

assailant had kicked in the door, pointed a gun at each
of the victims, took their money and left. The entire
event took about two minutes. At trial, both victims
testified they had briefly seen the assailant on a
previous occasion about two months before the
robbery when he came in to rent a car. At that time
neither victim assisted the man with a real transaction
and the owner had no memory of observing anything
unusual about the man’s appearance, such as the
condition of his teeth, visible scars or tattoos. He
merely described him as a 5’8”, “black guy.” The owner
pulled the man’s rental file, viewed a copy of the
accused’s health card and identified his picture as
being the assailant. Both victim’s also provided in-dock
identification. The accused was sentenced to 10 years
in prison
The accused appealed his conviction suggesting the
trial judge did not adequately charge the jury with
respect to eyewitness identification. Justice Epstein,
delivering the Ontario Court of Appeal judgment,
agreed. There are dangers inherent in eyewitness
identification evidence. “It is essential to recognize that
it is generally the reliability, not the credibility, of the
eyewitness' identification that must be established,”
said Justice Epstein. “The danger is an honest but
inaccurate identification.” A judge must instruct a jury
to consider the frailties of eyewitness identification and
consider such things as:
1. Was the suspect known to the witness?
2. What were the circumstances of the contact
during the commission of the crime including
whether the opportunity to see the suspect was
lengthy or fleeting?
3. Was the sighting by the witness in circumstances
of stress?
4. Was the witnesses’ description of the assailant
generic or vague, or was it a detailed description
that included references to distinctive features?

OLD SCHOOL: CASE QUOTE
“It is true that a man is not called upon to explain
suspicious things, but there comes a time when,
circumstantial evidence having enveloped a man in a
strong and cogent network of inculpatory facts, that
man is bound to make some explanation or stand
condemned.” - R. v. Jenkins (1908), 14 C.C.C. 221
(B.C.C.A.) at p. 230.

Ontario Court of Appeal

IN-DOCK	 IDENTIFICATION	 TO	 BE	 GIVEN	 LITTLE,	 
IF	 ANY,	 WEIGHT
The accused was convicted by a
jury in the Ontario Superior Court
of Justice on two counts of robbery
after an assailant, armed with a
gun, entered a car rental establishment and stole
$2,500 from the owner and $50 from a customer. The

The charge to a jury must include a caution that indock or in-court identification is to be given negligible,
if any, weight.
In this case, the witnesses only had a few minutes to
observe their assailant under highly stressful
circumstances - facing a man at close range pointing a
gun at them. Their descriptions were generic and
neither witness noticed any distinctive features - the
accused had two permanent gold front teeth, a 7” scar
on his jaw and a 3.5 cm tattoo on his left hand. There
was also no physical evidence - no surveillance

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Volume 13 Issue 3 - May/June 2013
footage, no DNA, no fingerprints. The trial judge did
not adequately instruct the jury on eyewitness evidence
and their duty to scrutinize it with considerable care.
The convictions were quashed and acquittals entered.
- R. v. Jack, 2013 ONCA 80

CASE QUOTE
“‘[E]yewitness identification evidence has taught us to
use discriminating scrutiny for badges of unreliability.’
One such ‘badge’ is whether a witness’ description of the
suspect fails to include mention of ‘a distinctive feature
of the accused’.” - R. v. Jack at para. 29 citing R. v.
Gonsalves (2008), 56 C.R. (6th) 379 (Ont. S.C.J.)

Alberta Court of Appeal

FINDING	 OF	 UNCONSTITUTIONALITY	 DID	 NOT	 
REPEAL	 CDSA	 PROVISIONS
The accuseds were convicted in
the Alberta Court of Queen’s
Bench of possessing and
producing marihuana. But they
challenged their findings of guilt to the Alberta Court of
Appeal by suggesting that the provisions under the
Controlled Drugs and Substances Act (CDSA) for which
they were charged were not in force because of
inadequacies in the Regulations.
First, they argued that since some courts had found
constitutional flaws in the medical marihuana
provisions in the past, Parliament was required to reenact the CDSA provisions. In their opinion, court
decisions that previously declared the medical
exemptions for marihuana possession unconstitutional
effectively repealed the CDSA sections that created the
offence of marihuana possession and the passage of the
new Regulations did not revive them. Because
Parliament had never re-enacted the CDSA, they
suggested there was no existing offence for which they
could be charged. The Court of Appeal disagreed. “The
finding of constitutional invalidity because of the
inadequacies in the Regulations did not result in any
repeal of the CDSA,” it said. “That statute may have
been unenforceable in some provinces for a short
period of time with respect to those with relevant
medical problems, but when the identified
inadequacies were remedied by the new Regulations,
any constitutional problem disappeared. It was not
necessary for Parliament to re-enact the CDSA.”

Second, their suggestion that their constitutional rights
were impaired because the medical exemption
application process is bureaucratic, frustrating,
complex, plagued by delay and inconvenient was also
without merit. “The Charter is there to protect the
fundamental rights of Canadians,” said the Court.
“Mere administrative inconvenience, or the wish to be
free from government regulation, does not entitle the
[accuseds] to pick and choose which statutes will be
binding on them.” It was also noted that one of the
accuseds subsequently obtained a licence which
showed that the bureaucratic obstacles were not
insurmountable. Finally, the assertion that it is
burdensome to obtain a medical exemption and
difficult to find a physician to support a need for
medical marihuana was also rejected. “There is no free
standing Charter right to a lifestyle involving the
recreational consumption of marihuana, nor is there
any right to self-medicate.” The onus was on the
accuseds to prove that they were entitled to an
exemption by successfully applying for a permit under
the Regulations or providing a court with sufficient
facts and valid legal arguments to show that they were
otherwise entitled to an exemption. It was not sufficient
that they only assert a medical need to obtain a
constitutional exemption. They failed to meet their
onus and their appeals from conviction were
dismissed. - R. v. Voss, 2013 ABCA 38

CASE QUOTE
“[T]here is no free standing Charter right to a lifestyle
involving the recreational consumption of marihuana,
nor is there any right to self-medicate.”” - R. v. Voss at
para. 8 citing R. v. Malmo-Levine, 2003 SCC 74.

Alberta Court of Appeal

OFFICERS’TESTIMONY	 ABOUT	 VIDEO	 
OBSERVATIONS	 ADMISSIBLE
Where an original video recording
or a copy was unavailable at trial,
photographs made from the video
and the police evidence of what
was seen on it were admissible at the accused’s
robbery trial. Security cameras had captured three
suspects on video and photographs were made from it.
At the accused’s Alberta Provincial Court trial the judge
admitted the photos and allowed the officers to testify
as to what they observed in the video. The accused was
convicted but appealed, arguing the trial judge
erroneously admitted the photos and police evidence.

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Volume 13 Issue 3 - May/June 2013
The Alberta Court of Appeal found “the best evidence
rule does not preclude the admission of viva voce
evidence of persons who observed the video.” The best
evidence rule recognizes that real evidence is usually
more reliable than human evidence. However, how
much weight the judge gives to the evidence and its
reliability will vary. So in this case, the judge was
entitled to admit the testimonial evidence of what the
police officers observed in the video and give it the
appropriate weight. As for a photograph, it “is
admissible in evidence if it accurately represents the
facts, is not tendered with the intention to deceive and
is verified on oath by a person capable to do so.” Here,
the trial judge properly found the officer’s testimony
satisfactorily proved the accuracy and fairness of the
photographs. - R. v. J.S.C., 2013 ABCA 157

CASE QUOTE
“The best evidence rule provides an admonition that real
evidence is usually more reliable than human
evidence. ... In our view the best evidence rule does not
preclude the admission of viva voce evidence of persons
who observed the video” - R. v. J.S.C. at paras. 14-16.

British Columbia Court of Appeal

CELL	  PHONE	  CALL	  ADMISSIBLE	  AS	 
CIRCUMSTANTIAL	  EVIDENCE	  OF	  DRUG	 
POSSESSION
After the accused was arrested for
possessing cocaine for the purpose
of trafficking, police searched the
van he was driving and found
cocaine, a digital scale, paper flaps and a cell phone.
Shortly thereafter, the phone rang and an officer
answered it. A female asked for “Rick” and said she
wanted to “trade a recently stolen bicycle for 1 gram of
soft.” At trial in British Columbia Provincial Court the
judge found the telephone conversation was
inadmissible as circumstantial evidence to establish
that the accused possessed the cocaine since no voir
dire had been held. The accused was nevertheless
convicted of possessing cocaine for the purpose of
trafficking on the basis of the remaining evidence.
While the accused appealed his conviction, the Crown
argued that the trial judge erred in ruling the cellphone
conversation inadmissible. Justice Neilson, writing the
British Columbia Court of Appeal’s decision, found the
judge did err in excluding the conversation. Drug
purchase calls are admissible as circumstantial

evidence of drug possession, such as knowledge of the
presence or purpose of the drugs. In the Court of
Appeal’s view, the cell phone conversation was
“properly admissible as circumstantial evidence
without the necessity of a voir dire, and she should
have considered it in determining whether the Crown
had established [the accused] knew the cocaine was in
the van.” - R. v. Graham, 2013 BCCA 75.

Ontario Court of Appeal

CROWN	 MUST	 PROVE	 STATEMENT	 GIVEN	 TO	 
POLICE	 WAS	 VOLUNTARY
The Crown bears the burden of
proving that a statement to police
is voluntary beyond a reasonable
doubt. Although this does not
require a verbatim record of the interaction between an
accused and the police on the voir dire, an incomplete
or inaccurate record or notable inconsistencies in the
officers’ testimony may raise a reasonable doubt about
the voluntariness of a statement. On charges of
accessing and possessing child pornography, the
Ontario Court of Justice was not satisfied that the
evidence of the police officers accurately or completely
set forth the sequence of events or the details of the
encounter. Furthermore, the judge explained that the
police “had complete control over the pace of the
investigation, where and when it would proceed, who
would be involved and what equipment or aids would
be utilized.” The accused’s statements made before and
after his arrest were excluded and he was acquitted.
The Ontario Court of Appeal upheld the trial judge’s
findings. “The quality of the record was something
entirely within the power of the authorities to
determine, in circumstances fully orchestrated by the
police,” said the Appeal Court. “Given that the officers
were operating in a relatively controlled environment
where they knew in advance that an important
conversation with a suspect was about to occur, the
trial judge concluded that it was reasonable to expect
that they would take reasonable steps to protect the
integrity of the record. He found that was not done.”
Since the trial judge could not be satisfied that the
statements were voluntary – made without threats,
promises or inducement – there was no basis to
interfere with his decision. The Crown’s appeal was
dismissed. - R. v. Blain, 2013 ONCA 224

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Volume 13 Issue 3 - May/June 2013

Ontario Court of Appeal

POSSESSION	 CONVICTIONS	 SUPPORTED	 BY	 
CIRCUMSTANTIAL	 EVIDENCE
The accused was convicted in the
Ontario Court of Justice of
possessing cocaine for the purpose
of trafficking, marihuana
possession and possessing proceeds of crime after
police found drugs and money in the car he was
driving. Police found 35 grams of cocaine, a baggie of
marihuana, $775 and two cell phones in the centre
console next to the driver’s seat. Two cell phone
charger cords were also clearly visible in the car. The
trial judge rejected the evidence of a defence witness
that he had temporarily loaned his rental car to the
accused, a man he barely knew. The witness, an
admitted drug dealer, essentially claimed ownership of
the drugs and money and said the accused did not
know they were in the vehicle. The judge found that
the quantity and value of the seized drugs made it
inconceivable that they would be casually entrusted,
by an admitted drug dealer, to someone who did not
know what was in the vehicle. Along with other
evidence, the judge went on to hold that the accused
knew the drugs and money were in the vehicle and
possession had been proven.
On appeal, the convictions were upheld. Possession
requires proof that the accused had knowledge of and
control over the contraband in the car. But suspicion of
guilt, by itself, is insufficient to establish knowledge of
the drugs and money to the requisite criminal standard
of proof. Here, the Ontario Court of Appeal rejected
the accused’s argument that his mere proximity to the
concealed drugs and money was the reason he was
convicted. Although the Crown’s case was not
overwhelming, the trial judge’s conclusion that the
accused had knowledge of the contraband was firmly
anchored in a cumulative view of the evidence and the
only rational inference in all the circumstances.“The
evidence at trial established a constellation of factors
that, taken together, support the inference of
knowledge by the [accused] of the presence of drugs
and cash in the car he was driving,” said the Court of
Appeal. “Moreover, when the car was in fact stopped,
the [accused] was using his cell phone, which then
rang continuously during the interval when he was
detained by the police at the roadside (10 missed calls
were recorded). This is consistent with individuals
seeking to engage in drug transactions. In addition, two
cell phone charger cords were clearly visible in the

vehicle, and accessible to the [accused], on the centre
console next to the driver’s seat.” The convictions were
properly supported by an evidentiary foundation and
the accused’s appeal against conviction was dismissed.
- R. v. Bryan, 2013 ONCA 97

CASE QUOTE
“The evidence at trial established a constellation of
factors that, taken together, support the inference of
knowledge by the [accused] of the presence of drugs and
cash in the car he was driving.” - R. v. Bryan at para. 10.

Ontario Court of Appeal

DETENTION	 NOT	 TRIGGERED	 JUST	 BECAUSE	 
SUSPECT	 QUESTIONED
At his trial in the Ontario Superior
Court of Justice on child
p o r n o g r a p hy a n d w e a p o n s
charges, the accused made a
Charter application to exclude two statements he made
to the police. His first statement (answers to brief police
questions) was made before his arrest in an office at the
store where he was an employee and before being
advised of his Charter rights. He made a second
statement in the police station after arrest and after
being advised of his Charter rights. The trial judge
found the accused was not detained when he gave his
first statement and was not entitled to receive a s. 10(b)
warning. The second statement was made after
appropriate Charter warnings were provided and was
also admissible. He was convicted of making child
pornography available, possessing and accessing it,
and possession of a prohibited weapon.
His appeal to the Ontario Court of Appeal was
dismissed. The Court of Appeal concluded that the trial
judge applied the correct analytical framework for
determining whether there was a detention. “In our
view, the trial judge was entitled to find on a balance
of probabilities that the [accused] was not detained,”
said the Court of Appeal. “His decision was premised
on the absence of specific hallmarks of detention (e.g.
the police did not say that the [accused] could not
leave the store office), the [accused’s] concession that
he knew it was possible for him to go, and the
[accused’s] strong motive for speaking, namely, to
make sure that his brother was not implicated in his
criminal activity.” Just because a person is under
investigation for criminal activity and is asked
questions, doesn’t mean they are necessarily detained.

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Volume 13 Issue 3 - May/June 2013
Since the accused’s attack on the admissibility of his
police station statement was contingent on the
inadmissibility of his first statement (and the asserted
taint that flowed), there was no basis for further
argument. The accused's appeal against his conviction
was dismissed. - R. v. England, 2013 ONCA 237

Ontario Court of Appeal

indicating activity by the [accused] highly suggestive of
hand-to-hand drug trafficking, the ITO was sufficient to
provide reasonable and probable grounds necessary for
the issuance of the warrant.” - R. v. Bouchard, 2013

ONCA 229

Ontario Court of Appeal

POSING	 AS	 SPIRITUAL	 ADVISER	 NOT	 A	 DIRTY	 
TRICK

CORROBORATED	 INFORMATION	 COMBINED	 
WITH	 OTHER	 EVIDENCE	 JUSTIFIES	 WARRANT
Police obtained a warrant to
search the accused’s home under
s. 11 of the Controlled Drugs and
Substances Act. The ITO included
information from a first time, non-coded, confidential
informer who did not want to testify or have his identity
known because of a belief that serious harm could
come to him or family members. The affiant personally
met with the informer and questioned him at length
regarding his knowledge of illicit drugs, the methods of
packaging those drugs, street pricing, drug terminology
and methods of ingestion. The affiant found the
informer quite knowledgeable and successfully
corroborated information provided through the use of
background checks, records checks, personal
knowledge and physical surveillance. When the
warrant was executed 177 grams of powder cocaine
and $12,135 in cash was recovered. As a result, the
accused was charged with cocaine and proceeds of
crime offences. The Ontario Superior Court of Justice
found there was sufficient information provided in the
ITO to allow the authorizing judge to issue the warrant.
The accused was convicted of possessing drugs for the
purpose of trafficking and possession of proceeds of
crime.
The accused then challenged the search, arguing the
information contained in the ITO was insufficient to
justify the warrant. Ontario’s top court, however,
concluded that the information was sufficient. “The
information provided by the confidential informant was
corroborated by the police in many details,” said the
Court of Appeal. “When combined with the drugrelated conversation that ensued when the police
called the cell phone number the informant had
provided and the extensive surveillance evidence

Several people were convicted of
first degree murder after a man
was shot several times near his car
in a parking lot. Key evidence
against the accused included video and audio tapes
taken while incriminating statements were made to an
undercover police officer posing as an Obeah spiritual
advisor. A judge of the Ontario Superior Court rejected
the accuseds’ argument that this method of obtaining
statements constituted a “dirty trick” and that their
admission into evidence would constitute an abuse of
process. In the judge’s view, the police conduct would
neither shock the conscience of the community nor
bring the administration of justice into disrepute.
The Ontario Court of Appeal upheld the trial judge’s
ruling, holding that the statements should not be
excluded under the dirty tricks doctrine nor as a result
of a s. 7 Charter breach. Under the common law there
are circumstances in which a statement of an accused
“ought to be excluded because the conduct of the
police is so egregious that admitting the evidence
would bring the administration of justice into disrepute
or is so appalling as to shock the conscience of the
community.” However, the threshold for finding that a
police investigative technique rises to the level of a
dirty trick requiring the exclusion of evidence is high.
In this case (1) the accuseds were not in custody when
the statements were made, (2) the Obeah spiritual
adviser, as an undercover officer, was not a person in
authority, (3) the accuseds communicated not to fulfill
a religious purpose or spiritual need but to use the
advisor’s powers to thwart the police and allow them to
escape prosecution and (4) admitting the statements
would not shock the community’s conscience nor bring
the administration of justice into disrepute. Finally. s. 7

CASE QUOTE
“Deceit on its own is not enough to constitute a dirty trick. The behaviour must be so egregious that it shocks the
conscience of the community. In other words, the public would be outraged that police were engaging in such behaviour,
even in the pursuit of criminals.” - R. v. Welsh at para. 94.

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Volume 13 Issue 3 - May/June 2013
of the Charter had no application since the accuseds
were not detained when the statements were made.
The police operation in this case did not constitute a
“dirty trick” nor breach s. 7. - R. v. Welsh, 2013

ONCA 190

Charter Breaches?
What were the Charter violations as found by the
trial judge?
•

British Columbia Court of Appeal

EVIDENCE	  ADMISSIBLE	  DESPITE	  CHARTER	 
BREACHES
The police obtained a search
warrant for a premises rented by
the accused in a business office
and warehouse complex. They
approached, announced their presence and detained
him. A search turned up more than 400 growing
marihuana plants. The accused was then arrested,
advised of his right to counsel and transported to the
police station where he provided a statement. He
argued before a British Columbia Supreme Court judge
that the evidence was inadmissible under s. 24(2) of
the Charter because, among other reasons, he was not
advised of his right to consult counsel in a timely
manner upon arrest. The judge found two s. 10 (b)
Charter breaches. First, there was an 11 to 14 minute
delay in advising the accused of his right to counsel
after he was detained. Second, although the police
officer advised the accused that he could contact
counsel by cell phone, the police did not offer him the
ability to do so in private in the police car. The judge
excluded keys and other evidence provided by the
accused at the scene and later at the police station but
refused to exclude evidence obtained in the execution
of the search warrant. He was convicted of producing
marihuana and possession for the purpose of
trafficking.
He appealed his convictions arguing, in part, that the
evidence of the grow operation ought to be excluded
on the basis of the s. 10(b) violations. But the British
Columbia Court of Appeal upheld the trial judge’s
ruling. The trial judge considered the proper factors,
did not make any unreasonable findings and his
decision in determining that the admission of the
evidence would not bring the administration of justice
into disrepute was owed considerable deference. The
accused’s appeal was dismissed. - R. v. Camacho,

2013 BCCA 68

Note-able quote
“The jury consists of twelve persons chosen to
decide who has the better lawyer.” - Robert Frost

•

•

•

s. 10 (a): The accused was not advised
promptly of the reasons for his initial detention.
There was a six minute delay between his
detention and when he was given a copy of
the search warrant, it was read to him and
explained that he was detained for purposes of
“the execution of the warrant".
s. 10(b): He was not advised “without delay” of
his right to retain and instruct counsel. A further
six or seven minute delay occurred between
when he was informed of the reason for
detention and advising him of the right to
counsel;
s. 10(b): He was not afforded an opportunity to
contact counsel using a phone available at
the scene with as much privacy as could be
afforded to a co‑operative accused in the
backseat of a police car; and
s. 10(b): He was asked questions about his
identity and for keys to the premises which the
police wished to search before he had an
opportunity to exercise his asserted desire to
speak to a lawyer.

R. v. Camacho, 2011 BCSC 175.

CASE QUOTE
“As a general proposition, there is no justification for
refusing access to counsel until the suspect is returned
to the police station. Exigent circumstances may make
that reasonable in a particular case but there were no
such circumstances here. Further, there is no reason why
[the accused] could not have had the privacy that the
backseat of a police car affords..” - R. v. Camacho, 2011
BCSC 175 at para. 44.

Alberta Court of Appeal

COMPLAINANT	 NOT	 PERSON	 IN	 AUTHORITY
The Alberta Court of Appeal has
upheld a trial judge’s ruling that
neither the complainant of a
sexual assault nor her boyfriend
were persons in authority under the common law
confessions rule because there was no evidence they
were connected to the police or prosecution.
Following the assault, the accused made three
statements: the first was to the complainant’s boyfriend

PAGE 17

Volume 13 Issue 3 - May/June 2013
(his roommate); the second to the complainant and her
boyfriend; and the third to the police the following day.
The trial judge determined that the confessions rule did
not apply to the statements made to the boyfriend or
the complainant as they were not persons in authority.
In the judge’s view, it was not enough for the
complainant or her boyfriend to have a basic power to
influence proceedings by pressing charges. However,
she exercised her discretion to exclude these
statements on the ground of trial fairness. She admitted
into evidence the statement to the police. The accused
was convicted of sexual assault.
The Court of Appeal agreed that the statements to the
complainant and her boyfriend were not made to
persons in authority. “While the [accused] may have
believed that the complainant had the ability to
influence the proceedings against him, in the sense that
she could decline to report the incident to the police
and ensure that proceedings were never initiated, there
was no indication that the [accused] believed the
complainant was connected to the police or the
prosecution,” said the Court of Appeal. “In fact, he did
not know at that time that the incident had even been
reported, and the complainant testified that he
specifically asked her not to contact the police. The
[accused] did not testify on the voir dire, so there was
no direct evidence that he believed her to be a person
in authority, and the balance of the evidence did not
compel that inference”. The accused had failed to meet
his evidential burden of establishing that he reasonably
believed that the complainant was connected to the
state. Similarly, there was no evidence of any
collaboration between the boyfriend and police. As for
the statement to police, it was not tainted by the
inducements given by the complainant and her
boyfriend. There was a gap between the statements,
they were made to different people and, at the

CASE QUOTE
“Under the common law confessions rule, the accused must be
able point to some evidence showing that the receiver of the
statement was a person in authority. If that is done, the Crown
must demonstrate, beyond a reasonable doubt, that the statement
was voluntary. However, voluntariness does not become an issue
if the receiver of the statement is not a person in authority. ...
The confessions rule requires that a statement be made to
persons in authority for the purpose of controlling coercive state
conduct. For this reason, the term “person in authority” usually
applies to “those persons formally engaged in the arrest,
detention, examination or prosecution of the accused”. - R. v.
Glessman at para. 8-9, references omitted.

beginning of the interview, the detective told the
accused that any inducements not to report the offence
to police were no longer operative. The accused’s
appeal was dismissed. - R. v. Glessman, 2013 ABCA

86

Nova Scotia Court of Appeal

ESSENTIAL	 FEATURE	 OF	 SEXUAL	 ACT	 REQUIRES	 
CONSENT
The accused, fearing his intimate
partner might leave him, decided
to surreptitiously sabotage their
birth control method. By poking
holes in the condoms they used, he hoped that his
partner would get pregnant and she would then
continue the relationship. She did get pregnant and
ended up aborting the baby. The accused was
convicted in Nova Scotia Supreme Court of sexual
assault and sentenced to 18 months in jail. The judge
found the complainant did not consent to having
unprotected sex. The accused knew full well that she
did not want to become pregnant and she insisted he
wear a condom for that very reason.
A panel of five Newfoundland Court of Appeal judges
agreed that .Under s. 273.1(1) of the Criminal Code,
consent means “the voluntary agreement of the
complainant to engage in the sexual activity in
question.” Just what is meant by the words “the sexual
activity in question?” Was the sexual activity in
question simply sexual intercourse as the accused
argued, to which the complainant did give consent? Or
was the sexual activity in question unprotected sexual
intercourse as the Crown argued, which the
complainant did not give consent? By a 4-1 majority,
the Court of Appeal concluded that consent under s.
273.1(1) requires the alleged victim to be fully aware of
the exact nature of the proposed sexual activity. “If
there is no consent to an essential feature of the sexual
act itself, there can be no consent to ‘the sexual activity
in question’ pursuant to s. 273.1,” said Chief Justice
MacDonald. “It is clear that protected sex was an
essential feature of the proposed sexual act and an
inseparable component of [the complainant’s]
consent.” The accused’s appeal was dismissed and his
conviction and sentence were upheld. - R. v.

Hutchinson, 2013 NSCA 1.

Note-able quote
“Make crime pay. Become a lawyer.” - Will Rogers

PAGE 18

Volume 13 Issue 3 - May/June 2013

POLICING	
 ACROSS	
 CANADA:	
 
FACTS	
 &	
 FIGURES

Canada’s Largest Municipal Police Services 2012
Service

According to a report released
by Statistics Canada, there were
69,539 active police officers
across Canada in 2012 - a slight
increase of 115 over 2011. This
was the ninth consecutive year
of growth. Ontario had the most police officers at
26,274, while the Yukon had the least at 119. With a
national population of 34,880,491, Canada’s average
cop per pop rate was 199 police officers per 100,000
residents. This rate was lower than Scotland (337),
England and Wales (244), the United States (238),
Australia (222), Japan (201) and New Zealand (201).
Source: Statistics Canada, Police Resources in Canada,
2012, Catalogue no: 85-225-X, March 2013

Officers

% Female

Actual

Authorized

Toronto, ON

5,568

5,574

19%

Montreal, QC

4,480

4,597

31%

Calgary, AB

1,975

1,960

15%

Peel Reg., ON

1,911

1,937

17%

Edmonton, AB

1,603

1,647

19%

Winnipeg, MN

1,472

1,441

14%

York Reg., ON

1,454

1,495

18%

Vancouver, BC

1,352

1,327

22%

Ottawa, ON

1,312

1,363

23%

Durham Reg., ON

923

871

18%

CANADA: By the Numbers
Royal Newfoundland Constabulary
402

Total population: 34,880,491

Quebec Provincial Police
5,588
YK
199

BC
8,887

Ontario Provincial Police
4,266

NWT
199

NU
125

NL
926

AB
6,787
SK
2,298

MN
2,706

ON
26,274

QC
15,992

PEI
247

NB
1,364

In 2011 the total expenditure on policing was

$12,931,555,000
PAGE 19

NS
1,934

RCMP ‘HQ’ &
Training Academy

1,681

Volume 13 Issue 3 - May/June 2013
CMA Police Officers & Crime Severity Index
CMA

Officers-2012

Crime Severity
Index-2010

Toronto, ON

10,023

54.9

Montreal, QC

6,986

80.9

Vancouver, BC

3,950

94.5

Calgary, AB

2,081

65.8

Edmonton, AB

1,928

89.4

Winnipeg, MN

1,517

107.2

Ottawa, ON

1,402

57.9

Hamilton, ON

1,129

65.2

Quebec, QC

998

52.2

Kitchener-Cambridge-Waterloo, ON

802

62.9

London, ON

769

79.0

St. Catherines-Niagara, ON

737

60.7

Halifax, NS

698

87.4

Windsor, ON

589

62.5

Victoria, BC

552

71.3

Saskatoon, SK

497

118.7

Gatineau, QC

435

63.6

Regina, SK

422

124.5

St. John’s, NL

336

93.3

Barrie, ON

313

58.3

Abbotsford-Mission, BC

262

87.9

Greater Sudbury, ON

262

78.9

Sherbrooke, QC

250

60.7

Brantford, ON

245

92.2

Kingston, ON

234

59.5

Thunder Bay, ON

228

107.3

Kelowna, BC

206

97.4

Saint John, NB

195

79.2

Guelph, ON

194

47.0

Peterborough, ON

189

62.2

Trois-Rivieres, QC

189

67.9

Saguenay, QC

179

71.1

Moncton, NB

145

68.8

GENDER
There were 13,838 female officers in 2012
accounting for 19.9% of all officers, or roughly 1
in 5. This is up from 17.9% in 2006, 14.5% in
2001, 10.4% in 1996, 7.0% in
1991, 3.9% in 1986, and 2.2% in
Area
%
1980. Quebec had the highest
Female
percentage of women (23.9%)
23.9%
while the Yukon had the least QC
(12.6%). The RCMP HQ and
21.3%
Training Academy were 22.4% BC
female.
NL
19.1%
The number of women in all
ranks continued to rise. Senior
officers were 9.9% female, more
than doubling over the last ten
years. Non-commissioned officers
were 16.4% female, also more
than twice the percentage from a
decade ago. Constables were
21.8% female. This is a slight
increase over last year.
Overall, the representation of
women in policing continues to
increase. In 2012 the number of
women increased (+234) while
the number of male officers
decreased (-119).

ON

18.7%

SK

18.5%

AB

17.3%

NS

16.8%

PEI

17.0%

NB

15.6%

MN

15.4%

NU

12.8%

NWT

13.1%

YK

12.6%

OTHER	
 FA$T	
 FACT$
• Police expenditures rose for the 17th
consecutive year, more than doubling since
1994;
• Costs for policing translates to $375 per
Canadian;
• Among provinces, Ontario spent the most on
policing ($4,326,213,000) followed by Quebec
($2,390,042,000), British Columbia
($1,434,524,000), Alberta ($1,224,920,000) and
M a n i t o b a ( $ 3 9 5 , 7 4 5 , 0 0 0 ) . Th e Yu k o n
($26,231,000), Prince Edward Island
($32,024,000), Nunavut ($42,636,000) and the
Northwest Territories ($50,918,000) spent the
least
Based on total expenditures on policing in 2011.

PAGE 20

Volume 13 Issue 3 - May/June 2013

RCMP

RCMP On-Strength Establishment
The RCMP had the largest presence in
British Columbia with 6,270 officers,
followed by Alberta (2,810), Ontario
(1,469) and Saskatchewan (1,265).

Canada’s Largest Municipal RCMP Detachments 2011
Service

Officers

% Female

as of September 1, 2011

Rank

#	
 of	
 positions

Commissioner

1

Deputy Commissioners

9

Assistant Commissioners

25

Chief Superintendents

51

Superintendents

186

Inspectors

440

Actual

Authorized

Surrey, BC

615

641

20%

Burnaby, BC

299

278

25%

Richmond, BC

228

227

21%

Kelowna, BC

154

157

25%

Corps Sergeant Major

1

Wood Buffalo, AB

150

158

26%

Sergeants Major

3

Coquitlam, BC

149

144

26%

Staff Sergeants Major

16

Nanaimo, BC

145

139

19%

Staff Sergeants

942

Codiac Region, NB

142

131

19%

Sergeants

2,140

Red Deer, AB

128

151

29%

Langley Township, BC

127

127

27%

Corporals

3,672

Kamloops, BC

127

122

24%

Constables

11,717

Prince George, BC

124

127

25%

Special Constables

78

Chilliwack, BC

108

103

33%

Civilian Members

3,760

Public Servants

6,194

According to Statistics Canada, the majority of RCMP
officers provided provincial police services (6,830). This
was followed by RCMP municipal policing (5,117) and
federal policing (4,447). Another 1,681 officers were
involved in RCMP Headquarters and the Training
Academy.

Total

29,235

Source: www.rcmp-grc.gc.ca/about-ausujet/organi-eng.htm

RCMP Officers by Level of Policing - Canada 2012 (numbers do not include 1,681 members at HQ & Training Academy)
Level / Region

BC

AB

SK

MN

ON

QC

NB

NS

PEI

NL

YK

NWT

NU

Total

Municipal

3,472

1,060

122

190

-

-

202

62

9

-

-

-

-

5,117

Provincial

1,825

1,331

855

649

-

-

526

744

105

412

94

176

113

6,830

Federal

811

359

245

199

1,377

964

151

194

25

86

17

13

6

4,447

Other

162

60

43

34

92

46

32

43

10

26

8

10

6

572

Total

6,270

2,810

1,265

1,072

1,469

1,010

911

1,043

149

524

119

199

125

16,966

PAGE 21

Volume 13 Issue 3 - May/June 2013

FAMILY VIOLENCE FAST FACTS

The RCMP is Canada’s largest police
organization. As of September 1,
2011 the force’s on-strength
establishment was 29,235. This
includes 19,203 police officers,
78 special constables, 3,760
civilian members and 6,194
public servants.
The RCMP is divided into 15 Divisions with
Headquarters in Ottawa. Each division is managed
by a commanding officer and is designated
alphabetically.

RCMP DIVISIONS
Region

Division

Pacific

E

British Columbia

M

Yukon Territory

D

Manitoba

F

Saskatchewan

G

Northwest Territories

V

Nunavut Territory

K

Alberta

Depot

Regina, SK

North West

Central

Atlantic

Area

A

National Capital Region

O

Ontario

C

Quebec

B

Newfoundland

H

Nova Scotia

J

New Brunswick

L

Prince Edward Island

Source: www.rcmp-grc.gc.ca/about-ausujet/organi-eng.htm

• In 2011, police reported 97,500
victims of intimate partner violence.
• 80% of spousal violence victims
were female.
• Violence against dating partners
was 1.6 times greater that spousal
violence.
• Highest rates of family violence were
recorded in Saskatchewan and
Manitoba. The lowest rates were
recorded in Ontario, PEI, Nova
Scotia and BC.
• 77% of the 344 murder-suicides in
Canada between 2001-2011
involved at least one victim related
to the accused.
• Shooting (53%) was the most
common cause of death in spousal
murder-suicides. Stabbing followed
at 22%.
• Risk of spousal homicide was
elevated after separation from a
legal marriage.
• Majority of intimate partner violence
victims were physically assaulted.
• Common assault was the most
frequently occurring offence.
Source: Statistics Canada, Family violence in Canada: A
statistical profile, 2011, Catalogue no: 85-002-X, June 2013

PAGE 22

Volume 13 Issue 3 - May/June 2013

ALL	
 CIRCUMSTANCES	
 TO	
 BE	
 
CONSIDERED	
 IN	
 s.	
 10(b)	
 
ANALYSIS
R. v. Adamiak, 2013 ABCA 199
Following a police investigation, the
accused was arrested during a traffic
stop at 1:30 pm for possessing drugs
for the purpose of trafficking. He was
read the standard Charter caution and
was asked if he understood. He said he did, but
answered “No” when asked whether he wanted to
call a a lawyer. He was then told that he might be
charged with possession for the purpose of
trafficking and that he was not obliged to say
anything, but if he did it might be used in evidence
against him. He was transported to the police station
and was locked in a small cell. He never asked to
use a telephone or contact a lawyer. After the police
executed a search warrant at 10:00 pm at his home,
he was given a telephone and told he could call a
lawyer. The first number he called did not work but
the second time he reached someone, speaking for
about 10 minutes. Telephone books, a legal aid
poster and lists of lawyers were located in the
holding area outside the cell where the telephones
were located. At about 11:30 pm the accused was
taken to an interview room and asked if he had
spoken with a lawyer. He said, “No. I just really
wanted to talk to my girlfriend.” He acknowledged
he had been given the opportunity to call someone
and was again Chartered and asked if he wished to
call a lawyer. He replied, “At this moment no.” A 25
minute audio/video taped interview was conducted
and he gave an inculpatory statement. At the
accused’s home police found, among other items, an
insulated cooler containing 793 grams of marihuana
in six separate bags along with a digital scale. He
was charged with possessing marihuana for the
purpose of trafficking.

Alberta Provincial Court
The judge ruled that the accused’s s. 10(b)
Charter right to retain and instruct counsel
without delay had been violated. She
found that regardless of what happened at
the time of the accused's arrest when he was given

his s. 10(b) rights and chose not to exercise them at
that point, the accused’s response some 10 hours
later at the beginning of the interview was equivocal
- it was not a clear waiver or denial of the right to
counsel. The officer should have gone further,
determined the accused’s understanding of his rights
and ensure that it was a clear refusal or waiver of the
right to counsel. The judge then excluded the
accused's statement under s. 24(2) and he was
acquitted.

Alberta Court of Appeal
The Crown asserted that the trial
judge was in error when she found
the s. 10(b) Charter breach. In its
view, the police fulfilled their s. 10
(b) duties and the accused made no effort to assert
his right to counsel nor provide evidence that he did
not understand his rights.
The Court of Appeal first recognized three
obligations imposed on police under s. 10(b):
1. the duty to inform a detainee of his right to
counsel (INFORMATIONAL);
2. if a detainee has indicated a desire to exercise
this right, a duty to provide the detainee with a
reasonable opportunity to exercise the right
(IMPLEMENTATIONAL); and
3. the duty to refrain from eliciting evidence from
the detainee until they have a reasonable
opportunity to consult (IMPLEMENTATIONAL).
Once the police have complied with s. 10(b) by
promptly advising the detainee of their right to
counsel without delay, the second and third
implementational duties are not triggered unless and
until a detainee indicates a desire to exercise their
right to counsel. The detainee must also be
reasonably diligent in exercising their right. If they
are not, the correlative duty on the police to provide
a reasonable opportunity and to refrain from
eliciting evidence will either not arise in the first
place or will be suspended. Section 10(b) rights may
be waived but the standard for proving a waiver will
be high, especially when the waiver is implicit.

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Volume 13 Issue 3 - May/June 2013
In this case, the trial judge focussed exclusively on
the accused’s interaction with the police
immediately before he gave an inculpatory
statement. Instead, she should have examined the
totality of the circumstances in assessing whether s.
10(b) was breached, including from the time of his
initial arrest until he gave the inculpatory statement:
Among other things, the trial judge needed to
take account of the Charter warning given to the
[accused] at the roadside; his assurance to the
arresting officer that he understood his rights and
did not wish to contact a lawyer; his later access
to and use of a telephone after being told that he
could call a lawyer; whether his jeopardy had
changed between the original caution and the
later one; and his acknowledgment to the
interviewing officer that he had been given the
chance to call a lawyer.

lawyer by name. However, within seconds he began
a conversation with the person in the next cell as the
detective was leaving the cellblock to arrange access
to a lawyer. The detective stopped, listened and
made notes of the very brief conversation, which
was potentially inculpatory. After listening to and
recording the statement, the detective interviewed
another person involved in the same investigation
and then began his efforts to locate the accuseds’s
lawyer some 20 to 25 minutes after he asserted his s.
10(b) Charter right. Those efforts failed. The
detective then spoke to the accused again and
offered to arrange for him to speak to another
lawyer. Eventually, the accused waived his right to
counsel and provided a videotaped statement to the
police.

Ontario Superior Court of Justice

Although the trial judge found as a fact that the
[accused] made an equivocal statement when
asked, immediately before the interview,
whether he wished to contact a lawyer, not
every equivocal statement necessarily leads to a
breach of section 10(b). The totality of the
circumstances must be considered. [paras.
27-28]

The trial judge failed to conduct a complete analysis
on the s. 10(b) issue and her application of s. 24(2)
was flawed. The Crown’s appeal was allowed and a
new trial was ordered.
Complete case available at www.albertacourts.ab.ca

NO	
 OPPORTUNITY	
 TO	
 COMPLY	
 
WITH	
 s.	
 10(b):	
 OVERHEARD	
 
CONVERSATION	
 ADMISSIBLE
R. v. Abdullah, 2013 ONCA 372
Following the accused’s arrest for
several offences arising out of the
search of his home, including
possessing a handgun, he was
advised of his right to counsel by the
investigating detective while in police cells. He
asserted his right to counsel, indicating that he
wished to speak to his lawyer and identified his

The trial judge ruled the videotaped
statement admissible but excluded the
statement made to the other prisoner as
recorded by the detective. He held that
the detective delayed affording the accused the
opportunity to exercise his right to counsel for no
valid reason and the delay was therefore not
reasonable. The accused’s right under s. 10(b) was
breached and the evidence was excluded under s.
24(2). “[I]nstead of doing what he should have done,
and do what is necessary to find counsel for the
accused, [the detective] made a conscious decision
to delay the implementation of the right to counsel
for the purposes of doing other things, interviewing a
third party and, of course, also eavesdropping to
obtain incriminating evidence,” said the judge. The
accused was acquitted.

Ontario Court of Appeal
The Crown’s challenge of the trial
judge’s Charter ruling on the s. 10
(b) breach was successful. Of the
three obligations imposed on the
police under s. 10(b), the one at issue in this case
was the police duty to provide the detainee with a
reasonable opportunity to exercise his right to retain
and instruct counsel without delay. Here, the
detective listened to and recorded notes of the brief
conversation between the accused and the other

PAGE 24

Volume 13 Issue 3 - May/June 2013

prisoner before leaving the cell area. “The statement
was made by the [accused] to the other prisoner
before the detective had any possible opportunity to
comply with the request for counsel,” said the Court
of Appeal. “Even if the brief 20-25 minute delay
after the officer left the cell area could engage s. 10
(b) concerns, that time period is irrelevant to
whether there was a breach at the time the officer
listened to and made notes of the statement. There
was no breach of s. 10(b) at that point in time.” It
added:
In summary, it could not be said that at the point
in time when the statement was overheard by
the police officer there had been any failure to
provide a reasonable opportunity to consult with
counsel. The [accused’s] belief that his statement
to the other prisoner was not being overheard by
the police had no relevance to whether the
police had complied with their obligation under
s. 10(b). [para. 9]

Moreover, the statement came as a surprise to the
detective and there could be no suggestion that it
was in any way elicited by the detective. Had the
statement been admitted, the verdict may have been
different so the acquittals were quashed and a new
trial was ordered.
Complete case available at www.ontariocourts.on.ca

REASONABLE	
 GROUNDS	
 DOES	
 
NOT	
 REQUIRE	
 50%	
 STATISTICAL	
 
PROBABILITY
Allen v. Alberta, 2013 ABCA 187
A patrol officer arrested a man in the
alley behind a hotel for possessing a
controlled substance after finding him
smoking a marijuana cigarette. He
was handcuffed and the officer tried
to frisk him but he was uncooperative. He was then
transported to a nearby police station where he was
directed to remove his clothing down to his
underwear. The officer wanted to see if the man was
in possession of any more drugs. The man complied
and the officer searched his clothing for more drugs.
The man was released from custody without any

charges being laid and later complained about
police conduct. As a result, the officer was charged
with two disciplinary offences including unlawful or
unnecessary exercise of authority for unnecessarily
detaining, transporting and conducting a modified
strip search.

Presiding Officer
At the officer’s hearing, the Presenting
Officer alleged the strip search was
unlawful because there was insufficient
information upon which to justify it. In his
view, the officer did not have reasonable and
probable grounds to believe the person was in
possession of weapons or evidence and, in the
alternative, simple possession of marihuana is too
minor an offence to justify a strip search. The officer,
on the other hand, argued that the only reason a
strip search occurred was because the complainant
refused to cooperate with a simple frisk search. He
opined that he should not have to give up a
reasonable search just because the man would not
cooperate. Furthermore, the officer suggested that
the search was a “modified” strip search because he
did not intend to expose the complainant's private
areas.
The Presiding Officer found that there was no
justification for taking the complainant to the police
station for a more intensive search. In his view, once
the complainant was handcuffed in the alley behind
the hotel, he was under sufficient police control to
conduct the limited type of frisk search that was
warranted by the circumstances of this arrest. He
concluded that the search was a “strip search,”
regardless of the officer’s subjective intention not to
inspect the complainant's private parts, and a higher
level of justification was required for the greater
invasion of privacy resulting from a strip search.
The Presiding Officer concluded that the officer may
have had a suspicion the complainant possessed
more drugs but he did not have reasonable and
probable grounds. While a frisk search upon arrest
was reasonable, the further strip search at the station
was not. The disciplinary offence of unlawful or
unnecessary exercise of authority was substantiated.

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Volume 13 Issue 3 - May/June 2013
regardless of the intentions of the searcher.
Obviously if the search arose from some sort of
lascivious motivation it would be unreasonable,
but ... strip searches are generally viewed as
unpleasant by the police officers conducting
them.

Law Enforcement Review Board
The officer appealed the Presiding
Officer's decision to Alberta’s Law
Enforcement Review Board arguing
he erred in his interpretation of what
constituted a “strip search,” and what was required
to show reasonable and probable grounds. However,
the Board agreed this was a strip search and calling
it a “modified” strip search didn’t matter. It also
agreed that “mere suspicion” was insufficient to
support a search and, while the officer had
“possible” grounds, he did not have “probable”
grounds. The Presiding Officer’s decision was
upheld.

The key issue when measuring the acceptability
of police conduct is to determine the
reasonableness of the search, not to attempt to
place it in any rigid category. A search is
reasonable when it is authorized by law, and it is
carried out in a reasonable fashion. The police
have an established common law right on arrest
to conduct a search for weapons and evidence.
However, the method by
“Sometimes it will be
which the search is
Alberta Court of Appeal
reasonable to conduct a conducted must also be
reasonable. Sometimes it will
strip search, and
The officer then appealed
be reasonable to conduct a
the Law Enforcement
sometimes it will not, and strip search, and sometimes it
will not, and when a strip
Review Board’s decision
when
a
strip
search
is
search is reasonable it must
arguing several grounds,
be conducted in a reasonable
including whether this was a strip search
reasonable it must be
way, and at a reasonable time
and whether objective probability of
conducted in a
and place. The intensity of
finding drugs was required in order to
reasonable way, and at a any search, whether it be a
conduct the search.
frisk search or a strip search,
reasonable time and
must also be reasonable.
Was this a strip search?
Reasonableness must be
place. The intensity of
assessed having regard to all
The Court of Appeal noted that personal
any
search,
whether
it
be
of the facts, including the
searches are generally divided into three
seriousness of the crime, the
a frisk search or a strip
categories: frisk, strip and cavity. These
level of risk the police and
analytical descriptions, however, are not
search, must also be
public are exposed to, and
distinct watertight compartments or
a n y o t h e r f a c t o r s . Th e
reasonable.”
categories. The Court stated:
intensity and manner of
conducting the search must
Even within these categories, there are degrees
be proportionate to the circumstances.
of intensity. A frisk search can be superficial, or
[references omitted, paras. 17-19]
can involve the touching of sexually sensitive
parts of the body. A strip search can be more or
Here, the search could fairly be described as a
less invasive, depending on how much, and
“modified strip search.” While it fell more closely
which, clothing is removed.
into the analytical category of a strip search as
How the intensity of a search is measured does
not depend on the subjective intention of the
searcher. In other words, it is not necessary to
show that the searcher intended to visibly
inspect the subject’s private parts in order to
have a “strip search”. Some viewing of the body
of the person is inevitable whenever clothing is
removed, and the consequent invasion of
privacy and personal dignity is the same

defined in R. v. Golden, 2001 SCC 83, it did not
involve total disrobement. “The complainant was not
required to remove all of his clothes, but he was left
with only his underwear on,” said the Court. “One
can therefore envision both more intensive and less
intensive strip searches than occurred in this case.”
But whether or not the Presenting Officer had
proven on a balance of probabilities that this type or

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Volume 13 Issue 3 - May/June 2013
the arresting officer’s subjective belief that there
was a probability (beyond mere suspicion) that
he would find further evidence was reasonable,
even if it was not demonstrably statistically
probable, and even if a reviewing court or
tribunal (with the benefit of hindsight and
careful reflection) might not agree. [reference
omitted, para. 27]

intensity of search was unnecessary, did not only
depend on how the search was categorized:
In this case [the officer] had a choice. He could
have conducted a more intensive frisk search,
which would have involved a sustained touching
of the complainant’s body while searching his
clothing. Alternatively, he could have proceeded
as he did, and have the complainant remove his
outer clothing at the police station. This enabled
[the officer] to search the clothing without
touching the complainant. There was a trade off
between actual touching and the exposure
resulting from the removal of clothing. On this
issue, the views of the person to be searched
would be relevant. There were other relevant
factors, such as the location of the arrest, the
seriousness of the charges, and the rest of the
factual context. The essential question was
whether the Presenting Officer had proven on a
balance of probabilities that the choice made by
[the officer] was unreasonable, making the
search an unnecessary exercise of authority. If
the merits and disadvantages of each choice
were roughly balanced, it would not necessarily
have been unreasonable for [the officer] to
choose to proceed as he did, even if the
Presiding Officer or the Board may have made a
different choice. [para. 23]

The officer in this case subjectively believed that a
search was warranted. The issue then became
whether the Presenting Officer had proven on a
balance of probabilities that an informed objective
bystander would consider it unreasonable for the
officer to hold that belief. For greater clarity, ‘the
police do not have to show an ‘objective
probability’, nor a ‘50% statistical probability’, in
order to establish reasonable and probable
grounds”:
The real question was whether the Presenting
Officer had proven on a balance of probabilities
that the search was unreasonable. That involved
proving that it was objectively unreasonable for
[the officer] to believe that the search was a
reasonable thing to do. The objective component
of the test is not that it is probable that drugs,
weapons or other evidence will be found, but
rather that it is objectively reasonable to go
looking. [para. 31]

Did the search require objective probability?
The second question the Alberta Court of Appeal
addressed was whether the search required advance
objective probability of finding narcotics and if it
did, whether that meant greater than a 50%
statistical probability. In this case, the Court found
that both the Presiding Officer and Law Enforcement
Review Board erred in assuming that the officer had
to demonstrate there was a probability he would find
further drugs:
[T]he arresting officer must subjectively believe
he has grounds, and that subjective belief must
be objectively justifiable. “Reasonable and
probable grounds” therefore explores whether

Since the Law Enforcement Review Board erred in
deciding that “reasonable and probable grounds”
required a probability of finding more drugs, the
officer’s appeal was allowed and the matter was
remitted back to the Board for reconsideration. “The
background issue was whether a search of this
intensity was unnecessary, not whether the search
qualified in the abstract as a ‘strip search’,” said the
Court. “Considering all the circumstances, the
search may have been reasonable and necessary
even if there was not an objective probability that
more drugs would be found.”
Complete case available at www.albertacourts.ab.ca

“Reasonable and probable grounds” therefore explores whether the arresting officer’s
subjective belief that there was a probability (beyond mere suspicion) that he would find further
evidence was reasonable, even if it was not demonstrably statistically probable, and even if a
reviewing court or tribunal (with the benefit of hindsight and careful reflection) might not agree.

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Volume 13 Issue 3 - May/June 2013

“[T]he objective reasonableness of grounds must be determined on the totality of the
circumstances and is a question to be assessed from the point of a reasonable person with
the officer’s experience, training, knowledge and skills.”

REASONABLE	
 GROUNDS	
 
VIEWED	
 THROUGH	
 OFFICERʼS	
 
LENS
R. v. Moore, 2012 BCCA 400
Police received a complaint from a
local store manager of increased
drug activity in the area around a Sky
Train Station. The activity described
was consistent with the investigating
officer’s own experience, which was considerable
(300+ drug investigations), concerning the manner
in which dial-a-dope drug trafficking occurs.
Surveillance was conducted in the area on two
separate occasions and activity consistent with diala-dope drug trafficking was observed. Pedestrians
were seen to enter a car, stay a short time, exit and
leave the area or return to the Sky Train station. On
one occasion, police stopped a person believed to
be a buyer. They said they had purchased drugs from
someone in a vehicle.
On the final day of surveillance two police officers
in an unmarked police car were approached by a
man within minutes of their arrival in the area. The
man tried to enter the police car. When he could not
enter, he asked the officers what they were selling,
indicated he would wait for his “regular guy”, and
asked the officers for their number so he could buy
from them in the future. He then returned to a spot
next to the stairs at the Sky Train station. About 10
minutes later the man approached a Volvo that had
just arrived in the area. The man entered the front
passenger seat. The lead investigator directed an
arrest and the surveillance team moved in and
arrested the vehicle occupants. Police seized two
$20 bills from the accused’s lap and 41 pieces of
rock cocaine from a prescription pill box in the
centre console. A cell phone, which rang
continuously, and a black purse with $150 was also
seized. He was charged with trafficking offences.

British Columbia Provincial Court
The accused argued that the police did
not have the requisite subjective and
objective grounds to arrest him and
therefore the contemporaneous search of
his vehicle and seizure of cocaine violated his right
to be secure against unreasonable search and
seizure under s. 8 of the Charter. The judge found
the officer subjectively believed he had the grounds
to make the arrest, but lacked the objective grounds
such that there was a s. 8 breach. In his view, there
were insufficient grounds to conclude the driver of
the Volvo was a drug dealer such that a drug
transaction had occurred or was about to occur.
However, the judge held the officer had sufficient
grounds for an investigative detention, thus the
accused’ rights under s. 9 of the Charter were not
infringed. In his s. 24(2) analysis on the s. 8 breach,
the judge admitted the evidence. The officer held an
honest belief that he had reasonable grounds to
direct an arrest and acted in good faith. There were
grounds for an investigative detention and the search
was conducted reasonably. The accused was
convicted of trafficking in cocaine and possessing
cocaine for the purpose of trafficking.

British Columbia Court of Appeal
The accused contended that the
judge erred in finding he had not
been arbitrary detained under s. 9
of the Charter. Furthermore, he
argued the judge erred in his s. 24(2) analysis. The
Crown, on the other hand, submitted that the arrest
was objectively reasonable and, in any event, the
evidence was properly admitted.

Arrest
For an arrest to be lawful, the arresting officer must
have a subjective belief that an indictable offence
has been or is about to be committed, and the
grounds for their belief must be objectively

PAGE 28

Volume 13 Issue 3 - May/June 2013
reasonable. As for whether the objective test has
been met, “the objective reasonableness of grounds
must be determined on the totality of the
circumstances and is a question to be assessed from
the point of a reasonable person with the officer’s
experience, training, knowledge and skills.” Here,
objective reasonableness was to be viewed from the
perspective of “a reasonable person standing in the
shoes of [the officer] with his considerable
experience in drug investigations, his training, his
knowledge and his skills.” Justice Saunder’s also
noted:
Each case must be determined on its own facts,
considering the extent of the police’s direct
knowledge, the extent and duration of their
observations, the nature of the complaint, the
events and timing of the transaction, other
sources of information and such other relevant
factors as may be present. [para. 19]

It would be nonsensical to consider that [the
officer’s] decision, and instruction, were to be
applied literally without consideration of the
reasonableness of the next vehicle being one
involved in a dial-a-dope transaction. As we
know, the next vehicle was not, for example, an
ambulance or marked police car, but rather a
vehicle much like those observed during the
surveillance. Indeed, it was a grey Volvo similar
to one observed the preceding day. [para. 19]

The accused’s Charter rights had not been violated
by his arrest and the subsequent search of his
vehicle and seizure of cocaine was lawful. The
accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

In this case, the Court of Appeal found it was
objectively reasonable for police to conclude the
man’s conversation with them concerned the
purchase of drugs and that he was waiting for his
regular supplier of drugs. “Further, the nature of the
encounter indicated a purchaser seeking to buy
drugs from a mobile dispenser, consistent with a
dial-a-dope transaction,” said Justice Saunders “On
this event, in my view, it was objectively reasonable
for [the officer] to form the conclusion that the next
vehicle that the man got into was probably his
regular dealer.” Then, when then accused’s Volvo
arrived, the man’s “behaviour was consistent with
behaviour in dial-a-dope transactions, was
consistent with behaviours seen at the Sky Train
station during the surveillance, and was consistent
with this individual’s approach to the two police
officers when he had attempted to enter their vehicle
before engaging the conversation about purchasing
drugs.”
Finally, the lead investigator’s decision to instruct his
surveillance team to stop the next vehicle that the
man entered did not indicate an arbitrariness that
contradicted the existence of objectively reasonable
grounds for arrest. In Justice Saunder’s view, this
evidence required a sensible review:

ARRESTEE	
 WAIVED	
 RIGHT	
 TO	
 
COUNSEL:
NO	
 s.	
 10(b)	
 BREACH	
 
R. v. Quesnelle, 2013 ONCA 180
After the accused was arrested at his
laundry shop for sexual offences and
robbery, he was advised of his right
to counsel and cautioned that
anything he said could be used
against him in court. He said he would like to speak
to a lawyer. In the police car while being transported
to the police station he was again advised of his right
to counsel and cautioned. Again, he reiterated his
desire to speak to counsel. Upon arrival at the police
station, he was advised that he could call a lawyer of
his choice or speak to Duty Counsel for free. This
time he said he just wanted to speak to the
investigating detective. Then at the outset of a
videotaped interview, the detective again told the
accused he could call his lawyer or, if he didn’t have
one, could call legal aid or duty counsel. A
discussion they ensued about whether he was only
arrested or charged with a crime. He said this, “If
I’ve just been arrested for this crime ... I have no
problems talking with, if you’re charging me with it I
want to speak to a lawyer please.” The detective
replied, “At this stage of the game you’ve just been
arrested.” The accused then declined a further
opportunity to speak to counsel and provided a
statement.

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Volume 13 Issue 3 - May/June 2013

CROWN	
 BEARS	
 BURDEN	
 OF	
 
ESTABLISHING	
 STATEMENTʼS	
 
VOLUNTARINESS

Ontario Superior Court of Justice
Although he had been advised four
times of his right to counsel and
cautioned that anything he did say could
be used against him in court, the
accused argued that he asked to speak to counsel
twice before giving his statement and was denied the
opportunity to exercise that right. He submitted that
police encouraged him to speak to them before he
had a chance to speak to a lawyer. The Crown, on
the other hand, contended that the accused had
been read his right to counsel and cautioned four
times before giving his videotaped statement. He
was fully aware that any statement could be used
against him in court and confirmed the waiver of his
right to counsel at the outset of the videotaped
statement. The judge concluded there were no
promises or inducements made and the accused was
well-aware of his right to speak to counsel before he
said anything to police. He waived his right to
counsel in favour of his immediate desire to speak
without regard for the consequences. There was no
s. 10(b) breach, the statement was admissible and
the accused was convicted on two counts each of
sexual assault and assault.

Ontario Court of Appeal
The accused argued, among other
grounds, that the trial judge erred
in admitting his statement. The
Ontario Court of Appeal, however,
held that the trial judge considered the relevant
circumstances and properly applied the law in
determining whether the statement was admissible.
The Appeal Court also found it worth noting that the
accused was videotaped saying he did not need to
speak to a lawyer so long as he had only been
arrested, not charged. This ground of appeal was
dismissed but the accused’s conviction appeal was
allowed on other grounds.
Complete case available at www.ontariocourts.on.ca

R. v. Wilkinson, 2013 SKCA 46
As a result of a drug trafficking
investigation, the police stopped
t h e a c c u s e d ’s v e h i c l e a n d
questioned him at roadside. He
admitted to possessing marijuana
and his vehicle was searched. A
small bag of marijuana was found in plain view. He
was arrested, transported to the police station and
searched. A baggie containing one ounce of cocaine
was found hidden in his sock. He contacted legal
aid and then, about 17 1/2 hours after his arrest, he
was interviewed. During his statement he admitted
that he intended to sell the cocaine. He was charged
with possessing cocaine for the purpose of
trafficking.

Saskatchewan Provincial Court
The trial judge concluded that the Crown
had failed to discharge its burden in
proving that the accused’s statement was
voluntary beyond a reasonable doubt.
The judge noted that the Crown had not called any
evidence regarding the interaction between the
police officers and the accused during the 17 1/2
hour gap between his arrest and the recording of his
statement.
The Crown failed to establish a sufficient record of
the interaction between the accused and police as to
eliminate any reasonable doubt about the
voluntariness of the statement. Thus, the accused's
statement was excluded. The trial judge then ruled
that the Crown had not established beyond a
reasonable doubt the possession of the cocaine was
for the purpose of trafficking. However, the accused
was nonetheless convicted of the lesser but included
offence of simple possession.

“[A] statement is not admissible if it is made under circumstances that raise a reasonable
doubt as to its voluntariness. ... It is further well-established that the Crown bears the burden
of proving beyond a reasonable doubt the admissibility, or voluntariness, of a statement.”
PAGE 30

Volume 13 Issue 3 - May/June 2013

Saskatchewan Court of Appeal
The Crown argued that the trial
judge erred in excluding the
accused's statement. In the
Crown's view, it was not required
to produce evidence of everything said to or done in
the presence of the accused in order to meet its
burden of proving voluntariness.

Voluntariness

that no threat, promise, inducement or coercive
tactic was used by any person in authority to
undermine the voluntariness of the statement). “The
judge could not be expected to give the benefit of
the reasonable doubt arising from the clear gaps in
the evidentiary record to the Crown,” said Justice
Caldwell. The trial judge did not err in holding the
Crown had not met its burden of proof or in
excluding the statement from evidence. The Crown’s
appeal was dismissed.
Complete case available at www.canlii.org

Justice Caldwell, delivering the opinion of the
Saskatchewan Court of Appeal, described the
common law confessions rule this way:

PHYSICAL	
 SEARCH	
 MAY	
 
ACCOMPANY	
 DRUG	
 DOG	
 HIT
R. v. Frieburg, 2013 MBCA 40

[A] statement is not admissible if it is made
under circumstances that raise a reasonable
doubt as to its voluntariness. Accordingly, a trial
j u d g e m u s t “ s t r ive t o u n d e r s t a n d t h e
circumstances surrounding the [statement] and
ask if it gives rise to a reasonable doubt as to the
[statement’s] voluntariness.” It is further wellestablished that the Crown bears the burden of
proving beyond a reasonable doubt the
admissibility, or voluntariness, of a statement.
This means it is incumbent on the Crown to
show affirmatively that an accused was properly
treated and not questioned outside the context
of the taking of the statement in question. In
practical terms, the Crown must place before the
t r i a l j u d g e a l l r e l e va n t c i rc u m s t a n c e s
surrounding the taking of the statement so that
the trial judge, having all of the facts, can form
his or her own opinion as to whether the
statement was free and voluntary. [references
omitted, para. 11]

In this case, although “the Crown is not required to
call each and every officer who had contact with an
accused”, there were two particular gaps in the
evidence. First, the officer transporting the accused
from the place of arrest to the police station was not
called. Second, there was no evidence as to how the
accused’s call to legal aid was facilitated nor any
evidence as to what had been said by persons in
authority to him during this interaction. Without
evidence during the time police clearly had some
significant interaction with the accused, the trial
judge was unable to conclude, beyond a reasonable
doubt, that the Crown had met its onus (proving

While surveilling a residence,
police saw the accused park a
Dodge Charger across the street
from it at 11:45 pm. She and two
men got out and went into the
residence, leaving about 35 minutes later in a
Chevrolet Cavalier registered to her mother. At about
2:00 am police obtained a search warrant for the
residence. Before the warrant was executed, police
located and stopped the Cavalier at 3:00 am, one
mile from the residence. The accused was arrested
for possessing drugs for the purpose of trafficking
and advised of her rights. Police seized keys to both
the Cavalier and the Charger from her and she was
transported to a correctional centre. A police dog
attended and did a sniff search around the Cavalier,
indicating positive for drugs. Five cell phones, $845
and a can of bear spray were found and seized, but
no drugs were located. A warrant was served on the
residence at 3:25 am and a half pound of marijuana,
two digital scales, three cell phones, score sheets
and other drug paraphernalia were found in the
house. At about 4:00 am, a sniff search of the
Charger parked on the street was conducted. It had
air fresheners on the rear-view mirror and Bounce
dryer sheets in the air vents. This suggested the
possible presence of illegal drugs. When the snifferdog indicated the presence of drugs, the Charger
was unlocked using the keys seized from the
accused and a search turned up 850 ecstasy pills in
the trunk.

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Volume 13 Issue 3 - May/June 2013

Manitoba Court of Queen’s Bench
The judge found the Charger was not
being operated by the accused at the time
of the arrest and the search occurred long
after it. The search of the Charger was not
incidental to arrest, infringed s. 8 of the Charter and
the evidence of the ecstasy found was excluded as
evidence under s. 24(2). The accused was acquitted
of possessing the ecstasy for the purpose of
trafficking.

evidence and facilitate the search warrant. These
were not valid justifications for an arrest. Justice
Beard stated:
Neither officer stated that the reason for the
arrest was that he, personally, believed that there
were reasonable grounds to believe that the
accused had committed an indictable offence or
an offence under the CDSA. Both indicated that
the reason for the arrest at that particular time
was to keep her away from the residence for
optimal officer safety during the search of that
residence. That is not a valid reason for an arrest.
[the officer] suggested that another reason for the
arrest was to prevent the destruction of
evidence. The preservation of evidence is also
not a valid reason to arrest, if there is no proof
that the officer had the required subjective
grounds at the time of the arrest to make the
arrest. [para. 23]

Manitoba Court of Appeal
The Crown appealed the accused’s
acquittal arguing that the judge
erred in finding that the search of
the Charger breached s. 8 of the
Charter rights and in excluding the evidence. Among
the Crown’s grounds of appeal, the alleged mistakes
made by the trial judge included issues concerning
searches incidental to arrest, privacy expectations
and whether the search of the Charger was lawful.

Search Incidental to Arrest
The Crown argued that the search of the Charger
was lawful as an incident to the accused’s arrest at
3:00 am. But Justice Beard, writing the Court of
Appeal’s decision, found the arrest was not lawful, a
prerequisite to a valid search incident to an arrest. A
warrantless arrest under s. 495(1) of the Criminal
Code imparts a two part test. “The first part of the
test requires a subjective, personal belief on the part
of the arresting officer that there were reasonable
grounds for the arrest and the second part requires
objective justification for the subjective belief” said
Justice Beard. “In other words, a reasonable person
in the place of the arresting officer must be able to
conclude that there were reasonable grounds for the
arrest.”

Nor would the Court of Appeal infer that the officers
had the required subjective belief because police
had obtained a search warrant, which would require
a judicial justice be satisfied that there were
reasonable grounds to believe that an offence had
been committed. There was no evidence as to the
officers’ understanding of the relationship between
obtaining a search warrant and making an arrest. The
issuing of a search warrant did not justify arresting
the accused and lodging her at the correctional
institute. The trial judge’s conclusion that the
personal belief of the police to arrest the accused
was based on the authority of the CDSA search
warrant, rather than using the warrant as grounds for
the arrest, was a factual finding that was not
disturbed by the Court of Appeal:

In this case, the officers had obtained a search
warrant and, while waiting to execute it, decided to
look for the accused. When she was located, her car
was stopped and she was arrested. But officers
testified that the operative reasons for the arrest were
to optimize officer safety by keeping people away
from the residence, prevent the destruction of

PAGE 32

In this case, the issue is not whether the officers
understood the law, but what they subjectively,
that is, personally, believed. The law is clear that
the officer must have a subjective belief that
there are reasonable grounds to make the arrest.
The officers, although prompted, did not give
that testimony. This is not a mistake of law, but a
lack of evidence. The search warrant cannot fill
that evidentiary gap, in the face of the officers’
testimony of their reason for the arrest and the
trial judge’s finding of fact in that regard .

Volume 13 Issue 3 - May/June 2013
For these reasons, I would find that the arrest of
the accused at 3:00 a.m. was not a lawful arrest
and, therefore, I would have found that the
search of the Dodge Charger on the basis that it
was a search incidental to a lawful arrest at 3:00
a.m. was an unreasonable search, contrary to s.
8 of the Charter. [paras. 28-29]

on the person to be searched. In this case, the trial
judge concluded that the police had the requisite
suspicion to deploy the sniffer-dog to search the
Charger. The issue for the Court of Appeal was
whether police had the common law authority to
proceed with a physical search of the area indicated
by the dog without obtaining a search warrant. Here,
the area to be searched was a locked and alarmed
Justice Beard also rejected the notion that the search
private vehicle (Charger) parked on a public street.
was incidental to arrest because at the
Justice Beard concluded
time the police conducted the search
“[T]he common law permits the that the common law
they had reasonable grounds to arrest
the accused immediately before police to do a physical search of principles for warrantless
s n i f f e r- d o g s e a r c h e s
searching the Charger. In some cases, a
the area indicated positive by
includes “police authority
search incidental to arrest can precede
the
sniffer-dog
for
the
item
to physically search the
the arrest if the grounds to arrest exist at
indicated by the sniffer-dog, in area indicated positive for
the time of the search. In this case,
drugs (or other items,
however, the search and the arrest did
this case, drugs, without the
such as explosives,
not occur at the same location, as part
depending on the dog’s
police obtaining a search
of the same transaction nor did the
arrest immediately follow the search.
warrant. This physical search is training) by the sniffer
dogs without a warrant as
The accused was arrested driving the
not limited to those situations
being an appropriate
Cavalier an hour before the search of the
extension of the common
where there is evidence of
Charger, which was parked about a mile
law regarding police
away from the arrest location. So
imminent danger of loss,
powers to conduct a
although the search of the Charger was
removal,
destruction
or
warrantless search for the
carried out for a valid purpose
connected to arrest, it was not within
disappearance of any evidence p u r p o s e o f c r i m i n a l
investigations.” And these
the accused’s “immediate surroundings.”
that might be found.”
common-law sniffer dog
Justice Beard concluded:
searches are not limited
to
situations
of
urgency.
She
continued:
In summary, to be a lawful search incidental to
arrest, the search must be incidental to the
[T]he common law permits the police to do a
arrest. The search of the vehicle parked on a
physical search of the area indicated positive by
street and located a mile away from the location
the sniffer-dog for the item indicated by the
of the arrest, in the circumstances of this case,
sniffer-dog, in this case, drugs, without the
was not a search of the “immediate
police obtaining a search warrant. This physical
surroundings” of the arrest location and, as a
search is not limited to those situations where
result, was not a search incidental to the arrest.
there is evidence of imminent danger of loss,
Thus, I would have found that the search of the
removal, destruction or disappearance of any
Dodge Charger on the basis that it was a search
evidence that might be found. Thus, I find that
incidental to, but preceding, a lawful arrest was
the trial judge erred in law when he found that
an unreasonable search that breached s. 8 of the
the physical search of the trunk was a breach of
Charter. [para. 52]
the accused’s s. 8 rights because it was a
warrantless search and “[t]here was an absence
Sniffer-dog Searches
of evidence of imminent danger of the loss,
removal, destruction or disappearance of any
The police may use a dog to sniff for drugs without a
evidence that might be found in the
warrant provided they have reasonable grounds to
Charger.” [para. 95]
suspect the presence of contraband at the place or

PAGE 33

Volume 13 Issue 3 - May/June 2013

DETENTION:	
 OFFICERʼS	
 NONCOMMUNICATED	
 INTENTIONS	
 
NOT	
 RELEVANT

And further:
In this case, the police were lawfully present at
the Dodge Charger, in that the Dodge Charger
was parked on a public street and the police
were not required to trespass on private property
to access it. The search of the Dodge Charger
was not random or arbitrary, in that the police
were executing a search warrant at 828 Dennis
Street, the Dodge Charger was parked in front of,
and across the road from, 828 Dennis Street, and
there was evidence to link it to that address.

R. v. Koczab, 2013 MBCA 43

The police had a reasonable suspicion that there
were drugs in the Dodge Charger, so they were
authorized to conduct a common law sniffer-dog
search. Upon the dog making the positive
indication at the trunk, the police were
authorized to do a physical search of that area
without obtaining a warrant.
Finally, upon opening the trunk, the police
found a package. The positive indication by the
sniffer-dog, together with the information that
formed the reasonable suspicion leading to the
deployment of the dog, provided the reasonable
grounds under s. 489(2) for the police to seize
the package. [paras. 98-100]

The search of the Charger’s trunk was reasonable,
the seizure of the package found therein was lawful
and no s. 8 Charter infringement occurred. The
evidence was admissible and the trial judge erred by
excluding it under s. 24(2). The Crown’s appeal was
allowed and a new trial was ordered.
Complete case available at www.canlii.org

BY THE BOOK:
Power	
 of	
 Seizure: Criminal Code
s. 489(2) Every peace officer … who is lawfully
present in a place pursuant to a warrant or
otherwise in the execution of duties may,
without a warrant, seize any thing that the
officer believes on reasonable grounds ... (c) will afford
evidence in respect of an offence against this or any other
Act of Parliament.

The accused, while driving his
vehicle from British Columbia to
Ontario, was pulled over for
speeding in Manitoba. The police
officer, after requesting a driver’s
licence and registration, noticed the vehicle was
registered to the accused in British Columbia but his
driver’s licence was issued in Ontario. When
questioned about the different addresses the accused
replied that he worked in the movie industry and
lived at both places. This explanation seemed
familiar to the officer. A routine police check
revealed that the accused had been fingerprinted in
the past for theft and drug charges, but his record
showed only one criminal conviction for theft. The
officer went back to the accused’s vehicle, returned
his documents, gave him a verbal warning for
speeding and told him that he was free to go. Only
10 minutes had elapsed since the beginning of the
traffic stop.
The police officer then, believing he may have
stopped the accused on a prior occasion, asked him
if he would mind answering a few questions. The
accused replied, “Yeah go ahead.” The officer asked
a series of questions which led him to ask what the
accused had in his back seat. He replied that he had
a couple of suitcases but denied that there was any
liquor, drugs or large amounts of cash in the
vehicle. When asked “So what’s in the suitcases?”
the accused said, “Clothes, do you want to see?”
The officer said “Sure.” After a brief exchange, the
accused, without prompting, opened the back door
and the suitcases. The officer did not search the
suitcases, but noticed that the carpet had been
altered near the back seats. This caused the officer to
think that there might be a hidden compartment. The
officer had considerable experience in detecting and
locating such compartments. He had personally
investigated and discovered hidden compartments in
approximately 50 other cases. He told the accused
“I just have to go to my car for a minute,” did so and
called for back-up. The officer intended to arrest the

PAGE 34

Volume 13 Issue 3 - May/June 2013
accused but, before doing so, decided he would give
the accused an opportunity to provide an innocent
explanation for the altered carpet. He went back to
the accused and asked him the following three
questions:

The cocaine was excluded as evidence under s. 24
(2) and the accused was acquitted of trafficking and
possession for the purpose of trafficking.

1. Have you had any bodywork done to the
vehicle? Answer: No
2. Have you had any panels removed? Answer:
No
3. Do the back seats fold down? Answer: Yeah, I’ll
show you.

The Crown appealed the acquittal
arguing, in part, that the trial judge
erred in finding that the accused
had been psychologically detained
by the police and therefore was entitled to be
advised of his s. 10(b) rights before being asked the
last three questions.

Without being asked, the accused proceeded to fold
the back seats forward and the officer noticed more
damage to the carpet and smelled the strong odour
of fresh silicone, a product the officer knew was not
used in factory vehicle installations. Believing the
fresh smell of silicone indicated the recent use to
create a sealed hidden compartment that may
contain drugs, the officer arrested the accused for
drug possession and advised him of his right to
counsel. A vehicle search incidental to arrest
revealed 17 one-kilogram bricks of cocaine in a
silicone-sealed hidden compartment underneath the
backseat. The officer returned to the accused,
arrested him for cocaine trafficking and re-advised
him of his rights. He was again given his right to
counsel but declined to contact anyone.

Manitoba Court of Queen’s Bench
The trial judge concluded that the officer
detained the accused before he asked the
three questions. In his view, the accused
was detained when the officer formulated
his intention to arrest, said he would be back in a
minute, returned to his car, called for back-up and
came back to the SUV to ask the first question. The
detention did not breach s. 9 of the Charter because
the judge concluded the officer had reasonable
grounds to suspect the accused was a drug courier
before he called for back-up. However, since the
accused was detained before the officer asked him
the last three questions, his rights under s. 10 were
breached. He had not been advised of the reason for
his detention (s. 10(a)) nor was he told of his right to
counsel before answering the questions (s. 10(b)).

Manitoba Court of Appeal

A person is detained such that Charter rights are
triggered if they can demonstrate that they had been
subject to significant psychologically restraint in the
circumstances. The test to determine whether the
there has been “significant” psychological restraint is
whether the police conduct would cause a
reasonable person in the accused’s circumstances to
conclude that they were not free to go and had to
comply with the police direction or demand. This
approach to determining detention has been
described as “claimant” or “detainee-centered
objective analysis.” Since the test is detaineecentered, the significance of the officer’s noncommunicated mindset if largely removed. Factors
to consider include the circumstances giving rise to
the encounter, the nature of the police conduct and
the particular characteristics or circumstances of the
individual.
Here, the Crown submitted that the trial judge erred
in considering the officer’s non-communicated
thoughts and intentions to arrest the accused in the
detainee-centered objective analysis. The accused,
on the contrary, suggested that the trial judge
correctly applied the proper legal test. Justice
Chartier, authoring the Manitoba Court of Appeal’s
majority opinion, concluded that the trial judge’s
finding of detention was based on the following
facts:

PAGE 35

1. the officer’s non-communicated belief that he
was going to arrest the accused;
2. the officer’s implied direction or order to the
accused that he was not to leave;

Volume 13 Issue 3 - May/June 2013
3. the officer’s return to his car;
4. the officer’s non-communicated call for backup; and
5. the officer’s non-communicated intention to
come back and to ask the accused more
questions to see if there was an innocent
explanation.
The problem with this, the majority noted, was that
facts 1, 4 and 5 (the officer’s intentions or thoughts)
would not have been known to the accused because
they had not been communicated to him and
therefore were irrelevant in a detainee-centered
objective analysis. Fact 3 was neutral while fact 2 the implied direction - had to be accepted on
a p p e a l . Th u s , t h e t r i a l j u d g e i m p r o p e r l y
overemphasized the officer’s non-communicated
intent in concluding there had been a detention.
Justice Chartier put the detainee-centered objective
approach this way:

• Circumstances of the Encounter. The accused
was handed back his documents, told he was free
to go, asked whether he would agree to answer a
few questions and did consent to answer them.
The officer’s words, “I just have to go to my car for
a minute” - characterized by the trial judge as an
implied direction - were clearly not an order not
to leave. There was no evidence that the officer
made a gesture, such as lifting his index finger to
indicate that the accused should wait, or that the
the officer’s words were expressed in an
authoritative tone of voice. More than just the
words the officer chose was needed. And
throughout the encounter, the accused was
relaxed, composed and cooperative, opening the
back door as well as the suitcases, and inviting
the officer to look into his suitcases and behind
the rear seat, all on his own initiative. At no time
during the encounter did the accused’s level of
cooperation, conversation or interaction with the
police change.
• Nature of the Police Conduct. There was no
physical contact between the officer and the
accused and there interaction was polite and
cordial. No voices were raised and there was no
evidence that any form of intimidation or
coercion was used. The duration of the encounter
was relatively short: 14 minutes had elapsed from
the time the accused was told he was free to go
until the time of arrest. The officer always
confirmed that the accused was letting him ask
further questions and was letting him look into the
trunk of the car. It was made clear to the accused,
at least inferentially, that he had a choice in the
interaction and his consent and cooperation were
given each step of the way.

[T]the test to determine whether the accused has
demonstrated the required “significant”
psychological restraint is whether the police
conduct would cause a reasonable person in the
accused’s circumstances to conclude that the
accused was not free to go and had to answer
the questions posed by the officer when he
returned from his car. In essence, a trial judge is
to evaluate the overall situation as it would be
perceived by a reasonable person standing in the
shoes of the accused, having regard to the
following: to what that person would have said,
heard, seen, thought or done; to the officer’s
words or actions which would have been heard
or seen by the accused; to any relevant facts
surrounding the encounter; and to the accused’s
personal circumstances. [para. 44]

So then, with the remaining facts, would a
reasonable person, standing in the shoes of the
accused, believe he was detained. The majority
didn’t think so. Although not fatal to a determination
of detention, the accused chose not to testify
therefore there was no evidence as to how he
regarded, understood or interpreted the interaction
with police. Using the testimony of the officer the
majority concluded:

• Circumstances of the Accused. He was 29 years
old and seemed confident and relaxed. There was
no evidence that he was in any way intimidated
by the conduct of the police or by the situation
nor any suggestion that he was under any form of
duress or compulsion to comply. Instead, he was
the one encouraging the officer to look inside his
vehicle and at his personal belongings. There was
nothing to show that the accused’s compliance
and cooperation with the officer was anything but
voluntary.

PAGE 36

Volume 13 Issue 3 - May/June 2013
Had the trial judge considered the facts using the
correct detainee-centered objective approach and
not improperly focussed on the officer’s noncommunicated intent there would not have been a
finding of a psychological detention. Thus, the trial
judge’s conclusion of a detention was unreasonable
and not supported by the evidence. There was no s.
10 Charter breach and, even if there was, the
majority would have ruled the evidence admissible
under s. 24(2). Since an acquittal would not
necessarily have followed had the trial judge
properly applied the law, the Crown’s appeal was
allowed and a new trial was ordered.

been psychologically detained and that his s. 10
rights had been breached:

A Second Opinion

He also would not have interfered with the trial
judge’s ruling on the exclusion of evidence under s.
24(2).

Justice Monnin, in dissent, concluded that the trial
judge did not err in finding that the accused had

In my view, a reasonable person, having been
questioned aggressively on issues relating to
drug convictions and whether he was currently
involved in drug trafficking, having previously
been told he was free to go, but then indirectly
told to stay where he was, would likely conclude
that he was not free to go and had to comply
with that directive. It would take a brave soul in
the circumstances to defy the state actor and go
merrily on his way. He would, no doubt, soon
be involved in a police chase. [para. 93]

Complete case available at www.canlii.org

Canadian Forces Military Police National Motorcycle Relay Ride
Once again, Military Police, volunteers, and civilian supporters of our troops are
gearing up for the 5th Annual Military Police National Motorcycle Relay Ride,
which is due to hit the open road in St. John’s, NL on August 2.
On April 23, Major Bob Edwards, the 2012 Ontario Ride Captain, accompanied by
other riders, presented a $75,000 cheque to the Children’s Wish Foundation and
the Military Police Fund for Blind Children. These funds were raised during the 2012
coast-to-coast ride, which set a new record for the ride’s fundraising initiatives.
“We are extremely proud of the significant contribution made by the MPNMRR to the Military Police Fund for Blind
Children,” said L/Col. Gilles Sansterre, Chair of the fund, “The lives of many visually impaired children across this
country are enriched by this generous donation.”
The MPNMRR is the longest annual motorcycle relay in the world with our National Riders covering in excess of
10,000 kilometers during the event. On August 2, the 5th Annual MPNMRR kicks off on “The Rock” where motorcycle
enthusiasts will roll their throttles out of St. John’s, NL and will visit all of the major military establishments across
Canada, arriving in beautiful Victoria, BC on August 25. Courageous riders will also venture south from the frigid
conditions of the Northwest Territories for the second year in a row, riding a whopping 3,459 kilometers.
Since riders rolled out of St John’s, NL for the first ride in 2009, over $170,000 has been raised for numerous charities.
This year funds raised will support the Military Police Fund for Blind Children nationwide and the Children’s Wish
Foundation in select provinces.
Lamont French, the MPNMRR National Chairperson, has been involved in the ride since
its initial launch in 2009 and is very passionate about fundraising for kids stating, “The
privilege of paying it forward to children is an honour.”
Join the 5th Annual Military Police National Motorcycle Relay Ride, as it rolls through
your area between August 2 and 25. All motorcycle enthusiasts are welcome to
participate, whether it is as a national, provincial or local rider. For more information on
the ride, how to register, become a sponsor, donate, or participate in our online
auctions, visit the MPNMRR website at: www.mpnmrr.ca. For more information on the
charities the MPNMRR represents, visit www.mpfbc.com and www.childrenswish.ca.

PAGE 37

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

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