POLICE ACADEMY

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

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

SCHOOL SEARCH WITHOUT
REASONABLE GROUNDS
IMPROPER
R. v. A.M., 2004 ONCJ 98
A high school principal had a
standing invitation with the
local police to use drug detector
dogs at the school. The school
had a zero tolerance policy for drugs and the
students were aware of both the policy and the
use of drug dogs. The police attended the school
and asked for and were granted permission to
search for drugs. An announcement was made
over the school P.A. system advising of the
search and that students were to remain in their
classrooms. During a search of the gymnasium, a
drug dog indicated on a back pack. It was
searched and police found 10 bags of marihuana,
ten magic mushrooms (psilocybin), and other drug
paraphernalia. The accused, a youth, was charged
with possession of marihuana for the purpose of
trafficking and possession of psilocybin.
Although a search without a warrant is prima
facie unreasonable, “the absence of a Warrant
for a search conducted by school authorities in a
school setting does not render the search
unreasonable.” However, Justice Hornblower of
the Ontario Court of Justice found that a
search—even in a school setting—must be based
on reasonable grounds. Without it, the search
will not be reasonable. In this case, there were
no reasonable grounds. Although the principal
may have had a reasonable belief drugs would be
at the school based on what he was told by
neighbours and parents of students school, this
information was all disclosed to him prior to the

Volume 4 Issue 5
September/October 2004

day the police arrived. In other words, a
reasonably well educated guess that on any given
day drugs would be found in the school is not
enough.
The court also found the search in this case to
be a police search, rather than a school search—
even though there was a general invitation from
the school. Justice Hornblower stated:
The fact that school authorities on an earlier
occasion requested a search by police does not
convert the search to one by school
authorities. While the search of the
gymnasium was done at [the principal’s]
request, that was the extent of the
involvement of any school official in that
search. The search of the school was a
warrantless search. It was a search for which
no judicial officer could issue a Warrant,
there being no reasonable grounds to believe
drugs would be found. The fact that drugs
were found after the fact cannot be relied
upon to support a finding of reasonable
grounds before the fact. And, although the
principal's belief that drugs would be found in
the school might not be seen to be
unreasonable, it seems equally likely that in any
gathering of several hundred or more people,
drugs are likely to be found. Such a likelihood,
however, does not constitute reasonable
grounds. [para. 19]

Having found a s.8 Charter violation, the
evidence was excluded. Although the evidence
would not effect trial fairness and was on the
less serious end of the scale, admitting it would
bring the administration of justice into
disrepute by suggesting that “persons in the
same situation as [the accused] have no rights.”
The charges were dismissed.

FINDING FUN IN FITNESS

HIGHLIGHTS IN THIS ISSUE
Pg.
1

School Search Without Reasonable Grounds
Improper
Detention Arbitrary, Breath Samples Excluded

3

Charter Warning Necessary if Roadside
Sample not Forthwith

4

Pass-On Information OK for Articulable
Cause

6

ID

Stop

6

Detention

10

No Need to Charter Before Roadside
Suspicion Formed

11

Charter Warning Suspended During Impaired
Investigation

12

Search During
Unreasonable

Investigative

Vehicle Search Incident
Unreasonable

to

Fraser Valley Law Enforcement Conference
12
Unless otherwise noted, all articles are authored by
Sgt. Mike Novakowski, MA (Abbotsford Police). 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 are
not necessarily the opinions of the Justice Institute of
British Columbia. “In Service: 10-8” welcomes your
comments on or contributions to this newsletter. If you
would like to be added to our electronic distribution list
e-mail Mike Novakowski at mnovakowski@jibc.bc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

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

2

Sgt. Kelly Keith
Mental Toughness
During recruit training I do a Lecture on Fear
and Anger Management. Part of the lecture is
about Mental Toughness. I was reviewing a
fitness article on Mental Toughness and the
more I think about it, the more I see how
important Mental Toughness is to exercise.
Mental Toughness is what often separates the
people who exercise and the people that don’t.
Some Mental Toughness suggestions:
1)
2)

3)

4)
5)

6)

7)
8)
9)
10)
11)

Get an unshakeable belief in achieving your
goals;
Be prepared for setbacks and have the
determination to get past them and
succeed;
Have an unshakable belief that you possess
the qualities and ability to be better than
your opponents;
Always stay focused on the task at hand;
Push back the boundaries of emotional and
physical pain while still maintaining
technique and effort;
Do not allow yourself to be adversely
affected by your bad or your opponents
good performance;
Thrive on the pressure of competition;
Don’t focus on the uncontrollable;
Don’t be afraid to talk to people who have
been there and done that;
Think about the solutions to your problems
rather than dwelling on them; and
Get comfortable with the unfamiliar

In the Anger part of the lecture I go into the
positives of Anger (after I’ve gone over the
negatives). The two positives that I outline are:
1)

2)

www.jibc.bc.ca

Appropriately channelled Anger can enable
you to keep fighting and/or trying during a
crisis situation.; and
Appropriate Anger allows us to be
assertive; to stand up for ourselves and

Volume 4 Issue 5
September/October 2004

even plays
presence.

a

small

role

in

command

Anger can also play a role in fitness if it is
channelled correctly. Go ahead “Get Angry at
Yourself!!!!!”
The Movie “CHOKE” is about Rickson Gracie and
his fights in the Vale Tudo competitions. During
an interview with Gracie’s wife, she states that
there are only two ways that Rickson Gracie will
lose; 1) he gets knocked out or choked
unconscious or 2) he gets killed. This may seem a
tad mellow dramatic, however the mental
toughness this guy has is second to no one. He’s
got a six-pack and can fight round after round
without getting tired!
While I’m talking about this side of fitness – if
your having a weight work-out don’t forget to
squeeze the muscle your working at the top
portion of the rep. This enhances the mind
muscle connection, enhances the pump and
muscle definition. Flex the muscle between reps
to get the same results.

Biking into the Wind
The best way to cut through the wind on your
bike is to align your back with your head and
keep your side-to-side motion of your head at a
minimum. Some other quick tip reminders:
1)
2)
3)
4)
5)
6)

7)

Don’t sacrifice form for poundage;
Don’t lean on cardio equipment;
Always warm up – get the blood flowing;
If you Run – Don’t skimp on running shoes –
buy at a running store;
Don’t walk into the gym without a plan;
Whether weight training or cardio –
remember the importance of proper
breathing; and
Drink lots of water before, during and
after.

before SUBMISSION. In any altercation
(police, street fight, competition fight) the one
factor that is a constant is the winning shot or
submission most likely came from the person who
had the POSITION of advantage. The Gracie’s
sell one of the top martial arts video series in
the world. Their number one selling video is the
submission video. The one thing most purchasers
fail to recognize is that in order to get the
SUBMISSION they’ve just learned they need to
be in the POSITION to enable them to get the
SUBMISSION. One without the other is of no
use!
While the factors are in your control – don’t
allow suspects to be in the position of advantage.
Remember – Action is faster than Re-action –
this is a basic fact of officer survival - so don’t
allow the subject to get within your re-actionary
gap. When you’re approaching or handcuffing a
suspect – when possible - always approach from a
position of advantage.
If you believe there is a possibility of a weapon
and you have the time, always remember cover,
cover, cover. If time/situation does not allow you
the availability of cover ensure you use
angles/concealment to your advantage – make
the suspect visually and physically change his
body position to locate you. Those valuable time
frames used to locate you may be what you need
to visualize his intent and re-act. This may be
the difference between who wins and who loses!
(for some very convincing articles read the Police
Marksman May/June 2002 study by Joe Weeg
and/or Police Marksman November/December
2000 article by Bill Lewinski.)

DETENTION ARBITRARY,
BREATH SAMPLES EXCLUDED

Position v. Submission
At work I sometimes find myself having to
convince people that it is always POSITION

Volume 4 Issue 5
September/October 2004

www.jibc.bc.ca

R. v. Bell, 2004 ABPC 136
Shortly before midnight, two
police officers observed a
known prostitute enter an out
of province vehicle in an area

3

frequented by prostitutes. The vehicle was
stopped and the accused driver subsequently
provided breath samples and was charged with
impaired care and control and over 80mg%.
At trial in Alberta Provincial Court, the accused
argued his s.9 Charter right to be free from
arbitrary detention was violated and that the
police officer’s observations, the signs of
impairment, and the results of the breath tests
should be excluded as evidence under s.24(2).
The Crown submitted, on the other hand, that
stopping the accused was a lawful exercise of
police authority and that the interference was
not serious enough to warrant exclusion of the
evidence in any event.
Justice Brown ruled that the detention in this
case was not a traffic stop. Although the police
may justifiably conduct random stops of
motorists to check sobriety, vehicle registration
and insurance, driver’s licensing, and vehicle
roadworthiness, that is not what happened in
this case. The police detention was not
connected to vehicle-related enquiries—“no
traffic violations or other suspect driving
conduct had been observed by the police”.
Rather, the police wanted to identify the
accused out of concern for the safety of the
prostitute.

Had [the constable] chosen merely to pull in
behind [the accused’s] vehicle and observe, he
might have developed reasonable grounds to
detain him but, at the time of the detention,
[the constable] did not have those grounds.
[paras. 16-18, references omitted]

The evidence was excluded.
Complete case available at www.albertacourts.ab.ca

CHARTER WARNING

NECESSARY IF ROADSIDE
SAMPLE NOT FORTHWITH
R. v. George,
(2004) Docket:C41000 (OntCA)

[The constable] detained [the accused]
because he was in a vehicle with out-ofprovince licence plates, stopped at night in an
area known for prostitution. [The constable]
was not investigating any particular crime; nor
was he looking for any particular suspect. His
general state of alertness to suspicious
occurrences, while a commendable quality in an
on-duty police officer, did not rise even to the
level of a “hunch” and…a hunch does not
constitute reasonable grounds for detention.

After stopping the accused in
the early morning hours and
making a roadside screening
demand, a police officer made a
request for a device to arrive at his location
from a different police division because he did
not have one with him. He was told the device
would take 15-20 minutes to arrive, which he
informed the accused. The device arrived in 16
minutes and a breath sample was taken two
minutes later. At no time during the wait did the
officer advise the accused of his right to a
lawyer. As well, the officer was unaware the
accused had a cellular telephone—the officer did
not ask nor did the accused tell him. The accused
registered a failure. He was arrested, given his
right to counsel, and subsequently provided
samples of 146mg% and 137mg%—well in excess
of the 80mg% legal limit.

[The constable] is trained to complete “checkup slips” to track activity in areas of the city

At trial in the Ontario Court of Justice, the
accused testified on the voire dire that if the

In holding that the police breached the
accused’s s.9 Charter right, Justice Brown
stated:

4

known for prostitution and to pass information
gleaned from this type of checking to the Vice
Unit. There is no legal obligation on individuals
questioned by police officers filling out checkup slips to provide information about
themselves. [The constable] was not entitled
to detain [the accused] in order to complete a
check-up slip…

www.jibc.bc.ca

Volume 4 Issue 5
September/October 2004

officer had provided him with an opportunity to
call a lawyer he would have done so. The charge
was dismissed because the trial judge held the
accused’s Charter right under s.10(b) had been
violated and the evidence of the breath samples
was excluded. An appeal to the Ontario Superior
Court of Justice was dismissed. The Crown
further appealed to the Ontario Court of Appeal.
When a roadside demand is made under s.254(2)
of the Criminal Code the driver is detained and
their Charter rights under s.10 are prima facie
triggered. However, if the demand is made
forthwith, the detainee’s right to counsel can be
suspended as a reasonable limit justified under
s.1 of the Charter, thereby allowing the police to
administer the screening test without advising
the detainee of their s.10(b) rights. As the
Court of Appeal noted, “it is understood that to
be ‘forthwith’, the demand must be that the
detainee provide a sample after ‘a brief period
of detention’, if not ‘immediately’”.
If however, the police are not in a position to
require a sample before there is any realistic
opportunity to speak with a lawyer, the demand
is not valid under the Criminal Code and the
suspension of s.10(b) rights are not permitted.
In other words, if the period of time between
the demand and the time the test could actually
be carried out would provide a reasonable
opportunity to contact counsel, the suspension of
the right to counsel arising from the detention is
no longer justified under s.1 and the detainee
must be advised of their right to speak with a
lawyer.
In this case, Justice Gillese, authoring the
unanimous judgment, ruled that the demand did
not comply with s.254(2) of the Criminal Code. In
her view, “the demand…was not to provide a
breath sample “forthwith” but to provide a
sample when the required apparatus arrived,
which was some time later”. Justice Gillese
stated:
[The constable] was not in a position to require
the [accused] to provide a breath sample

Volume 4 Issue 5
September/October 2004

before there was a realistic opportunity for
the [accused] to consult counsel. There was a
delay of eighteen minutes between the
issuance of the demand and the taking of the
sample. On the record, contact with counsel
could have been accommodated either through
the [accused’s] cellular telephone or, given
that there were no safety concerns associated
with the [accused], by means of the telephone
at the nearby police station [located around
the corner from the stop]… [para. 33]

And further:
In the instant case, the officer was aware
that there would likely be a delay of fifteen to
twenty minutes before the screening device
arrived. In the face of that information, it
was incumbent upon the officer to take
reasonable steps to facilitate the [accused]
detainee’s right to consult counsel. Such steps
would involve asking the detainee whether he
had a cellular telephone. In this case, the
evidence is that the [accused] would have used
his cellular telephone and called his lawyer. I
consider the proximity of the cellular
telephone more fully below. [para. 42]
………
Where an officer is in a position to require
that a breath sample be provided by the
detainee before the detainee has any realistic
opportunity to consult counsel, the detainee
does not have the right to delay the
production of the breath sample in order to
consult counsel by virtue of the ready
availability of a telephone. However, where an
officer is not in a position to require that a
breath sample be provided immediately after a
demand for such a sample, the court, in
determining whether the detainee had a
realistic opportunity to consult counsel during
the period of delay, must consider the ready
availability of a telephone as a relevant factor
in making that determination. [para. 56]

The Court of Appeal concluded that the lower
courts did not err in ruling that the accused’s
right to counsel under s.10(b) of the Charter had
been breached and the appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

www.jibc.bc.ca

5

PASS-ON INFORMATION OK
FOR ARTICULABLE CAUSE
R. v. Wheeler, 2004 NLCA 53
A police officer received
information at about 2am from
an
unidentified
motorist
(during a very brief exchange)
that there was a suspected impaired driver in an
orange or red pick-up in front of a convenience
store. Twenty seconds later the officer
attended the convenience store located about
half a kilometer away and saw the only vehicle,
matching the description, pulling away from the
parking lot. The officer turned to follow the
vehicle, but a second police officer by
coincidence was traveling in the same direction
and fell in behind the suspect vehicle. The first
officer receiving the information about the
suspected impaired driver radioed ahead to the
second officer with the information he had
received. The second officer stopped the
accused and he was subsequently charged with
impaired driving and over 80mg%.
At his trial in the Provincial Court of
Newfoundland and Labrador the accused was
acquitted because he had been arbitrarily
detained contrary to s.9 of the Charter since
the officer did not have articulable cause on
which to justify the stop. In the trial judge’s
view, the officer made no objective observations
of the accused or his vehicle and simply stopping
him on the basis of information provided by
another officer was insufficient. As a result, the
breathalyzer readings were excluded.
The Crown successfully appealed to the
Newfoundland and Labrador Court of Appeal.
Chief Justice Wells ruled that there were, in
the
circumstances,
“a
demonstrable
rationale…sufficiently
reasonable
to
have
justified the detention of the [accused]”.
Furthermore, “information obtained by one
officer and passed on to another can be relied

6

upon to establish articulable cause.” The Chief
Justice wrote:
The first police officer passed the information
by radio to the second police officer and it
was the second police officer that actually
stopped the [accused]. He did so solely on the
basis of the information passed to him by the
first police officer and did not observe any
erratic driving by the [accused].
Neither the fact that the original information
was provided by a person who was not a police
officer nor the fact that the person's identity
was not checked by the first police officer,
would, by itself, diminish, as was argued by the
[accused],
the
right
(perhaps
even
responsibility) of the police officers to stop
the [accused’s] motor vehicle. Considering all
of the circumstances…the explanation of the
police officers must be accepted as articulable
cause for detaining the respondent. [para. 6-7,
references omitted]

The appeal was allowed and the matter was
referred back to Provincial Court for trial.
Complete case available at www.canlii.org

ID SEARCH DURING
INVESTIGATIVE STOP
UNREASONABLE
R. v. Greaves, 2004 BCCA 484
A police officer responded to a
report of an in progress assault,
occurring at a nearby liquor
store, perpetrated by a black
male and several white males who fled the scene
eastbound. The officer arrived at the liquor
store in five minutes, did not see anyone, so
proceeded east. Traveling for only two blocks,
the officer saw the accused, a black male, and
two white males walk out from a park in a northwest direction. Although the black male did not
closely match the suspect description, the
officer considered the grouping of a black male
with two white males unique for that part of the
city.

www.jibc.bc.ca

Volume 4 Issue 5
September/October 2004

Brown, beer-bottle-like, long necked bottles
from which the males were drinking were
discarded by the men when they saw the officer.
The officer maneuvered his car to approach the
men and made eye contact, but they jay walked
in an apparent effort to avoid him. The officer
parked his car, walked after the men, and called
to them to stop. The officer believed, beyond
mere suspicion, the men were involved in the
assault.
The officer told the men he was investigating an
assault and that they matched the general
description of the suspects. He asked the men
for identification in an effort to determine who
they were in the event a photo-lineup was
warranted. His intention was to allow them to go
once their identities were established. Both
white males were identified satisfactorily and
after a computer check were allowed to proceed.
However, the accused produced a piece of
identification without a photo or date of birth in
the name of Bradley Vrekko from a silver
cigarette case held open in his hand. The
accused said he was born in August, then
changed it to January 1973. Computer queries
for Vrekko were negative and the officer was
suspicious that the name was fictitious. The
accused denied ever having a driver’s licence in
Canada or ever owning a vehicle.
The officer then took the cigarette case from
the accused’s hand to further ascertain his
identity. Other pieces of identification, including
a service station credit card and motorcycle
safety certificate, were found in Vrekko’s name,
however none had a photo or date of birth. A
computer query revealed a driver’s licence in
Vrekko’s name—a white male. When asked why he
had a service station card and a motorcycle
safety certificate if he never had a driver’s
licence, the accused turned and took a couple of
steps as if to run away. The officer grabbed him
from behind and handcuffed him. The officer
conducted a cursory search for safety as well as
for evidence. A pocketknife and two prescription

Volume 4 Issue 5
September/October 2004

pills were found, but a pellet gun in the his
waistband was missed.
The accused was given the obstruction warning
for lying about his name. He then provided the
name of Michael Loyd, but again computer
checks were negative. A second obstruction
warning was given and the officer attempted to
verify his identification by calling a phone
number provided by the accused. Noting a
cellular phone in the accused’s shirt pocket, the
officer took the telephone and called the
number provided—but it was out of service. The
officer then scrolled through the numbers on
the telephone and called a listing tilted “Dad”.
Calling this listing, the officer learned that the
telephone had been stolen during a robbery. The
accused was arrested for possession of the
stolen phone and he was given his Charter
warning. He was searched and the pellet gun was
found. Forty minutes had passed since the initial
stop. As a result of the stop, the victims in the
robberies were able to identify the accused in a
photo lineup and fingerprints found at the scene
were subsequently matched to him.
The accused was convicted in the Supreme Court
of British Columbia for various offences relating
to two separate confinement, threatening, and
robbery incidents. The trial judge ruled that
neither the accused’s detention nor the search
of his property breached the Charter. She found
the police had an articulable cause the accused
was involved in the assault and was justified in
detaining him to further the investigation.
Furthermore, the inspection of the contents of
the cigarette case and the address book of the
cellular telephone were reasonably necessary to
establish his identity. Moreover, even if there
were Charter violations, the judge held that the
admission of the evidence would not bring the
administration of justice into disrepute. The
accused appealed to the British Columbia Court
of Appeal arguing his rights under s.9 (arbitrary
detention), s.8 (search and seizure), and s.10(b)
(right to counsel) were violated.

www.jibc.bc.ca

7

Detention
Relying on the recent Supreme Court of Canada
decision in R. v. Mann, 2004 SCC 52, Justice
Lowry,
authoring
the
court’s
unanimous
judgment, concluded that an investigative
detention will not be arbitrary and offend s.9 of
the Charter provided two conditions are
satisfied:
First, the police must have "reasonable
grounds to detain" in the sense that they
reasonably suspect that the individual detained
was involved in a crime under investigation.
There must be both a subjective and objective
basis for that belief. Second, the detention
must be "reasonably necessary" in all the
circumstances, including the nature of the
liberty interfered with and the public purpose
the interference serves. [para. 33]

In this case the accused argued that the officer
lacked an articulable cause because there were
insufficient objectively discernible facts giving
rise to a reasonable suspicion that he was
involved in the liquor store assault. He submitted
factors militating against reasonable grounds to
detain included the fact the men were walking
towards the liquor store (not away from it), they
differed in number from the broadcast
description, and their height, weight, age, and
clothing description differed. In rejecting this
argument, Justice Lowry wrote:
In my view, the [accused] has established no
sound basis for interfering with the trial
judge's conclusion that [the officer] had
reasonable grounds to detain for the initial
investigative detention. The precise and
detailed facts which the appellant suggests
the police must possess in order to form
reasonable grounds to detain would elevate
that standard much closer to the higher
standard of reasonable grounds to arrest. It
is clear that the standard of reasonable
grounds to detain is less demanding than that
of reasonable grounds to arrest….Articulable
cause has been said to exist, even where the
person detained does not match the
description of a suspect with the type of

8

precision the [accused] here suggests is
required, but the circumstances as a whole still
give rise to a reasonable suspicion…
The primary purpose of the requirement that
police have reasonable grounds to detain is to
ensure that they do not have carte blanche to
interfere with individual liberty and do not
detain persons based on mere "hunches". It
prevents the discriminatory or capricious
exercise of police power…It is clear that [the
officer] was acting on more than an intuitive
hunch. His suspicion that the persons detained
may have been involved in the assault was
supported by objective facts and was
reasonable in the circumstances. Although
there may not be objective data to support his
belief that the combination of one black and
two white males was "unique" in this area, the
testimony of [two officers] was consistent
with the fact that this was the only group of
males –- whether black, white, or some
combination of the two –- observed in the area
at the time. After hearing the testimony of
[the officers], the trial judge was satisfied
that his conduct was not racially motivated.
[paras. 41-42, references omitted]

Although the initial detention was justified, the
court also examined whether the prolonged
detention—some forty minutes—ceased to be
reasonable and became arbitrary. The court
noted that there was no legal obligation for the
accused to identify himself. However, rather
than simply refusing to provide his name, he
chose to give two false identities. Recognizing
the distinction between the absence of a legal
obligation to respond to police questions and the
existence of a legal obligation to refrain from
providing false information, the further
reasonable suspicion that the officer was being
obstructed provided justification for a more
protracted and intrusive detention, including
continued questioning and physical restraint. As
Justice Lowry noted, “It was reasonably
necessary in the circumstances, both with
respect to the assault and a possible
obstruction charge, to prolong the questioning

www.jibc.bc.ca

Volume 4 Issue 5
September/October 2004

of the [accused] for a further 30 minutes in an
attempt to discover his true identity”.

Search
In light of the Mann ruling, the power to search
incidental to
investigative
detention
is
restricted to searches that are reasonably
necessary to permit the detention to be safely
conducted. Thus, searches are limited to officer
safety, generally through a pat-down frisk and
do not include searches to determine identity.
The initial pat-down search was largely
consistent with a safety search, even though
the officer testified in part he was searching
for further evidence and removed two pills from
his pocket. Despite this reservation, the search
was reasonably necessary since the officer
reasonably suspected the accused was involved
in a violent assault.
However, the court concluded that the
inspection of the cigarette case containing the
identification and the telephone address book
were unreasonable and breached s.8 of the
Charter. Neither searches were reasonably
necessary to ensure officer safety and
therefore fell outside the police power to
search incidental to investigative detention.

Right to Counsel
Although the court was reluctant to pinpoint the
precise time the detention in this case
triggered s.10(b) rights and that some delay in
informing a briefly detained person of their
s.10(b) rights may be justified, it did rule that
there was little doubt a detention occurred
under s.10(b) at the time the officer
handcuffed the accused, which subjected him to
significant physical restraint. In failing to
advise him of his right to counsel at this point,
the officer violated his s.10(b) Charter rights.

Admissibility of Evidence
Assuming that the identification evidence was
obtained in a manner that violated the accused’s

Volume 4 Issue 5
September/October 2004

rights, the evidence was nonetheless admissible
under s.24(2) of the Charter despite the s.8 and
s.10(b) violations. The evidence did not affect
the fairness of the trial. The s.8 breaches,
although serious, were mitigated somewhat by
the presence of reasonable grounds to arrest
for obstruction. The s.10(b) violation was minor
and the officer did not act in bad faith.
Moreover, the offences charged were serious
and the evidence obtained essential to a
conviction. As a result, the admission of the
evidence would not impair the reputation of the
administration of justice. The appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

TWO NEW SUPREME COURT
JUDGES APPOINTED
The Supreme Court of
Canada recently saw the
appointment of two new
justices. Madam Justice
Rosalie Abella, from the
Ontario Court of Appeal,
and Madam Justice Louise Charron, also from
the Ontario Court of Appeal, became the newest
judges added to the nine member court. They
join Chief Justice Beverley McLachlin (B.C.), Mr.
Justice John Major (Alta.), Mr. Justice Michel
Bastarache (N.B.), Mr. Justice William Binnie
(Que.), Mr. Justice Louis Lebel (Que.), Madam
Justice Marie Deschamps (Que.), and Mr.
Justice Morris Fish (Que.).
Did you know that you do not have to be a lower
court judge to be a member of the Supreme
Court of Canada? Section 5 of the Supreme
Court Act allows the appointment of a
“barrister or advocate of at least ten years
standing at the bar of a province”. Furthermore,
at least three judges have to be from Quebec
and judges may stay with the court until they
are 75 years old.

www.jibc.bc.ca

9

VEHICLE SEARCH INCIDENT
TO DETENTION
UNREASONABLE
R. v. Fuller, 2004 BCPC 326
After stopping the accused for
a vehicle equipment violation, a
police officer noted a large
cardboard box on the back
seat. The officer also observed
he appeared nervous, shaking as he handed over
his driver’s licence. When asked about the
contents of the box, the accused stated it
contained a television. At this point, the officer
noted a strong smell of fresh marihuana. A
probationary constable, accompanying the
officer, noted the smell was moderate.
The officer ordered the accused from the
vehicle and told him he was being detained—not
arrested—for investigation under the Controlled
Drugs and Substances Act. The officer also
stated that the accused would be charged “if”
any amount supporting a charge was found. The
vehicle was searched and the taped cardboard
box opened. In the box, police found 19 ziplock
bags of marihuana containing ½ kg. each. The
accused was then handcuffed and read his s.10
warning and caution from a card. The accused,
and his wife—the registered owner of the
vehicle—were charged with unlawful production
of marihuana and possession for the purpose of
trafficking.
At their trial in British Columbia Provincial
Court, they argued, among other grounds, that
their Charter rights under s.8 (search and
seizure) had been violated. The Crown, on the
other hand, submitted that initial detention was
based on articulable cause and the search was
incident to arrest.

The Search
A search conduced without a warrant is prima
facie unreasonable unless the Crown can rebut
the
presumption.
Warrantless
searches

10

incidental to arrest under the common law will
rebut the presumption provided the arrest is
lawful. However, searches incident to arrest (for
safety and contraband) are different in scope
than searches incident to detention (safety
only).
In concluding that the search of the vehicle was
done solely for the purpose of finding
contraband and could not be justified as incident
to detention, Justice Chen stated:
Without any basis for a belief that [the
accused] was armed and dangerous, [the
police] did not have a right to search [the
accused]. Once [the accused] was detained and
handcuffed in the back of the police vehicle,
there was no threat to officer safety and no
basis for searching either [the accused] or the
vehicle. In fact, [the accused] was not
searched at all until after [the officer] had
removed the cardboard box from the back of
[the accused’s] vehicle and opened it to find
the marihuana In my view, officers with a
genuine concern for their safety would have
conducted the search of [the accused] prior to
any search of the vehicle. [para. 25]

If the officer had reasonable and probable
grounds, the search could be justified as an
incident to arrest. However, in this case the
court found that the officer did not have the
grounds required to support an arrest. Drawing
on what the officer said and did, Justice Chen
ruled that the observations made by the officer
were sufficient grounds for only suspicion—not
belief. Using the word “if”—relating to the
possible discovery of evidence—was somewhat
ambiguous about whether the officer believed
there was marihuana in the vehicle. Furthermore,
the officer “detained” the accused for
investigation, which was consistent with a
suspicion there were drugs in the vehicle. As a
result, the search was unreasonable and the
evidence excluded under s.24(2) of the Charter.
Complete case available at www.provincialcourt.bc.ca

www.jibc.bc.ca

Volume 4 Issue 5
September/October 2004

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
The “In Service: 10-8”
newsletter would like to
share some of our readers’
comments
about
the
publication.
************

“Your newsletter continues to be an essential
read for officers who want to keep abreast of
current legal issues.” Police Constable, British

Columbia

************

“I find reading the newsletter to provide a
valuable resource to learning the legal issues in
policing.” Police Constable, British Columbia
************

“I find what you put together extremely helpful
and educational.” Police Constable, RCMP Major
Crime Section British Columbia
************

“Your publication is the most useful one I read
by far and I am forwarding it to my members.”
Police Sergeant, RCMP British Columbia

NO NEED TO CHARTER BEFORE
ROADSIDE SUSPICION
FORMED
R. v. Halliwell, 2004 BCPC 359
At about 10:45 pm on New
Year’s Eve a police officer saw
three persons exit a vehicle
that arrived at a parking lot and
enter a bar. Half an hour later,
the officer saw the vehicle back up and then
drive forward, stopping very close to the bar
doors. The officer decided to check on the
driver and found the accused in the driver’s
seat. The officer asked where the occupants had
come from and how much they had to drink. The
accused was also asked for her driver’s licence
and registration. During this time, the officer
noted a smell of alcohol from inside the vehicle,

Volume 4 Issue 5
September/October 2004

a faint smell of alcohol on the accused’s breath,
and her watery eyes. The accused also said she
had a drink back at her residence more than an
hour before.
Based on these observations, and his belief the
vehicle occupants had likely been inside the bar
for 30 minutes, the officer formed a reasonable
suspicion the accused had alcohol in her body.
The officer read the roadside screening device
demand and the accused was charged with failing
to provide a sample. At her trial in British
Columbia Provincial Court, the accused argued
that the officer’s suspicion was not reasonable
because he relied, in part, on her statement that
she had been drinking without advising her of
her Charter rights under s.10(b).
Justice Gordon rejected this argument. In his
view, “when the police stop a motorist for the
purpose of ensuring compliance with the Motor
Vehicle Act, or the driving sections of the
Criminal Code, they have the right, as part of a
‘preliminary investigation,’ to ask questions of
the driver that are relevant to that investigation
and without advising the citizen of his or her
Section 10 rights.” However, the statements of
the driver are only limited for the purpose of
determining whether the officer had the
requisite belief—in this case a reasonable
suspicion—on which to base the roadside
screening device demand.
Even without the drivers statement, Justice
Gordon would have nonetheless concluded the
officer had a reasonable suspicion the accused
had alcohol in her body. She was operating a
vehicle in close proximity to a drinking
establishment at 11:15pm on New Year’s Eve and
had a faint smell of alcohol on her breath.
Although not enough to satisfy reasonable
grounds for a breathalyser demand, the factors
were sufficient to constitute a reasonable
suspicion for a roadside screening device
demand.
Complete case available at www.provincialcourt.bc.ca

www.jibc.bc.ca

11

CHARTER WARNING

SUSPENDED DURING IMPAIRED
INVESTIGATION

FRASER VALLEY LAW
ENFORCEMENT CONFERENCE
March 12-15, 2005

R. v. Pineau, 2004 BCPC 183
A police officer stopped the
accused driving and noted
symptoms of impairment. In
response to being asked if he
had anything to drink, the
accused said he had “five”. This admission,
together with other factors, contributed to the
officer’s opinion that there were reasonable
grounds to demand a breath sample.
At trial in British Columbia Provincial Court, the
accused submitted that once the officer decided
to investigate for impaired driving, his rights
under s.10 of the Charter arose. Absent this
proper warning, he argued the certificate of
analysis should be inadmissible. The Crown, on
the other hand, contended that once the
accused admitted to drinking, the officer’s
reasonable grounds crystallized and it was at
that point the obligation to provide Charter
rights arose.
Justice Skilnick agreed with the Crown. In his
view, even though the accused was detained
when stopped by police, the officer asked the
question during the ‘investigatory stage’ and was
entitled to briefly suspend—as a reasonable limit
under s.1 of the Charter—the accused’s s.10(b)
rights until the reasonable grounds to make the
demand under the Criminal Code were formed.
This brief suspension of s.10(b) rights also
includes preliminary investigation using an
approved screening device or a field sobriety
test. However, the evidence “can only be used in
assessing whether or not the police officer had
the requisite grounds for making a breath
demand. It cannot be used for determining the
guilt or innocence on the impaired driving
charge.”
The certificate of analysis was
admissible.

“Mass Murder in the Home,
the School and the Workplace:
Spree Killers and Annihilators”

Location:
Ramada Inn & Conference Centre
Abbotsford, BC

Registration:
$299 early bird
(before December 1, 2004)
$329 regular
(after December 1, 2004)
Registration fee includes tickets to the
opening ceremonies and receptions,
on-site continental breakfasts, and
tickets for the conference banquet.

Topics:
Dunblane School Massacre,
Scotland, 1996
Gakhal Family Murders, Vernon,
British Columbia, 1996
Ottawa Transpo Massacre,
Ottawa, Ontario, 2001
Kamloops Murders, British
Columbia, 2002
Port Arthur Massacre, Tasmania, 1996
Columbine High School Massacre, 1999
Expert presenters include Lt. Col. Dave Grossman,
U.S. Army (Retired), Director, Killology Research
Group, who is one of the world's foremost experts in
the field of human aggression, the roots of violence
and violent crime.

Visit www.fvlec.org for more info!

Complete case available at www.provincialcourt.bc.ca

12

www.jibc.bc.ca

Volume 4 Issue 5
September/October 2004