WllUll OfJ WNTl!lllT
VOlUMI NO® 10

Justice Institute of British Columbia

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V&A 4J5

ISSUES OF INTEREST
VOLUME NO. 30
Written by John K. Post

January 1988

TABLE OF CONTENTS

Page

CONSTITUTIONAL VALIDITY OF OUR CONSTRUCTIVE MURDER PROVISIONS
VAILLANCOURT and The Queen and The Attorney General for Ontario
Supreme Court of Canada - December 1987
CA 007055, November 18, 1987
LAVIOI.E.I'TE v • The Queen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
JURY DELIBERATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1
6

8

The Queen v. ZACHARIAS - B.G . Court of Appeal Victoria V000096 - Novemb er 26, 1987

THE OFFENCE OF THREATENING
Regina v. SAIJLNIER - The County Court of Cariboo Prince George 10524, July 1987
Regina v. UNDERWOOD - The County Court of Vancouver Island
(Victoria 42921), December 1987
CONSTITUTIONALITY OF PRIVACY ACT ALIDWING UNIIATERAL CONSENT TO
INTERCEPT A PRIVATE COMMUNICATION .......•................... . .......
Regina v. WIGGENS - Supreme Court of B.C. - Vancouver, B.C.

10

15

No. CC851985 - May 1987

NO GREATER FAVOUR CAN BE AFFORDED A SUSPECT THAN TO VIOIATE HIS RIGHTS OR FREEDOMS . . . . . . . . . . . . . . . . . . . . . . . . . • . . . • . • • . . . . . . . . . . . . . . . . .
Regina v. OLSON - B. C. Court of Appeal

17

CA 007379 - October 1987

ROAD CHECKS - RANDOM STOPPING OF CARS FOR INSPECTION OF DOCUMENTS ARBITRARY DETENTION • • • • • • • . . • • • • . • • . . . . . • • . • . . • . . . . . . • . . . • • • • • . • . . . •

Regina v. LADOUCEUR - 3 C.C.C. (3D)
240 Ontario Court of Appeal

19

- ii -

ADKISSIBLITY OF STATEMENT - WAIVER OF RIGHT TO COUNSEL
Regina v. Johnscon - County Court of Westminster
New Westminster X017902 - August 1987
IS A SUBJECTIVELY DEGRADING AND UNNECESSARY STRIP SEAR.CH UN REASONABLE? • . . . . . . . . . . . . . . • . • . . . . . . . . . • • . . . . . • . . . . . . . . . . . . . . . . . . . .
Regina v. LALIN - County Court of Vancouver
No. C. C. 870602, September 28 1987

23

25

UNION CERTIFICATION - THREATS AND 'IJEAPONS
Regina v. H~LETT - B.C. Court of Appeal
Vancouver CA 007446 - December 1987

27

ARREST AND SEAR.CH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. Beck - County Court of Cariboo
Fort St. John 3738, September 1987

29

REASONABLE SEARCH - ADMISSIBLITY OF EVIDENCE... . .. .. . ... ..........
Regina v. KOKESCH - County Court of Vancouver Island Nanaimo CR 3585, November 1987

31

SEARCH OF PERSON AND CAR FOR NARCOTICS ......... ..... . . ... ... ... .. .
Regina v. SKINNER - County Court of Vancouver
No. C.C. 871252, December 1987

32

RIGHT TO COUNSEL - BURDEN TO PROVE INFRINGEMENT ON ACCUSED
Regina v. LEITCH - County Court of Vancouver
No. C.C. 861864, April 1987

34

REASONABLE BODY SEAR.CH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

Regina v. WIEDEHAYER - The County Court of Yale
Kelowna 87/16, October 1987
THEFT BY FAISE PRETENCES OR FRAUD................................
Regina v. CORHAK - County Court of Vancouver Island Victoria 44963, September 1987

36

UNNECESSARY ARREST - ADMISSIBILITY OF CERTIFICATE OF ANALYSES
Regina v. HEYERS - B.C. Court of Appeal
Vancouver CA 008399, February 1988

37

- iii -

CRIMINAL NEGLIGENCE - VICIOUS DOG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. HOUGH - County Court of Vancouver - C.C. 850039

39

STATEMENT - VOUJNTARINESS - CREDIBILITY.. . ................... . ...
Regina v. THORNIIT and PIERRE County Court of Vancouver - No. 870956, November 1987

40

REASONABLENESS OF SEARCH............ . ........... . ................
Regina v. CHa/ANIEL - County Court of Westminster X018247
October, 1987

42

VALIDITY OF SEARCH WARRANTS - UNR.F.ASONABLE SF.ARCH .. .. . .. . ... .... .
Regina v. WATT and HICKS - County Court of Vancouver
No. C.C. 870523 - November 1987

43

REFUSING TO GIVE BLOOD SA¥..PLE · WHAT NEEDS TO BE PROVED? .. ..... ..
Regina v. HARTIN - County Court of Vancouver
No. C. C. 870101 - October 1987

45

THEFT BY FINDING OR BY CONVERSION . . ... .... ... . .. . .. .... ... .... . . .
Regina v. HUNTINGFORD - County Court of Vancouver
No. C.C. 861811, February 1988

46

SIMILAR FACT EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. SCHWAB - Supreme Court of B.C .
Vernon 17239, November 1987

47

SEARCH WARRANTS - REASONABLE SEARCH................ . ..... . .... . ..
Regina v. COLORAN and BATE - County Court of Vancouver
Powell River 05553 F, October 1987

48

MISREPRESENTATION TO GAIN ACCESS TO A HOME FOR THE PURPOSE OF
GATHERING EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. HANDSOR - County Court of 'Westminster New Westminster No. X017911 - June 1987
JUSTIFICATION FOR REFUSING A FIREARM ACQUISITION CERTIFICATE
HICKLE and THE QUEEN - Supreme Court of B.C .
Vancouver C.C. 8700972 - November 1987

49

50

- iv YAS THE ASSAULT A SEXUAL ASSAULT...... . ......... . ..... . ..... . . ...
Regina v. EDWARDS - The County Court of Vancouver
No. C.C. 861751

53

LEGAL TID-BITS
QUESTIONING OF YOUNG OFFENDER CONTRARY TO Y.O.A.
CONSTITUTIONAL BREACH? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54

DOES 24 HOURS D.L. SUSPENSION BAR PURSUIT OF DRINKINGDRIVING OFFENCES'! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54

PRIVACY lJHILE CONSULTING COUNSEL.................... . ..... .

55

DOES ACQUITTAL OF SPEEDING PREVENT ADMISSIBILITY OF SPEEDING
EVIDENCE IN 'OVER .08 TRIAL' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

55

CONSTITUTIONAL VALIDITY OF OUR CONSTRUCTIVE MURDER PROVISIONS
VAILLANCOURI and The Queen and The At:t:orney General for Ont:ario Supreme Court of Canada - December 1987

The accused agreed to be a party to an armed robbery in a pool hall.
The
weapons to be used were knives.
However, his partner showed up with a gun.
The accused testified he had insisted that it be unloaded and he be given the
ammunition.
The partner removed three bullets from the gun and gave them to
the accused.
He must have left ammunition in the gun as during the robbery
the principal partner shot and killed someone.
He made a clean get-a~way but
the accused was apprehended. Three bullets were found on him.
The relevant law can be found in section 213 C.C .
that section reads as follows:

The applicabl e . portion of

"Culpable homicide is murder where a person
causes
the
death of a human being while
committing robbery if he uses a weapon or has it
upon his person during or at the time he commits
the offence and death ensues as a consequence."

There was no doubt that the accused was in on the robbery, but wa s he a party
to the murder? His intent was unrelated to the murder the principal offender
committed.
Yet the accused was convicted of second degree murder as s. 21(2)
C. C. rendered him criminally liable.
He and the principal offender in
relation to the murder, had formed an intention in common to commit an armed
robbery and to assist each other in carrying out that common purpose.
The
principal offender committed murder in addition to the unlawful purpose (armed
robbery) they intended to commit together. As the accused ought to have known
the murder would be a probable consequence to an armed robbery he was not only
a party to the armed robbery but also to the murder his partner committed. He
was consequently convicted of second degree murder and continued to appeal
until he ended up in the Supreme Court of Canada.
The accused took a broad shot at the constitutionality of all the sections
mentioned.
It seems fair to say that he argued that the law reached too far
to include him in something that was not part of what he intended.
It is a principle of fundamental justice that the lawmakers cannot render us
criminally liable for causing a particular result unless we at least had some
degree of intent in respect of that result.
Particularly murder, which has
"specific intent" as an essential ingredient to be proven by the Crown, should
not be subject to the shortcuts the Crown had in its armour for this case.
Specific intent means that the results o f an action were specifically
intended.
In this case, it can, at best, b e said that there was a general
intent to the unlawful act of robbery, but no intent at all in respect of the
murder.

• 2 •

Furthermore , the "reach" by section 213 (d) and/or 21(2) C. C. violated the
accused's right to be presumed innocent until proven guilty. This presumption
consists of two familiar principles:
(a)

the right to remain silent, and

(b)

the burden of proof b eing on the Crown to prove beyond a reasonable
doubt that which it alleges.

In this case, the Crown needed only to prove the murder, the common intent to
the robbery and the knowledge that the partner carried a weapon. Hence, the
legislative reach that dragged the accused into this murder as a principal
offender in the second deg1ee, is an evidentiary shortcut and amounts to overreach from a constitutional viewpoint.
Consequently,
the statutory
provisions are inconsistent with the Charter of Rights and Freedoms and are as
such without force or effect, argued the defence.
Parliament reiterated that murder is an offence requiring specific intent when
it enacted s. 212 C.C . wh ich states that murder is where a person who causes
the death of a human being means to cause that death. However, right in th e
wake of this opening statement Parliament relaxes the apparent rigidity by
providing that where one intends and does cause bodily harm to another
person, which he knows is likely to cause death and is indifferent whether his
victim dies, then if death does result from the wounding, the perpetrator
committed murder (s. 212 (a) (ii) C.C . ). In other words, the Crown does not
have to prove i!D.Y (specific or general) intent to cause death, but only intent
to wound.
Then Parliament removes its elf even further from its statement t hat murder
requires specific intent to cause death by enacting s. 212(c) C.C. It simply
states that a person who , in the pursuit of an unlawful goal, does anything
that he knew or should have known is likely to cause death, then even where he
wanted to attain that goal without causing death, or any bodily harm to
anyone, he conunits murder, if death is caused by that pursuit.
The intent in such circumstances does not even include indifference if death
results. All that needs to be proved is that the pursuit caused the death and
proof of no-intent to cause death is unable to defeat. this murder provision .
Then, of course, there is the relaxation of specific intent being prerequisite
to conviction for murder, by means of the section (213 C.C.) that reached out
and brought the accused within criminal liability for murder despite the fact
he did not intend and personally did nothing to cause death to anyone despite
the fact he intended to commit robbery with a partner who was armed with what
he thought to be an unloaded firearm.
This, the accused claimed, is legislative excessiveness that is inconsistent
with his right to be presumed innocent. The Crown needed not even to prove,
for this most serious crime we can commit, subjective foresight or even
objective foreseeability of the likelihood of death.
This foresight or
foreseeability has been substituted by Parliament by the above explained

- 3 -

provisions which amount to statutorily constructed murder
murder) which ignores the principles of fundamental justice.

(constructive

The Supreme Court of Canada began its deliberations by recognizing how
Parliament has limited its supremacy by including the Charter of Rights and
Freedoms in our new entrenched constitution.
They, the appointed Judiciary,
can by interpreting the constitution supersede the elected representatives
whose resolves are assumed to be the will of the people.
If before 1982,
Parliament disagreed with the Judiciary' s interpretation of statute law,
(Parliament) could supf'Y"~f'"."l"' th.~m by amending the enactment.
Now, if a
constitutional issue renders an enactment without force or effect, one way
which Parliament can supersede the Courts is by amending the constitution.
Considering it took Canada 55 years (from the Imperial Conference of 1927 till
the proclamation of our constitution on April 17 of 1982) to come up with an
amending formula for our constitution ,' any amendment to that constitution of
ours will be a major undertaking.
This is what the reasons for judgement record :
"Prior
to
the
enactment
of
the
Charter ,
Parliament had full legislative powers with
respect
to
criminal
law,
including
the
determination of the essential elements of any
given crime.
But, the Charter has restricted
these powers.
Under s. 7, if a conviction will
re·sult in a deprivation of the life, liberty or
security of the person of the accused, then
Parliament must
respect
the
principles
of
fundamenta l justice."
Murde r is the worst kind of homicide.
"Malice aforethought" distinguished it
from manslaughter.
The Supreme Court of Canada hastened to add that malice
aforethought did not limit murder to premeditated causation of death. Malice
included intentional killing (not necessarily premeditated) and implies
recklessness (not to be confused with negligence) which means doing something
deliberately, knowing, but being indifferent to the likely consequences of the
act.
Parliament in providing that causing death during the course of the commission
of an indictable offence is included in murder, is not unique. It has been an
historical practice. One seventeenth century author explains that "If the Act
is unlawful, it is murder."
If the glance of an arrow aimed at an animal
belonging to another for the purpose of stealing it, kills a person who was
out of the archer's sight, then the homicide is murder.
If the animal was
wildlife he was entitled to hunt, the killing of the person is sheer
misadventure.
A century later this was only applied if the unlawful purpose
amounted to a serious criminal offence (felony).

- 4 -

Our section 213 C. C. is a direct descendant from that ancient common law
except that it restricts the offenses during the commission of which the
causation of death amounts to murder to the most serious indictable offenses
only. As explained above, the provision is known as "constructive murder".
England, the nation where the constructive murder provision originates, did
away with it in 1957. In the U.S. it is widespread but losing support .
Others have downgraded the cause of death while committing a crime to
manslaughter and some have included a form of intent to cause the death as an
element to the provision.
The Supreme Court of Canada decided to strictly deal with the
constitutionality of section (213(d) C.C.) and not with the broad attack on
every section that releases the rule of specific intent to cause death .
Neither would the Court deal with section (21(2) C.C.) and its alleged
inconsistency with the Charter . This, especially as the Attorney General of
Canada did not intervene in this appeal. However, this decision will
undoubtedly affect those provisions.
In this case, the accused was held criminally liable for the unintended
results of an intended criminal act. The majo r question is whether that is
inconsistent with the principles of fundamental justice.
After all, s. 213
C. C. does not call for any subjective foresight or objective foreseeability on
the part of a person in a situation the accused found himself in . The court
concluded that murder belongs to a category of crimes where, due to the very
nature of it (as well as the stigma attached to a conviction and the severe
penalty that must be imposed) conviction is unthinkable unless there is a
criminal intent reflecting the particular nature of that crime". The Court
used theft as an example of also belonging to this category . Although it does
not compare in terms of the gravity of the offence , it does in regard to
requisite intent. If there was no requirement to show that the taking of
someone else's property at least involved dishonesty then all of us would be
unreasonably vulnerable to conviction. After all, if we were criminally
liable for all the unintentional consequences of our acts, we could not afford
to get out of bed in the morning. The Court, therefore, decided that if
Parliament wants to relax the requirement of specific intent to cause death
for the crime of murder committed during the commission of an intended
criminal act there must, at least, be proof beyond a reasonable doubt of
subjective foresight, meaning that the accused foresaw the results of this
robbery and nonetheless went ahead . A lower threshold for the Crown would be
a requirement to prove objective foreseeability, meaning that in circumstances
where anyone could foresee the possibility of such results still proceeds with
the intended crime.
Concluded the Court:
I
11

"l will therefore, for the sole purpose of this
appeal, go no further than say that it is a
principle of fundamental justice that, absent
proof beyond a reasonable doubt of at least
objective foreseeability, there surely cannot be
a murder conviction."

- 5 -

This means that to convict under s. 213(d) the Crown must not only prove all
the essential elements included in the section, but also those s. 7 of the
Charter imposes, in this case objective foreseeability.
By enacting section 213(d) C.C. Parliament substituted for the minimum
requirement of intent to cause death (objective foreseeability) proof beyond a
reasonable doubt of "certain forms of intentional dangerous conduct causing
death".
In other words, the section is unconstitutional as it does not
include as an essential element that one ought to know that death is likely to
ensue for a conviction for murder to be possible.
The current wording allows
a conviction for murder despite the fact that a jury may have a reasonable
doubt that the accused OUi,lit to have known that death was likely to ensue.
Recognizing that the accused was brought into the murder offence through the
operation of s. 21(2) C.C. which does include objective foreseeability
(" .. ,each of them who knew or ought to have known that the commission of the
offence would be a probable consequence ... "), s. 213 C. C. must nevertheless
have a similar provision.
It also means that the partner in a crime to be
convicted must have a measure of intent to cause death while the principal can
be convicted without having to prove any intent.
Neither is the measure of
deterring the use of weapons as applied in s. 213(d) C.C. "demonstrably
justified in a free and democratic society" (see s.l Charter).
If Parliament
wants to deter such behaviour it can provide for it under the offence of
manslaughter or the Crown can use s. 83 C.C. to prosecute.
These sections
carry sufficient maximum sentences to punish for and deter such behaviour .
The Supreme Court of Canada concluded:

1.

-Section 213 (d) C. C. violates the principles of fundamental justice and
the presumption of innocence (s. 7 and ll(d) of the Charter).

2.

Section 213(d) C.C . is consequently of no force or effect .

3.

The constitutional question of s. 21(2) in combination with s. 213 (d)
C.C. was not answered although there was an implication that the former
does not offend the Charter.

4.

The conviction for murder must be set aside and a new trial was ordered .

Comment:
A new trial seems difficult in the circumstances.
The very section under
which the accused stands charged was declared without force or effect.
This
would leave one to presume that constructive murder as it existed under s.
213(d) C.C. is no longer an offence known to law.
It seems doubtful that the
Crown, by virtue of the order for a new trial, may prosecute the accused for
another offence that may be applicable.
\Jhat may be of interest also, is that this decision was not unanimous.
One
justice implied that the Court has gone too far, as the narrow question they
were entitled to address was the law as it applied to the accused.
He (the

- 6 -

accused) was captured by s . 21(2) C.C. which includes objective foreseeability
and he, therefore, had not been deprived of his right to the principles of
fundamental justice. He further observed that the Court agreed that the crime
deserved severe punishment and, in essence, said that the argument was not
about the content, but rather, the wrapping of the package;
it was one
involving the label rather than the substance.
He concluded that the
judiciary should not have interfered in the Parliamentary decision reflected
in s. 213(d) C.C.
The Supreme Court of Canada reiterated its views on statutory provisions that
either excuse the Crown from proving essential elements of an offence; allow
a fact to be presumed upon the proof of other facts, or requires an accused to
disprove on the balance of probabilities an essential element of the offence.
In all of these, the accused must create more than a reasonable doubt to rebut
what may be presumed.
These provisions clearly violate the presumption of
innocence and the principle of fundamental justice that any reasonable doubt
must b e resolved in favour of the accused.
What is also of interest is that the Court held :
"Section 7 and ll(d) will also be infringed
where the statutory definition of the offence
does not include an element which is required
under s. 7."
In this case, that was an intent of at least objective foreseeability .
Principles of law have always been applied to interpret the statutes. If our
constitution requires that there must be an intent related to causing death in
s. 213 C.C., why could the Court not simply have left the section operable and
set the precedent that intent is, by principle of law, an essential element.
Many enactments are interpreted differently since the Charter came into
effect.

LAVIOLEJTE v. The Queen - Supreme Court of Canada
The accused and two companions broke into a parish house to find things to
steal . He had handed, upon the request of one of his companions, a steel pipe
to him when they entered the house.
When the parish priest awakened by the
noise, ca.me out of his room the chap with the pipe "beat him to death". This
fellow plead guilty to second degree murder while the accused and the other
perpetrator were also convicted of that crime upon a joint trial.
The Prince Edward Island Supreme Court ordered new and separate trials for the
duo and the Crown appealed this decision to the Supreme Court of Canada. The
issues in this appeal were identical to those in the Vaillancourt case.
Needless to say, the Crown was not successful and new trials were ordered.

- 7 -

Comment:
I have kept track of and been preoccupied with the principles, and doctrines
of our criminal law.
Despite this obsessive immersion having made me
understand the need for the safeguards and principles contained in these
legal philosophies and theories, I have never become accustomed to the
apparent callousness of our Courts.
The kernel of the horrendous criminal act involved here gets no more than
"Stephen beat · him to death with the pipe" in among pages and pages of
reasoning and examining how the system victimizes those the court found to be
responsible for the crime.
I do perfectly understand how I may arouse the
wrath of those who will correctly point out that heinousness of the crime
should not make the person(s) accused of committing it any more vulnerable to
conviction than those who conunit a crime of lesser gravity; that dramatization
by the court may make one doubt the requisite impartiality and absence of bias
on the part of those sitting in judgment; etc.
I full well realize that the public will not likely read reasons for
judgement.
If they did, a different tone may well be necessary to maintain a
level of acceptable reputation with reasonabl e lay persons.
To preserve this reputation we have gone as far as expanding the meaning of
the blindfold on the goddess of justice to not only depict impartiality, but
also deliberate blindness to facts.
Surely, if we can go to that extent in
terms of the application of law, we can make a bit more of an effort in the
cosmetic end of things and show some sensitivity for those who experienced
the agonies of crime . A petty point perhaps, but ... .

******

- 8 -

JURY DELIBERATIONS
The Queen v. ZACHARIAS - B. C. Court of Appeal Victoria V000096 - Novemb er 26, 1987
We continue to enforce the tenor of law that "thou shall have faith in being
tried by thy peers".
This mode of trial initiated in our system in 1215 by
means of the Magna Carta continues to be the holiest of holy in the
administration of justice. Questioning its validity in contemporary society
is still the equivalent of speaking out against motherhood in the hallways of
the maternity ward. Our laws, which strictly prohibit any revelations of what
went on in the jury rooms, appear like evidence of willful blindness that
verdicts may be reached by duress, the strong minded intimidating their
lessers, or in ignorance of the law despite what must appear to them
ramblings and renditions of law known as judicial instructions to the jury.
The laws even prevent research to explore the validity of the system.
For
instance, tests of jury members on how well they understood the judicial
instructions may be revealing, particularly when the instructions have, in
terms of time, gone well beyond the average human attention span. Tests done
on students exposed to a hypothetical address to a jury, or those who were
specifically (in the U.S.) asked to sit through an entire trial and were
subjected immediately upon the address to · the jury to oral and written tests
on their understanding of the instructions given to the jury, are claimed to
have attained marks not exceeding 35%.
This is not embarrassing to the
reasonable and intelligent citizens who make up our juries . Most competent
judges are sometimes told by more superior courts that they have erred in
law.
Considering the current complexities of that law which the jury must
apply to find fa~ts and determine a verdict, it is no affront to say to our
peers that thei)' are no longer competent or qualified to render a verdict.
Whenever the system permits a peek behind the screens surrounding juries there
is evidence of unawareness of the law.
\Jhen we "fly" without a jury the
system crosses all T's, and dots all I's meticulously to ensure flight. When
we "fly" with a jury we are equally as meticulous except we do not carry out
the inspections to ensure airworthiness.
In this case, Mr. ZACHARIAS was tried before a jury, with defrauding his
employer, a Credit Union.
After conviction defence counsel had a visit from
the jury's foreman.
Information from credit union personnel, (conveyed other
than by means of testimony), who had worked under the accused's supervision,
had left the impression with the jury that the accused had been convicted of
similar fraud elsewhere and that he was a hard and mean man to work for. In
general, the message was that he was a person likely to commit the offence for
which he was being tried.
Defence counsel went with this allegation of
obstructing, perverting or defeating justice (s. 127(2)C.C.) to the Crown.
This resulted in the R.C.M.P. and a senior lawyer conducting an investigation.
Jury members were interviewed and questioned by the lawyer. Under s. 576.2
C.C. they were excused for disclosing "information relating to the proceedings
of the jury". The answers given by the jurors did not support the suggestion
that someone had influenced them.

- 9 -

The second ground for appeal was that the investigation revealed that the jury
was hung and that they laboured under the misconception that they needed to
deliberate at least one or two weeks before the court would accept that they
could not unanimously decide on a verdict.
The foreman described a scene of
considerable tension among the jury members. (He was the one holding out on
unanimity). He had been continuously reminded:
" 'Look we've got families to get back to, and
we've got this to get to, and I want to get back
to work', and, you know, how can you, you know,
eleven pccpl~ b~ ~~ong and one person be right;
and, you know, 'it's going to be two - we're
going to have to wait a week or two weeks before
they term it a hung jury; look it, Bob, what the
hell is going on?' , and I basically hung out
until 11:45 and I could see nobody was going to
change their mind; nobody was going with me and
like a damn fool I voted guilty just to get them
off my back."
This, and other statement s made about what was going on with the jury, caused
the B. C. Court of Appeal to remind the parties to the proceedings that the
investigation into the second ground of appeal was highly inappropriate.
The
jury members were not exempt from disclosing this information as it did not
relate to the allegation of obstructing justice.
The B.C. Court of Appeal said that the disclosures by the jurors were likely
true and that the verdict of guilty had probably resulted from their
misconception of a hung jury and the courses open to them.
"As this is all attributed to the Attorney's
General interrogation of jurors in breach of s.
576. 2, I think the Crown is in no position to
say that the verdict should be allowed to
stand."
Yarning that the peculiarities of this case stripped it of any precedent setting value for probing j ury's deliberations in other cases, the Court
ordered a new trial.

Appeal allowed
New trial ordered.

- 10 -

THE OFFENCE OF TIIREATENING

Regina v. SAULNIER - The County Court of Cariboo Prince George 10524, July 1987
The accused had his truck repaired and discovered that the bill exceeded the
estimate he received.
A dispute arose over an outstanding amount and a
private bailiff went to the accused's residence to seize the truck.
The
bailiff was armed with a distress warrant under the Repairer's Lien Act but
was met with extreme hostility when he served the document on the accused. A
detailed description would leave the reader with the impression that the
accused had gone berserk.
He, despite strong advice to the contrary, moved
the truck from the street on to his property.
When the bailiff followed with
his vehicle the accused swung at him and his partner with a crowbar. He then
ordered the bailiff off his property while continuing the threatening
gestures.
The bailiff complied and called police who arrested the accused
"because of their concern that a breach of the peace might occur".
On their
way to the police station the accused continued his verbal hostility. About
the garage who repaired his truck, the accused said to the officers (when they
suggested he try to settle his dispute with them civilly).
"Fuck that.
I' rn
going to take a baseball bat down there and kill the cocksuckers." When asked
where the garage was situated he responded:
"Follow me after you let me out
of gaol.
I'm going down to kill those fuckers ... etc."
The accused was
charged with possession of a weapon (the crowbar) dangerous to the public
peace and with uttering a threat (s. 243.4.C.C.).
With regard to the first charge the accused claimed that the bailiff was a
trespasser and that he had a right under sections 38,39 and 41 C.C. to use as
much force as was necessary to remove the bailiff.
The County Court held the
crowbar was, in the circumstances, a weapon and that the bailiff had lawful
possession of the truck, and therefore, the accused's possession was not
peaceable.
His behavior had amounted to endangering the public peace or the
normal state of society. Furthermore, he had used the crowbar beyond what was
necessary to remove an unwanted intruder. He was convicted.
In regards to the threatening, the County Court Judge said that the section
was clear and that the gravamen of the offence is the making of a threat
that was intended to cause alarm.
The Judge saw nothing in the section that
required the Crown to prove that there was an intent on the part of the
accused to carry out the threat or that it be passed on to the intended
victim.

Accused found guilty on both counts .

- 11 -

Comment:
The Court did not review the history of section 243.4 C.C.
The section used
to be s. 331 C.C. in Part VII of the criminal code which deals with "Offences
against rights of property."
In 1985 it was amended and included in Part VI
of the code which deals with "Offences against the person and reputation".
The original wording of the offence section ~:
331. "Everyone commits an offence who by letter, telegram,
telephone, cable, radio, or otherwise, knowingly
utters, conveys or causes any person to receive a
threat.
(a) to cause death or injury to any
person, or
(b) to burn, destroy or damage real or
personal property, or
(c) to kill, maim, wound, poison or inJure
an animal or bird that is the property
of any person."
There have been some interesting cases under this section. In one B . C. case a
person charged with impaired driving in the pre-breathalyzer days went to the
police station a few days later and said he would kill the physician who had
given him a sobriety test.
He did not request that the message be passed on
to the doctor, he simply made the statement with such apparent conviction that
he was arrested and charged under the above-quoted section.
The B.C. Court of Appeal gave lengthy reasons for judgment. The Crown had, in
terms of the uttering and conveying of the threat relied on the word
"otherwise" to bring the accused's actions within the section.
The Court
concluded that the tenor of the section, particularly due to the words "by
letter, telegram ... etc.", indicated that parliament intended to create an
offence for alarming a person by threatening him.
The offender rs intent
therefore, had to be that he wished the threatened person to receive the
threat.
Another element (although not essential) was the perpetrator hiding
his identity to amplify the devastation on the recipient of the threat.
At
least, the offence included the passing on of the threat to the intended
victim.
Whether or not there was any intent to carry out the threat was
irrelevant to the offence Parliament created.
Causing another person to live
in fear on account of threats was what the section intended to prohibit.
I

The Supreme Court of Canada seemed to take a similar approach to interpreting
this section when it, in 1974, gave reasons for judgment in R.V. Mabis (6 'WWR
304). Mabis had spotted in a pub, a person who had recently testified against
him. He had gone to this person and said: "Now I got you where I want you, I
am going to kill you." The Court held that the section strongly implied that
simply uttering a threat, face to face is not covered und.er this section.
Also, the offender had to go beyond simple uttering and had to intend to have
the message conveyed.
("Already proceeded from words to deeds and thereby

- 12 -

manifested his resolve . ") The Court suggested that the definition of assault
(which includes threats) was better suited for face-to-face confrontations.
Sinc e 1985 the section reads:
s. 243. 4

"Everyone commits an offence who , in
any manner knowingly utters, conveys
or causes any person to receive a
threat
(a) " ... etc. (as above, with
the exception of an insignificant
change in wording of (c))."

As indicated in the "note" following this section in Martin's Annual Criminal
Code 1988, the judicial decisions made in respect to the old section apply to
the new one. The tenor in terms of having the threat conveyed to the intended
target and that the gravamen of ·the offence is to alarm the target and not
just to utter the threat, still seem the same.
In view of all this, one wonders if the conviction of Saulnier, the unhappy
truck owner, would stand up if appealed further. In view of the ruling by the
B.C. Court of Appeal and the Supreme Court of Canada under the old section and
the new section seemingly having the same object, this County Court's liberal
and broad interpretation of the sections may not stand.
Another aspect of this case was the arrest made by the officers.
It is
indicated that they did so to prevent a breach of the peace and were entitled
to maintain custody of Mr. SAULNIER as long as there were grounds for
believing there would be a breach of the peace if they released him.
Mr.
Saulnier supplied an abundance of grounds for that belief. Despite the fact
that sections 30 or 31 C.C. seem not to include powers to arrest to prevent a
breach of the peace, a decision by the B.C. Court of Appeal in a civil suit
for false imprisonment*, made it clear that at common law, (prevention being a
duty) prevention of such a breach is included.
Finally, the legal status of the private bailiffs in this case is of interest.
It was also an issue not addressed in this case other than a ruling by the
County Judge that the bailiff who found the truck parked on the road in front
of the accused's home "took possession" of the truck and prepared a notice of
seizure.
That is when the fireworks started.
The Bailiff continued his
attempt to seize the truck and went onto the accused's property.
If the
accused had no right under the well known sections to protect his property he
did in fact by his very threatening gestures with a crowbar assault the
bailiff. The County Court Judge held that the bailiff acted lawfully and was
justified in aggressively pursuing the seizure despite the fact that the owner
and possessor of the truck refused to part with the property.

*

Hayes v. Constables Thompson and Bell - Volume 20, page 4 of this
publication .

- 13 -

An interesting case on this point was decided by the Ontario Court of Appeal
. set on payments. When he was
in 1960 * . A Mr. Doucette had purchased a T.V.
in default the lienholders went to a private bailiff and signed a distress
warrant. The bailiff, with the assistance of police, overcame the resistance
by Mr. Doucette and carried away the T.V. set. Mr. Doucette was charged with
assaulting the bailiff as a person in the lawful execution of a process
against goods (s. 118 C.C.).
The Ontario Court of Appeal explained that the
private bailiff in the circwnstances is no such person. The Court ruled that
section 118 C. C. only refers to persons who execute a Court order, but not
those who act on the instructions of a private party who claim a legal
interest in property. The court explained that when a private bailiff is told
by the possessor that he disputes the claim, then he is to leave.
A tug-ofwar on the spot is not a means of settling such a dispute; the c~urtroom is
the appropriate place.
The criminal law does not extend protection to those
who wish to lay claim to property in someone else's possession.
A private
bailiff acting on the part of another person, has no special status and when
he is told to leave and refuses, he is a trespasser. Section 39(1) C.C. seems
to indicate the same views in law.
It states that the possessor may defend
his possession under a claim of right even if the other party was entitled by
law to possession.
The views of the Ontario Court of Appeal have had a wide following in Canada.
Since writing the above, the reasons for Judgment in Regina v. Underwood were
distributed.
This was a judgment by the County Court of Vancouver Island
(Victoria 42921) rendered in December of 1987.
Underwood was charged with knowingly uttering a threat to his girlfriend who
he was living with "off and on". When things were not so good between them
she wanted him "out", but he declined to go. The scenario that resulted was
him laying on the chesterfield while his girlfriend and her sister- in-la1'l
argued with him from the kitchen.
At one point the accused said to his
girlfriend, without changing his bodily position; "If you don't shut your
mouth I' 11 stick a knife into you and you will shut up." This frightened the
sister-in- law who alerted the police.
The charge of threatening resulted.
There were no threatening gestures and there was no evidence of anyone having
been drinking.
The question was whether the Crown had made out a case under
the new section in thi s ''face to face" threat where the violence was
exclusively verbal .
This County Court Judge did review the Nobis decision by the Supreme Court of
Canada and applied various aspects of it to this Underwood case.
However,
without giving reasons for this conclusion the court said:
"Parliament has now determined that oral face to
face threats in fact constitute a crime."

*

R v. DOUCETIE et al (1960) 129 C.C.C. 102

- 14 -

The· Supreme Court of Canada had held that the old section did not prohibit
such an act because "countless are those who do not weigh their words . "
The County Court Judge in this case recognized that fact as a dilemma for the
Courts and held that consequently mens rea at the time the threat was uttered
is now an essential ingredient to the offence the new section creates.
The
circwnstances surrounding the giving of an oral threat must be considered to
determine if such mens re a was present .
Said the Court:
"
only tho~P. threats that are intended to be
taken seriously are covered by the
(new)
section."
The Crown had failed to prove that the words admittedly spoken by the accused
were demonstrating a rea l intent to actually threaten his girlfriend.

Accused acquitted

Note :
Obviously, this County Court Judge does not agree that judicial decisions made
under the old section apply to the new definition of the crime of threatening.
Also note that in R. v. Howlett (See page 28 of this volume) the B.C. Court of
Appeal never questioned the propriety of including a face to fa ce threat in
this offence . Neither did the defence raise the issue.

- 15 -

•coNSTITUTIONALITY OF PRIVACY ACT ALLOWING UNIIATERAL
CONSENT TO INTERCEPT A PRIVATE COMMUNICATION"
Regina v. WIGGENS - Supreme Court of B.C. - Vancouver, B.C .
No . CC851985 - May 1987
The accused approached a Mr. S and asked his participation in importing
hashish into Canada.
S went to the R.C.M.P. who supplied S with a "bodypack"
and intercepted with his specific consent, the conversations he (S) had with
the accused.
The conversation was transmitted and simultaneously recorded by
the R. C. M. P.
At his tri<> l. fnr l'."onspiracy to import a narcotic, the accused
served notice (under the provisions of the Constitutional Question Act) on the
Federal and B.C. Attorneys General challenging the consitutional validity of
the Criminal Code's "Invasion of Privacy" provisions that (1) render interceptors in these circumstances immune,
(2)
allows one person to unilaterally consent to the infringement of another
person ' s right to privacy (after all, one person in a communication with
two or more persons can, by himself, consent and thereby deprive others
from that right), and
(3)
that this one person can also consent to the admission of the
conununication in evidence that may well be against the others .
When the Charter of Rights and Freedoms came into effect, it was predicted
that it (specifically s. 8
- "unreasonable search and seizure") would not
apply to intercepting private communications. It has long since been conceded
that the Charter does apply and that such an interception is a search and
seizure.
All se·arches and seizures that are warrantless are by their very
nature unreasonable said the Supreme Court of Canada in 1984*.
Therefore,
the interception if allowed without authorization (as long as one participant
consents) is as unconstitutional, argued the defence, as the provision in the
then Combines Investigation Act which allowed searches that were in essence
warrantless.
What is of interest in thi s case, is that there was general agreement that, in
view of the definitions of "intercept" and "private communication" there would
have been no argument if S . had simply taped the conversation.
It was the
simultaneous transmission to and interception by a third party that brought
the matter within the "Invasion of Privacy" provisions, some of which were
constitutionally challenged in this case.
The Crown argued that Parliament's consent for this sort of interception
(search)
renders
these warrantless
searches reasonable.
The defence
responded
that
Parliament
cannot
guarantee,
by
means
of
entrenched
constitutional law, that we have certain rights and then take them away with
ordinary legislation.
Furthermore,
the Constitution says that where
Parliament's laws are inconsistent with the constitution that law, in as far
as it is inconsistent, shall be without force or effect.
That is the supreme
law.

*

Hunter v. Southam Incorporated, Volume
publication - and (1984) 14 C.C.C. (2d) 97.

18,

page

12

of

this

- 16 -

Another issue is the Supreme Court of Canada's ruling that s . 8 of the Charter
does not guarantee an absolute protection, but only where there is a
reasonable expectation of privacy.
Furthermore, by means of judicial licence
(authorization) the rights of the undividual must give way to the public
interest which justifies the encroachment by law enforcement.
Our privacy provisions are very similar to those in the U.S. They also have a
provision in their laws that one person can by his consent deprive others from
a privacy the constitution guarantees them by means of its Fourth Amendment.
Consequently, it makes sense to discover how they resolved this issue which
was kernel in some major cases.
The U.S. Supreme Court in essence concluded:
"Vlhat is the difference?"
If an agent had a direct conversation with the accused and records it in his
notebook afterwards, it is perfectly permissible for the agent to relate that
conversation to the Court.
The same goes for recording the conversation
s imultaneously to it taking place. Said the U.S. Supreme Court:
"If the law gives no protection to the wrongdoer
whose trusted accomplice is or becomes a police
agent, neither should it protect him when that
same agent has recorded or transmitted the
conversations
which
are
later
offered
in
evidence to prove the State ' s case. "
(Emphasis
is mine).
"Nor
should
we
be
too
ready
to
erect
constitutional
barriers
to
relevant
and
probative evidence which is also accurate and
reliable.
An electronic recording will, many
times, produce a more reliable rendition of the
unaided memory of a police agent."
The U.S. Court concluded that if the Fourth Amendment does not protect anyone
from having his conversation repeated in testimony by unaided memory, then how
could that Amendment prevent the admission of a far more reliable version of
that conversation.
Vlhen we share our wicked plots with others, them
testifying against us is a risk we take.
The U.S. Supreme Court, for instance, ruled admissible the taped conversation
in which a citizen offered a revenue agent a bribe for a favourable audit.
Despite the strong and unambiguous language by the Supreme Court of Canada in
1984.
(Hunter v. Southam), the interception with the consent of S fell short
of breaching s. 8 of the Charter, said the B.C. Supreme Court Justice . Also
here, it is impossible to distinguish between the "no live" or "live"
monitoring by police.
Application by accused was dismissed.
in evidence.

Conversation was ruled to be admissible

- 17 -

NO GREATER FAVOUR CAN BE AFFORDED A SUSPECT THAN
TO VIOI.ATE HIS RIGHTS OR FREEDOMS
Regina v. OLSON - B.C. Court of Appeal - CA 007379
October 1987
The accused accompanied a police officer and supplied breath samples on
demand. No arrest was effected and the accused was not made aware that he had
a right to retain and instruct counsel without delay.
At h is trail for impaired driving he attempted to have all of the evidence
suppressed on account of the infringement of his right to counsel.
However,
the accused testified and it was disclosed that he was a store detective and
was quite experienced in detaining people. He even had a Charter warning card
in his wallet and he conceded to have not only an awareness of the definition
of detention, but also had a reasonable understanding of the possible
consequences if a suspect's right to counsel is infringed.
\..Then asked why he
had not phoned a lawyer and exercised his right the accused responded:
"Strictly for the fact that I was very well
aware that you have to be read your rights,
like, that is part of the law."
The trial judge had concluded that the accused had deliberately not wanted to
deprive himself of the potential defence he raised at trial .
Therefore,
admitting the evidence despite the infringement of the accused's right, would
not bring the administration of justice into disrepute.
This issue ended up
before the B.C. Court of Appeal.
The accused relied heavily on the Therens decision by the Supreme Court of
Canada* which
establishes
that an infringement of right
to counsel
automatically renders evidence that a person by law is compelled to provide,
inadmissible. Acceptance of the evidence in the circumstances, would in view
of that compulsion always bring the administration of justice into disrepute,
argued defence counsel.
However, this Olson case was distinct from Therens
held the Court as it was a proven fact that the accused, Olson, was aware of
his right far beyond what the Charter warning would have accomplished .
Comment:
Although the circumstance s are unique and interesting, the judgment does not
seem to be too much of a trend-setter.
Some may read too much into the
Court's reasons.
Please note that the court did not say that where the
detainer knows the detainee to be aware of his rights to counsel he need not
inform him of that right.
The Court only said that in view of the proof, the
administration of justice would not be brought into disrepute by admitting the

*

See Volume 21, page 21 of this publication or 18 C.C.C . (3d) 481 .

- 18 -

evidence despite the infringement of the accused's rights.
Unless our Courts
hold that awareness is the objective of s. lO(b) of the Charter (and that
informing a detainee is only a means to that end) could it be said that
failing to inform an aware detainee is not an infringement of this Charter
right. Such ruling is not in the cards and could create greater problems than
preventing the absurdity of reading Charter rights to, for instance , a legal
expert.

******

- 19 -

ROAD CHECKS - RANDOM STOPPING OF CARS FOR INSPECTION

OF DOCUMENTS - ARBITRARY DETENTION
Regina v. LADOUCEUR - 35 C.C.C. (3d) 240
Ontario Court of Appeal

Two municipal constables in Ontario randomly stopped motor vehicles to check
driver's licences and inspect ownership and insurance documents.
The accused
had quite a driving record and was in the habit of driving whether his licence
was suspended or not.
The officers were totally unaware of this and the
accused's driving was normal and within the law when they decided to stop him ,
It was discovered that his driver's licence was suspended for non-payment of
traffic fines.
He was issued a swnrnons ticket under the Highway Traffic Act.
There were no warnings or reading of rights, no suggestions of arrest.
When
asked for his licence he simply told them the status of the document.
Th<:
entire contact was over in approximately 10 minutes.
The accused's lawyer
agrees that in terms of behaviour, and in treatment of the accused, nothing
improper or underhanded h appened.
There was no suggestion that anything
untoward took place between the accused and the officers.
The accused appealed his conviction for driving while suspended strictly on
constitutional arguments . That this Court of Appeal considered this matter to
be weighty is reflected in the granting of a one year adjournment when it
found that the Crown came inadequately prepared to argue its position .
Like all provincial traffic statutes,
provide that:
1.
2.

3.
4.
5.

and police acts

the Ontario statutes

no one shall drive without or with a suspended driver's licence;
every driver must carry his driver's licence, registration and insurance
documents with him and shall surrender them for the purpose of
inspection to a constable;
a constable may require a motorist to stop who shall inunediately come to
a safe stop;
a constable shall apprehend offenders and cause proceedings to be
conunenced against them; and
the enforcement officers have been given power to enforce the doing of a
prohibited act or thing, and such power is given as is necessary to
enable the person, officer or functionary to enforce the doing of such
act or thing.

- 20 -

The Crown argued that the statutes explicitly and implicitly gave the officers
the powers to do as they did.
Explicitly under the statutes and implicitly by
common law.*
These powers are granted for the protection of the public
welfare and the laws authorizing the officers to act must therefore be given a
broad, fair, and liberal interpretation to best assure the attainment of that
protection.
The defence had not much of an argument with the Crown's position but
submitted that the officers only have those powers when they have "reasonable
grounds for believing that unlawful behaviour has occurred or is. taking
place."
The Charter of Rights and Freedoms has now placed a restriction on
those powers.
If reasonah1P. ~rounds are not pre-requisite to exercising those
powers the enactments would be without force or effect as they fly in the face
of the supreme law which guarantees among other things:

1.

2.
3.

that we shall have the right to life, liberty and security of the
person and shall not be deprived of this right other than by the
principles of fundamental justice;
that we have a right to be secure against unreasonable search
seizure; and
that we have a right not to be arbitrarily arrested or detained.

and

Reasonable limits to thes e rights and freedom s may be prescribed by law onl v
where that is demonstrably justified in our fr ee and democratic society.
(S.l
Charter).
The defence argued that the laws supporting the officers' actions are not
reasonably justified unless the courts make them subject to the officers
having reasonable grounds for believing an offence has or is taking place.
The Crown argued that no such prerequisite ought to be created.
If the
enactments are inconsistent with what the Charter guarantees then they amount
to reasonable limitations to the rights mentioned above and are demonstrably
justified in our fallible though free and democratic society.
The Ontario Court of Appeal held that section 9 of the Charter is at the heart
of this issue.
It guarantees the right not to be arbitrarily detained.
The
questions to be answered are whether there is detention when a driver is
stopped by police and if, in this case, that detention was arbitrary.
In belabouring the definition of detention the court turned to the leading
post-Charter case decided by the Supreme Court of Canada in 1985**
One
description of detention was when a police officer assumes control over a
person in circumstances that may have significant legal consequences ... Mr.
Therens was found to be impaired by alcohol.
Needless to say the above

*

Supreme Court o f Canada.
see Volume 22, page 17
impaired drivers).

**

R.

R. v. DEDHAN - 20 C.C.C. (3d) 97.
of

this

v. THERENS, 18 C. C . C. (3d) 481.
this publication.

publication.

(Road blocks

Also
for

Also see Volume 21 , page 1 of

- 21 -

description applied to him. As police had not noticed anything amiss with Mr .
Theren's car or driving it was inescapable that:
" ..... in
essence,
the
police
stopped
and
detained
the
appellant
arbitrarily
to
investigate whether he might be committing a
criminal offence."
said the Supreme Court of Canada in 1985.
The: Supreme Court of Cc1uaua in 1986* also gave some guidance on the test
whether a law that is found to be inconsistent with the Charter is a
reasonable limit to its provisions.
(This is the case where this Court
declared s. 8 of the Narcotic Control Act to be without force or effect). The
Court held that the party seeking to uphold the limitation of a Charter right
or freedom must demonstrate justification for this upon preponderance of
probabilities.
To do this the party (nearly all of the time The Crown) must
show that the objectives for the limitation "relates to concerns that are
pressing and substantial in a free and democratic society." That is the first
step.
The second one is to show that the law in question has a rational
connection to the objective; does minimally impair the right or freedom, and
is proportionate in terms of its purpose and effects.
Therefore, a broad "go
ahead and do it". or "catch all" provision is not likely to pass this test
regardless of its noble objective.
This brought the Ontario Court of Appeal to examine mankind and its
automobiles; the bighway as the human abattoi r where we need protection from
ourselves and the actions of others.
Crown counsel submitted that his learned friend's argument that a motorist
should not be stopped unless the officer has observed something that gives him
reason to do so would defeat the law maker's obligation to make the highways
as safe as possible.
The human suffering resulting from malfunctioning
vehicles, unqualified drivers, and impairment are so immense and voluminous
that the random stop to prevent and detect these is very minor by comparison.
By the time these things become "observable from the outside" it is often too
late.
Accidents are frequently the scenes where such mechanical and
competence flaws become apparent.
Surely if, for the purpose of collecting taxes, we make spot audits of
business or personal books (where we are obliged to explain and make
statement) we can justify spot checks of our vehicles (during which we need
not to be searched or make any statements) submitted Crown Counsel.
In Canada there is one suspended driver for every 37 driving on our highways.
There are an average of 13,000 convictions per year of. unlicensed drivers who
cause the greater proportion of accidents which are on average more serious
than those caused by licensed drivers; and the uninsured cause nearly two and

*

R. v. OAKES, 24 C. C.C . (3d) 321.
publication.

Also see Volume 23, page 16 of this

- 22 -

one-half times more personal injury accidents than the insured drivers.
However, the Crown's data also showed a decrease in accidents and convictions
over the years preceding 1985 and failed to demonstrate that the random stops
by police had anything to do with this decrease or any comparison of charges
resulting from such stops and those preferred on discovery of offences by
other means.
Consequently,
the Crown failed to meet its burden to
demonstrate that the random stop procedure is a reasonable limit of the right
not to be arbitrarily detained.
The Ontario Court of Appeal then turned to U.S. Juris prudence. Although its
constitution does not contain a right not to be arbitrarily detained, the
issue is dealt with under their fourth amendment which is more or less the
counterpart of our s. 8 of the Charter (unreasonable search and seizure).
Their spot check is simply considered to be a search. Unbridled discretion to
stop anyone at whim is considered excessive and unconstitutional in the U.S.
Therefore, random stopping of vehicles be it for traffic rules, wildlifr
checks or agricultural or environmental purposes, is a consitutional taboo.
Reasonable grounds are a prerequisite to stopping vehicles.
The Ontario Court of Appeal concluded that "purely random stopping power"
infringes s. 9 of the Charter and cannot be considered as a reasonable limit
to the right guaranteed under that section.
However, the sections of the
Highway Traffic Act that grant such powers were not declared to be without
force or effect.
The law is valid but not to be used by police officers
except upon the basis of some reasonable, articuable or some other basis that
accords with the provisions of the Charter.
The Ontario traffic laws do
stipulate that the power to stop vehicles must be exercised in the officer's
lawful execution of his duties and responsibilities .
Consequently, the evidence that the accused drove while under suspension was
obtained by a means that infringed his Charter rights. Admitting the evidence
could,
in the circumstances, bring the administration of justice into
disrepute.
However, the accused must show on the balance of probabilities
that that is so. He failed to do that and therefore the fact that his licence
was suspended should not be excluded .

Accused's Appeal was dismissed .

Note:
Road checks for impaired drivers as part of an organized and announced program
is not affected in Ontario due to the Supreme Court of Canada decision in
Regina v. Dedman.
There is also enough room in this judgment to say that
where something becomes problematic and affects public safety and interest,
road checks may be proper if they are part of an organized and announced law
enforcement effort.
In the U.S. this would not likely be possible due to the
distinction in the status of the officer there from his Canadian counterpart.
However, that is a separate topic.
Also note that this decision is not
binding on B.C. Courts.
The closest we (in B.C.) come to decide on this was
in the BONOGOFSKI case - see Volume 29, page 1).

- 23 -

ADMISSIBILITY OF STATEMENT - WAIVER OF RIGHT TO COUNSEL
Regina v. Johnscon - County Court of Westminster - New Westminster
X017902

- August 1987

The accused, a man in his mid-twenties, was, due to mental retardation ranked
in the bottom 6%. of the I .Q. level for the general population.
He allegedly
committed sexual assaults upon two children. The information was passed onto
the police in the location where the accused resided, for the accused to be
interviewed.
This information included the name of the accused' s lawyer and
the fact that he did not want the accused interviewed unless he was present.
The police officer assigned to question the accused gave him the proper
warnings and made him aware of his rights to counsel . He began the intervie~
by saying that he had "heard" from the accused's lawyer and advised him to
call the lawyer.
A near 10 minutes trying resulted in only getting an
answering machine. The officer did supply the accused with a different number
and contact was made.
The accused was given privacy and upon the conclusion
of the conversation the officer asked:
"Did you talk to him?"
to which the
reply was, "Yeah." Then a statement was taken and it was the admi ss ibility of
it that was the issue .
The discussions and submissions were not in regard to voluntariness, but
whether the accused had waived his right to counsel when he made the
statement.
The leading case on this is one decided by the Supreme Court of
Canada in 1986*
There, an intoxicated woman explicitly said she did not want
a lawyer's advice and then gave a statement how she had taken her husband's
life. The Supreme Court of Canada held that before the Charter, the requisite
fact to find that she waived her right to counsel was that she declined legal
advice and gave her statement with "an operating mind".
The post Charter
requirements are application of judicial fairness which includes a finding
that the person knows what he/she is doing and understands the consequences of
waiving the right and giving the statement.
The accused in this case did not have the mental capacity to have such
understanding (as Mrs. Clarkson didn't due to intoxication).
The abstract
concepts involved were beyond the accused's capability to understand .
Furthermore, the officer who had done everything he could to ensure the
accused did speak to his counsel should have inquired, "What did he say? or
"What did he ask you to do?".
He was already aware of the lawyer's wish that
he wanted to be present during any interview.
While inquiring into the
communications between a lawyer and his client may be sensitive, there was,
considering the accused's mental handicap, an obligation on the officer "to go
further in explaining the right if there is something in the circumstances
which suggests that the accused does not understand."

*

CLARKSON v. The Queen, Volume 24, page 38 of this publication .

- 24 -

The accused had not waived his right to counsel when he made the statement , as
such an act requires a clear and unequivocal understanding of the right itself
and the effect of the waiver.
Though the officer had acted in good faith in that he believed he had
complied with all his legal obligations, in fact he hadn't. Further inquiries
as to the question of waiver were mandatory in the circumstances .
Hence,
there was an infringement of the accused's right to counsel and the
administration of justice would be brought into disrepute if the statement was
admitted in evidence.

* * ****

- 25 :

IS A SUBJECTIVELY DEGRADING AND UNNECESSARY STRIP SEARCH
UNREASONABLE?

Regina v. KALIN - County Court of Vancouver - No. C.C ~ 870602
September 28, 1987

When the accused was booked for impaired driving he was frisked and subjected
to normal body search.
He was then taken to a separate cell, asked to drop
his pants, bend over and spread his buttocks.* An officer shone a light on
his anus.
He was not touched or ridiculed.
However, the accused found the
search degrading, embarrassing and unnecessary .
When he came to trial the accused moved under s. 24(1) of the Charter that as
a remedy for the infringement of his right to be secure against unreasonable
search a judicial stay of proceedings be entered.
The Crown did not call any of the officers involved with the accused to
determine their state of mind at the time or their possible reasons for that
search.
There was only evidence of total cooperation by the accused and
"friendly chatter" between him and the arresting officers. On the other hand,
the accused had served two years for robbery · and was likely still on
probation at the time of this arrest.
The Crown suggested that this may have
prompted the gaoler to search the accused because he was a man convicted of a
crime of violence and not a mere routine search in compliance with policy .
In reviewing the law on this issue the Court was aware that the Ontario Court
of Appeal is of the view that a strip search in · these circumstances is
legal.**
In other words, the search itself won't render it unreasonable but
the manner in which it is carried out may do so.
However, that view was not
binding on this County Court and the judge did not find the judgment of the
Ontario Court of Appeal persuasive.
He held that unless the Crown can show a
justifiable reason for the strip search (routine or policy are of no
assistance in this) it was an infringement of the accused's right to be secure
against unreasonable search.
That left the question whether the remedy the accused suggested was proper.
The offence of impaired driving is serious and the accused has a long-standing
history of convictions for drinking and driving offences.

*

At that time it was department policy to search the anus of all male
prisoners. This policy was dropped shortly after.

**

Regina v. Horrison - Ontario Court of Appeal September 1986.

- 26 -

The search was by a male officer and was made as minimal as possible in terms
of being degrading. Therefore, the unreasonable search did not call for "the
application of the strongest of remedies".

Application refused .

- 27 -

UNION CERTIFICATION - THR.EATS AND 'WEAPONS

Regina v. Ha/LETJ' - B.C. Court of Appeal - Vancouver
CA 007446 - December 1987
The employees of a nightclub applied for union certification. Consequently, a
soured relationship existed between the employer and the employees. Thefts of
money became apparent and the employer became the recipient of threatening
phone calls.
To put an end to all of this the employer sealed the place off at the end of
one working day and addressed his employees armed with a loaded shotgun and
warned in the prelude to what he had to say, "Anybody who tries to leave won't
make it to the door . "
With this he fired the gun into an old door he had put across the doorway.
Although he never pointed the gun at anyone , there were employees in the
vicinity of the target.
Consequently, a charge of possession of a weapon
dangerous to the public peace w-as laid.
The Crown appealed the accused's
acquittal.
The trial judge had foun d that the gun had only been used by the accused to
intimidate the employees to listen to him.
The old door was deliberately
placed across the doorway to receive the shot that conveyed,
'I mean
business'.
This .was not dangerous to the public peace said the trial judge .
(He added he would have convicted had the charge been "intimidation".)
The B.C. Court of Appeal disagreed with the trial judge and held that
"dangerous to the public peace" encompasses a lot more than placing people in
physical danger.
The accused had also been acquitted of the face-to-face threat he made to his
employees in case they wanted to leave the meeting place. The trial judge had
found that there was a threat but not one to cause bodily harm or death.
There must be an intent to make the prohibited threat whether you want to
carry it out or not.
"On the evidence, it was possible to have a reasonable
doubt that the respondent intended to threaten to cause bodily harm or death."

Crown's Appeal allowed in regard to possession
of the weapon
Crown's Appeal re threatening was dismissed.
Comment:
Firstly, it seems fair to say that in B.C. at least face-to-face threats are
included ins. 243.4(1) C.C. although it seems there is sufficient room in the
wording to say that the cases under the old section apply.
The reasoning by
the Supreme Court of Canada under the old section suggesting absurdities if
"face to face" threats are included, still seems persuasive.

• 28 •

It i s quite difficult to understand the findings by the two courts that there
was a reasonable doubt as to the intent of the threat (nothing to do with the
intent to carry out).
A group of people were in essence unlawfully confined
by a person who held them literally at gunpoint and strongly implied that if
anyone would leave he/she would not make it to the door.
Then this is
followed up by an exclamatory gunshot into something that represents the exit
from the meeting place which would at least imply to anyone that should he/she
want to exercise his/her right to leave, their demise would be similar to that
of the shattered door.
It seems to be our national past-time to make labour issues ugly and venomous.
Our behaviour at labour scenes sometimes is a facsimile of civil war.
The
evidence shows that the accused in this case may have endured the brunt of
such behaviour .
Whether he had invited such treatment or that his act was a
desperate response to stop intolerable intimidation seems irrelevant to the
considerations in regard to a criminal verdict.
Any sympathy should be
reflected in the sentencing.

******

- 29 -

ARREST AND SEARCH

Regina v. BECK - County Court of Cariboo - For t St. John 3738
September 1987
A Cons table D had encountered the accused over a period of three years in
relation to transporting and trafficking narcotics.
The method of operation
was well known and the numerous times the constable received information from
informers was found to be reliable.
Searches of the accused's home and
vehicle had nearly always pajd off and had resulted in the seizure of
narcotics.
Information and corroborative evidence gave the officer grounds
for believing that the accused was supplying an Indian Reservation with
narcotics and transported the contraband in the very early morning hours when
he thought there "were no police officers on duty".
Constable D on his way to an unrelated call, went with his partner down the
highway at 0500 hours. He spotted the accused driving his truck. The accused
was stopped, arrested for possession of narcotics and then the truck was
searched.
A considerable quantity of narcotics were found in the spare tire
upon a "cursory" search.
The tire was apparently in the open box with the
lead not being sealed to t he rim and it immediately became suspect to be the
package.
Needless to say, the defence argued that the search was conducted upon a n
arbitrary arrest.
Therefore, the search was unreasonable and the evidence
found ought to be excluded.
The Court found that the prerequisite grounds for the arrest and the search
are the same. Either can only be legally effected upon reasonable grounds for
believing that the accused possessed narcotics.
Consequently, the Court reasoned:
"If the search was reasonable, the detention of
the accused was also reasonable to carry it out.
Whether that detention was by way of formal
arrest or otherwise is not important."
Considering the knowledge Constable D had of the accused's method of operation
he had the reasonable grounds to do what he did, and therefore, there was no
infringement of the accused's right to not be arbitrarily arrested or
detained and to not be subjected to an unreasonable search.
In the event he was mistaken, the County Court Judge indicated that he would
still admit the evidence as the reputation of the administration of justice
would not be affected by it. The officer had acted in good faith; his conduct
was not capricious considering his knowledge of the accused; his actions could
not b e considered harassment; the offence is one of considerable gravity,
etc .
Defence Motion to suppress the evidence was denied.

- 30 -

Comment:
There are some points in these reasons for judgement that may receive
different considerations from other judges.
If there was any merit to the
defence's submissions it was in regard to the claimed arbitrary arrest of the
accused. This Court reco.gnized that 1 but then concluded that it really made no
difference.
The Court implied that the accused was detained in any event,
whether the constable effected the arrest or not.
However, there are some
possible counter arguments to that conclusion.
Arrest is by the "Judges' Golden Rules" a gateway to a lawful search for
evidence. Detention can come as a result of a search and can exis t without an
arrest having been effected.
In other words, the cause and effects are
reversed and detention is included in arrest but not the other way around .
Detention can consequently be quite distinct from arrest but both trigger the
same Charter · rights .
Another trial judge may find that if the search caused
the detention it does not assist in rendering the search lawful.
If the
arrest was lawful so wa s the search (at common law).
Thus to say that how
detention was attained i s of no consequence, may be arguable.
Also, to find that the grounds for a lawful arrest under s. 450 C. C. and
grounds to conduct a lawful search under s. 10.1 of the Narcotic Control Act
are the same could cause a debate.
The arrest could only be effected on
belief based on reasonable and probable grounds while the search could be
conducted on belief on reasonable grounds only. In the case of an arrest , the
grounds for believing that a person has committed an offence must not only be
reasonable but must also make it probable that that is so.
The grounds for
the search are less stringent than the grounds for an arrest.
One may
conclude that the beliefs of the officer in this case were no doubt
reasonable, but that the accused was in possession of narcotics was in the
realm of possibility rather than probability.
Consequently, stopping the
accused was not arbitrary and the search was lawful.
However, to effect an
arrest on those beliefs may wel l be short of the prerequisites the law
stipulates.
If this is correct the officer had the powe r to search (provided, of course,
the Court finds that where the accused was found is a "place")* but not to
arrest, and if the arrest is unlawful it is capable of becoming the poisonous
tree on which no good fruit can grow.
Another member of the judiciary could have reasoned that the officer should
have simply searched the truck based on the reasonable grounds he had to do
so.
This would have caused the accused to be detained during the search and
would have entitled him to the same rights as when he would have been
arrested.
However, that judge could likely have reasoned similarly to the trial judge in
this case, that admission of the evidence would, in these circumstances, not
bring the administration of justice into disrepute.

*

See Regina v. SKINNER on page 33 of this Volume .

- 31 -

R.EASONABLE SEARCH - ADMISSIBILITY OF EVIDENCE
Regina v. KOKESCH - County Court of Vancouver Island Nanaimo CR 3585 - November 1987

Acting upon information from police in another community,
followed a certain vehicle to an address.

police

officers

The house and vehicle were kept under surveillance for four days.
Then the
officers attended at the address at 0200 hours and went up the 100 yard
driveway to the house and searched around the house.
They noticed
condensation on the sealed off basement windows. From a louvered vent a smell
of marihuana emitted, as well as heat excessive for normal heating. There was
also a hwnrning sound coming from that basement. The officers had come right
up to the house and had attempted to look in.
When asked if he was of the opinion to have bad reasonable grounds to search
at that time, the officer conceded he only had a suspicion that an offence was
being committed in the house.
The officers obtained a search warrant for the dwelling.
With this warrant
they also s~arched the vehicle they had followed. The warrant had been issued
on the basis of what was discovered during the early morning stroll for
discovery at and near the dwelling house in question.
The County Court Judge
ruled that the yard surrounding the dwelling house is a place that may be
searched without a warrant provided the police have reasonable grounds for
believing that narcotics are illegally held or kept there.
The officers had
no such grounds nor had they attempted any alternative investigative means of
discovering them.
Therefore, the search was unlawful and this rendered the
subsequent search warrant invalid.
Hence, the search of the house during
which the evidence for possession for the purpose of trafficking and
cultivating rnarihuana was obtained was warrantless.
The next question was whether the search was unreasonable.
In view of the
fishing expedition, based on unsubstantiated information, the search was
unreasonable.
The next question then was whether the administration of
justice could be brought into disrepute if the evidence resulting from the
unreasonable search would be admitted.
Mainly, in view of the officers
availing themselves of the illegal investigation methods without trying
alternative ways of securing the requisite grounds to do what they did, the
administration of justice would be brought into disrepute if the evidence was
admitted.

Evidence excluded.

- 32 -

SEARCH OF PER.SON AND CAR FOR NARCOTICS

Regina v. SKINNER - County Court of Vancouver - No. C.C. 871252
December 1987
The accused was found driving the wrong way on a one-way street.
His ability
to drive appeared impaired.
He admitted to have smoked marihuana which was
corroborated by a strong smell of that narcotic corning from his breath. The
officers searched the accused and his car and found the evidence which was the
basis for the allegation that the accused was in possession of a narcotic.
The trial judge had not admitted the evidence and the Crown appealed this
decision.
The County Court Judge held that the officers had, considering the
circumstances, reasonable grounds for believing that the accused possessed a
narcotic.
However, such grounds only give the right for a peace officer to
search a "place" and any person found in such a "place". The trial Judge had
held that the accused had been found on the street and that is not included in
the meaning of "place".
This being so, there was no authority to search the
accused despite the grounds for believing he possessed a narcotic, unless he
had been placed under arrest.
The Court rejected this defence position and applied the findings of the
Ontario Court of Appeal on this issue in 1984*.
"The word 'place' when found in a statute is
usually associated with other words, which
control its meaning. The word 'place', however,
may include an automobile.
It does not,
however,
include public streets,
or other
places."
"The word 'place' includes places of fixed
location such as offices or shops or gardens as
well as vehicles, vessels and aircraft."
In 1986 the Ontario Court of Appeal** reiterated its ruling on this point and
held that an automobile is included in the word "place".
Al though these
rulings were not binding on this B. C. County Court, they were found to be
persuasive by this B.C. Judge and others .

*

R. v. RAD - 40 C.R. (3d).

**

R. v. DEBar - 30 C.C.C. (3d) 207.

- 33 -

The argument that the accused was searched on the street outside the car was
also defeated as he had been " found" in the car.
The search had been lawful and reasonable and the evidence should have been
admitted.

Crown's appeal allowed
New trial ordered.

- 34 -

RIGIIT TO COUNSEL - BURDEN TO PROVE INFRINGEMENT ON ACCUSED

Regina v. LEITCH - County Court of Vancouver No. C.C. 861864 - April 1987
The accused collided with a police car.
His condition was such that blood
samples were demanded of him.
He phoned a lawyer and spoke to her for
fourteen minutes.
When asked:
"Did you get hold of your lawyer?"
He
replied, "Yes, but she told me I should contact another lawyer ... ".
This
lawyer lived in the Yukon and the accused was allowed to place the long
distance call (from Vancouver).
Some 25 minutes later, after police making
every effort to contact this lawyer for the accused, it was found that his
number was no longer in service.
This created an impasse.
The officers demanded the accused to take the test
while the accused refused to do so without his lawyer.
After it was
explained that he was obligated to blow, the accused gave the required
samples.
The first sample was given 1 hour and 16 minutes from the time of
the accident.
Thirty-nine minutes of that time was spent by the accused in
speaking to his lawyer and trying to get hold of the one he was referred to.
The trial judge found that the police officers had accommodated the accused
to "a great extent" and that his Charter right to counsel had not been
infringed.
She convicted the accused of "over 80 mg." and the accused
appealed.
Defence counsel argued that the right to counsel includes receiving competent
legal advice.
He used the police's extensive efforts to try to contact the
Yukon lawyer as evidence of their knowledge that the advice the accused
received from his own lawyer had not been adequate and competent.
The County Court Judge found that the 14 minute conversation the accused had
with a qualified lawyer is adequate time to gain advice.
All he said to
police after that call was that he was to contact another lawyer some distance
away.
He did not say why, neither was there any evidence that this was for
him to gain expert or more competent advice. The Court was left to guess that
and defence counsel invited the Court to draw that inference.
The County Court Judge reminded defence counsel that the burden of proving (on
a balance of probabilities ) that the rights of the accused were infringed are
on the accused. He failed to do so .

Appeal dismissed
Conviction upheld.

- 35 -

RF.ASONABLE BODY SEARCH

Regina v. WIEDEHAYER - The County Court of Yale - Kelowna 87/16
October 1987

A police constable, who was considered to be a forthright and truthful witness
had been told by an informer that the accused had a narcotic on him.
The
officer confro-:-ited the eccu!:ed en the street and said, "David, you are going
to be searched for narcotics."
"Go ahead.", said the accused while he spread
his arm.
Marihuana was found on him and he was consequently charged with
possession.
When the exhibits and the certificate of analysis were presented the accused
objected to their admission into evidence.
He claimed that the search was
unreasonable and therefore had infringed his right under s . 8 of the Charter.
The Court held that the officer had real evidence that the accused was in
possession of a narcotic.
He had to act when he did or else the evidence
would likely not have been found.
The Judge was of the opinion that the
search was reasonable and said that should he be wrong he would still admit
the evidence as in the circumstances it could not bring the administration of
justice into disrepute.
The evidence found existed prior to the detention, and search.
The evidence
had not been obtained by means of some self-incriminating situation which
would deprive the accused of a fair trial.
In addition, the officer had acted
in good faith.

Evidence was admitted .

Note:
The Judge held that the accused was detained from the time the officer told
him he would be searched.
He was not told of his right to counsel until he
was arrested subsequent to the search.
No issue was made of this delay in
making the accused aware of his rights.
It would seem that the B.C. Court of
Appeal on November 18, 1987 has opened the door to this Charter argument.
A
suspected impaired driver subjected to a sobriety test is considered detained
and must be made aware of his rights to counsel prior to the test. That B.C.
Court of Appeal decision may in principle not to be distinct from this case.
However, this decision was handed down two months prior to the B.C. Court of
appeal judgment.*

*

R. v. BONOGOFSKI -

See Volume 29, page 1 of this publication.

- 36 -

THEFT

I.

FALSE PRETENCES OR FRAUD

Regina v. CORHAK - County Court of Vancouver Island Victoria 44963 - September 1987

The accused took a cassette tape player out of a display case in a department
store, put it in a bag with the store's name on it, went to the cashier and
claimed he purchased the item the day before and now wanted his money
refunded.
He was given the money and was arresteq as he left the store . A
charge of theft of the cassette player was preferred and the accused was
convicted. He appealed.
False pretences and fraud are distinct from theft in that in th e latter the
owner does not wish to part with the property (other than by the offer of a
contract).
In false pretences and fraud the owner knowingly parts with the
property. The means by which the owner was persuaded to give up the ownership
constitutes the crime.
The accused argued that his intent was not to steal
the i;-ecorder, neither had he moved it from the display case for the purpose
of depriving the owner of the recorder.
His sole intent was to defraud the
store of funds equal to the amount mentioned on the price - tag. Consequently,
he may have committed a crime but not that of theft.
The County Court Judge held that the accused obtained the "refund" money by a
false pretence or fraud.
However, there was also a theft although a short
lived one.
The recorder was moved by the accused for the purpose of
converting it to his own use.
In other words, he stole the recorder to use it
in the separate and distinct crime of false pretences.

Appeal dismissed
Conviction of theft upheld

Note:
It seems much safer to charge false pretences in circumstances like these.
It
is also likely that the judiciary will not recognize this as a precedent where
someone switches price tags and then presents an item to the cashier to have
the benefit of a lower price.
There are cases where an allegation of theft
has been soundly rejected in such circumstances.
False pretences was held to
be the appropriate charge. The distinctions are self-explanatory.

- 37 -

.·

UNNECESSARY ARREST - ADMISSIBILITY OF CERTIFICATE OF ANALYSES
Regina v. 11EYERS - B.C. Court of Appeal - Vancouver CA 008399
February 1988
A constable stopped the accused, arrested him for impaired driving and
subsequently (prior to taking breath samples) issued him a 24 hour suspension
notice. As a result of the analyses of two breath samples given upon demand,
17 minutes apart, a certificate was adduced in court showing a blood .alcohol
content well in excess of the legal limit. He was convicted of "over 80 mg . "
and applied for leave to appeal his conviction to the B.C. Court of Appeal on
two grounds .
1.
2.

The arrest was unlawful as it was contrary to s . 450
(2) C.C. and thereby did infringe the accused' s right
under the Charter (s.7); and
The Certificate of Analysis was inadmissible as the
Crown failed to prove the samples were taken at least
15 minutes from one another.

The Arrest :
The officer testified that he had effected the arrest to prevent continuation
or repetition of the offence of impaired driving and to secure the necessary
evidence for the indictable offence he had reasonable and probable grounds to
believe the accused had committed.
Defence counsel argued that the officer
could have accomplished his objectives without the arrest.
A demand for
samples of breath would have been sufficient.
The B. C. Court of Appeal gave a very short reply to this argument.
It
reiterated its 1984 decision* on this point , that since the officer relied
upon the statute which authorized him to effect the arrest, "the detention by
any definition that could possibly be applied, was not arbitrary".
Admissibility of the Certificate :
Defence counsel had asked the accused and a defence expert in examination in
chief and the constable in cross-examination, if it takes time to take a
breath sample ("Is there a period of time between commencement of the taking
of a sample and the conclusion of taking a sample").
By this he proved that any human activity takes time. He was very careful not
to ask any of these witnesses how long the taking of a breath sample takes.

*

See R. v. Hclntosh - B.C.A.A. 002074 Vancouver 1984. Also, Volume
18, page 19 and Volume 29, page 21 of this publication.

- 38 -

The B.C . Court of Appeal, also for this argument, reiterated another decision
they made in 1984*. It said again that the statement in a certificate that a
sample was taken at a certain time and another was taken 15 minutes or more
later, is conclusive and final. Said the Court of Appeal:
"The Criminal . Code does not require that the
certificate of analysis should clearly state the
time in which the taking of the first sample was
completed and the time at which the taking of
the second sample was commenced" .
Leave to appeal denied
Conviction to stand .

*

v . lf()()RE - B. C.A.A. 001604 (1984).
See Volume 18, page 32 of
this publication.
"How to prove there is 15 minutes between the
taking of samples of breath."

R.

- 39 -

CRIMINAL NEGLIGENCE - VICIOUS DOG
Regina v. HOUGH - County Court of Vancouver - C.C . 850039
The accused's "Mugsy'', a pitbull terrier, was kept in an inadequa te kennel at
the rear of the accused's home.
The accused knew the kennel could not detain
Mugsy and he also knew from neighbours, friends and others that his dog had
bitten adults and children alike on several occasions. Putting his teeth into
human flesh seemed a pnstime for Mugsy.
When a neighbour discussed the dog
with the accused he s:..;.gt;c.s.:"d that Mugsy would not bite children.
The
accused had replied, "No, he will bite." After the accused owned the dog for
several months and was Lilly aware of the vicious propensities of his Mugsy,
the dog was at large age in on two successive days.
On the first day, he
indulged himself on a lady and the second day on a doctor. The indiscriminate
activities on the part of l'-'.ut_;sy on these two occasions resulted in allegations
of criminal negligence causing bodily harm.
The court firstly rejected the accused's submission that the charges were
preferred on account of th;. recent negative publicity the breed (pitbull
terrier) received.
The evidence of the dog's behaviour, regardless of breed,
and the owner's knowledge and disregard for the safety of others will have to
support the allegations.
The accused was fully aware of Mugsy' s propensities and the fact that the
kennel had no preventative value in keeping Mugsy from getting out and
actively pursuing his hobby.
HE knew people were continuously victimized by
Mugsy and the accused, despite his awareness, did nothing to prevent
continuation of the intolerable j eopardy everyone in the neighbourhood was
subjected to.

Accused Convicted

Note :
In Volume 13 (page 24) there is a far more elaborate synopsis of the law
surrounding domesticated animals and the criminal as well as civil liability
of their keepers.
It deals with the well known B.C. case of the Rotweilers
that chewed up two children (R. v . Manfred and Vera Hayerhofer).

- 40 -

STATEMENT - VOUJNTARINESS - CREDIBILITY
Regina v. THORNI1T and PIERRE - County Court o f Vancouver No . 870956 - November 1987

The wife of an accused person pleaded with the co-accused to confess.
This
would result in her husband going free she said.
The co-accused did confess.
It was clear that police had not instructed the wife to approach the coaccused , but they had provided her with the opportunity and "her words were
capable of arousing in him the hope that the police would make good their
promi se if he confessed". The confession was ruled inadmissible.*
In this case, the two accused (young adults) were seemingly caught in the act
of attempting to break and enter premises.
House breaking tools were seized
and the accused were apprehended .
A detective interviewed the accused
Thornitt.
He told him he had a " feeling" that he had been involved in other
Band E's. Thornitt rejected that idea.
The same detective then interviewed the accused Pierre and told h im that a
charge of possession of house breaking tools would be preferred and invited
him to clear up any other B and E's he had been involved in.
Pierre phoned
his brother- in- law (a policeman) and then said he wanted to make a clean
breast of things.
He confessed to seven additional break - ins he and Thornitt
had been involved in . Before making the confession, Pierre had unsuccessfully
requested that Thornitt could be present while he made his statement. A short
time later, a period during which the two accused were in the vicinity of one
another with nothing to prevent them from conversing, Thornitt also confessed .
Both accused testified during the voire dire and their version of how th e
confessions were made differed from that of the detective.
They claimed that
the typical inducements were made:
"If you don't cooperate it won't look
good for you in Court."
"The judge would look down on us for being
resistant." "It would be better for us to clear things up . " etc .
In terms of credibility, there was no contest. The accused's testimony had an
air of unreality and could not be accepted.
This , along with Pierre ' s
testimony that he felt he had let his family down and wanted to redeem himself
beginning by coming clean, made it quite clear that it was his remorse that
made him confess rather than any inducement by the detective.
The detective
saying:
"I think all B & E charges may perhaps be dealt with at the same
time.", was not an inducement or promise but a neutral statement that does not
misrepresent the criminal process.
However, was that also the case with Thornitt? There were no improprieties on
the part of police directly, but there had been no desire to confess on his
part.
As a matter of fact, when he heard that Pierre had told all (including
the other B & E's they had been involved in together) he had been angry.
His

*

The Queen v. BALI.ANGER is a British case .
in the judgement .

No references were given

- 41 -

lawye r claimed that there was no distinction between what happened in this
case and the circumstances in the case of the wife who pleaded with her
husband's co-accused to confess.
In other words, what Pierre had said to
Thornitt subsequent to making his confession, could by Thornitt, be assumed
to have come from the police.
The court drew the inference from Pierre's
evidence that he had also attempted to persuade Thornitt to confess.
The
test, whether or not there was an inducement, is a subjective one.
It does
not matter whether it was the police who directly or indirectly held out the
inducement.
Voluntariness is a prerequisite to admissibility so we can rely
on the truth of the content of the statement and an inducement may make the
statement unreliable.
Therefore, it is what the person, who makes the
statement, believes, that is important.
The detective had referred to the process he followed as a new investigation
technique.
From this the court inferred that the method used was designed to
have an accused persuade a co-accused to confess.
"I think that was what had
been the hope of ... " the detective.
The court concluded that there were no inducements, threats or promises .
Thornitt no doubt confessed because of what passed between him and Pierre but
that Hdoesn't affect the issue one way or the other" said the court. Without
elaborating any further, the judge held that the circumstances in this case
were not analogous to that in the case of the accused ' s wife pleading with his
co-accused.

Statements admitted in evidence .

- 42 -

REASONABLF..NESS OF SF.ARCH
Regina v.

CH~ANIEC

- County Court of Westminster X018247

October 1987
A constable spotted the accused standing next to a pick-up truck in the middle
of the night. Although the truck was owned by the accused and parked in front
of his home,
the constable remained suspicious due to the accused's
nervousness and the fact that he claimed to be checking a tire for a slow
leak at 2: 30 a. m.
This suspicion grew when the officer learned from the
office while staking out the truck, that the accused had a lengthy criminal
record including convictions related to narcotics.
Shortly after, the
accused came out of the house again, headed for the truck while looking in
both directions .
\..Th.en he obviously spotted the police car be withdrew back
into the house. This confirmed it for the constable that there was contraband
in the truck the accused was attempting to unload.
Having been discovered
anyway the constable used his flashlight to see if there was anything visible
in the truck. Again, the accused came outside and he expressed annoyance with
the officer's preoccupation with his truck.
The accused asked if there had
been any B and E's in the neighbourhood.
The officer answered in the
affirmative and said in the same breath:
"What are you hiding in the truck?"
He received no answer.
The information the officer by now had, coupled with the fact that he had
deal.t with the cultivation of marihuana at the house from which the accused
kept appearing, caused him to propose that the accused allow him to search
the truck. The response was a definite "No."
This prompted the constable to promise that he would stay around night and day
until the accused would move the truck.
Instead, the officer returned to his
office and sought advice from more experienced colleagues.
He was told, "If
you believe there are. drugs in the truck you have grounds to search."
The
Court held that at this point the officer had solid grounds to be suspicious,
but did not have the reasonable grounds to search.
Here, the reasons for judgment make a quantum jump and deal with the
admissibility of the fruits of a search of the truck which resulted in the
accused being charged with possession of a narcotic for the purpose of
trafficking.
The Court was very complimentary to the constable
commendable deliberations to comply with complex law.
deliberate, flagrant or wilful.

in respect to his
His conduct was not

This caused the Judge to hold that, despite the fact that the search was
warrantless and unreasonable, disallowing the evidence would not find approval
in the eyes of the community or any reasonable man.

The narcotics were admitted in evidence.

- 43 -

VALIDITY OF SF.ARCH YARRANTS - UNREASONABLE SEARCH

Regina v. WATI and HICKS - County Court of Vancouver No . C.C. 870523 - November 1987
A "Crime Stoppers" tip reported that marihuana was being harvested "today" at
a certain address.
Immediate surveillance of the house resulted in a van
being searched that left the premises with two male occupants.
Upon
instructions to stop the vehicle under any pretext and search it resulted in
seizing one pound of freshly cut marihuana. In the meantime, a search warrant
was applied for based on the "tip" and what was found in the van.
One J . p .
refused to issue the warrant. · After learning that one occupant of the van
had said the marihuana "came from" the address (the other had said it came
from elsewhere) the same information was taken to another J . P. who did issue
the warrant. However , it had been added that "another informant" said that he
knows cannabis is grown in the basement of the address.
Apparently the premises were searched and contraband was found as the entire
judgment is dealing with the admissibility of that evidence .
The application for the warrant did fail to disclose that the "other" person
in the van had said that the marihuana came from another address .
The
investigator had not included this in the information as he had disbelieved
that statement.
The Court held that his beliefs were substituting those of
the J.P.
It is the J . P . who, based on all of the evidence, must believe that
the applicant has the prerequisite grounds for a search .
The application also had left the erroneous impression of continuity in
relation to the address, the van and the pound of marihuana. In fact, the van
was only followed a short distance from leaving the address.
"Other officers
searched the van a considerable distance away" under the apparent pretext that
they were searching it as a van of similar description was involved in a
robbery the previous evening.
There was no evidence to show there was such a
robbery .
The second J.P. had been present during a radio conversation the investigator
had with the officers who stopped and searched the van and he therefore was
aware of all the information. That, the Court held, is not good enough as the
J.P. cannot go beyond the sworn evidence.
Due to a lack of "proper" evidence before t he J.P. upon which he could
exercise his discretion the warrant was declared invalid and the search was
consequently warrantless.
As the Crown declined to show that the search was
nonetheless reasonable the evidence was excluded .

Accused acquitted.

- 44 -

Comment :
We are only in the early stages of this sort of scrutiny of applications for
judicial licences.
As a consequence, a number of issues are far from
settled.
This Judge has dealt with some of those issues as though they were
well established in law in that he gave no reason why they were like that .
One of these is what a J.P. is told by the applicant is part of the
information some courts have held. In this case, .the sworn evidence contained
in the information was held to be the sole source upon which the J.P. can
exercise his judicial discreti.on.
The court, in essence, quashed ~he warrant
by declaring it invalid.
There is considerable law to indicate that a trial
judge cannot quash a warrant but can only declare a search unreasonable if he
finds flaws and faults in the way it was obtained.
No doubt, some liberties were taken in this case and the application could
have been improved upon.
The judge did not wish to say that the investigator
had been deceptive but held that the possibility of it was sufficient to rule
as he did.
With that, it seems implied that if the misleading of the J.P. is
unintentional the search may still be reasonable.
Also, that is not
completely in line with the precedents on thes e issues.

******

- 45 -

REFUSING TO GIVE BLOOD SAMPLE
'WHAT NEEDS TO BE PROVED?
Regina v. HARTIN - County Court of Vancouver No. C. C. 870101 - October 1987
As it was obvious that it would be impracticle to take breath samples from
the accused a demand was made of him (in hospital) to give f: sample of his
blood.
He bluntly refused but later told a nurse she could take a sample
provided she would not give any of it to the police.
He wa& consequently
convicted of refusing and he appealed the conviction.
The accused argued that it was simply not sufficient for the Crr·wn to prove
grounds for the demand, the demand itself and the refusal t o obtain a
conviction.
In addition, it should also have to prove beyond a reasonable
doubt that requisite conditions for the taking of a blood sample as outlined
ins. 238(3) C.C . existed (impracticability of taking breath samples, physical
condition which incapacitates the person from giving breath samples and that
the taking of a sample would not endanger life or health of the persor:).
The Crown submitted that the accused refused - period.
conditions for taking the b lood sample were in place?

What did it ma~ter if

The Court held that s . 238(3)(C) C.C. outlines the prerequisites tu the
demand and refusa.l.
It would be absurd to call doctors and nurses to say that
if the accused had not refused, a sample could have been taken.
A refusal
based on one of the conditions that must be in place to take the sample is not
a refusal as referred to in the C.C .
For instance, if a policeman, after a
demand, would attempt to take blood with a syringe at the scene of .>n
accident, and the suspect would not allow it, that would not be a refusal .
In this case the refusal was unequivocal.

Conviction upheld
Appeal dismissed.

- 46 -

THEIT BY FINDING OR BY CONVERSION
Regina v. HUNTINGFORD - County Court of Vancouver - No. C.C . 861811 February 1988
The accused and fellow workers attended at the home of a colleague for an
after-work bash.
One of the libatants broke his leg in the driveway when he
went searching for his car to go home. Needless to say, everyone went outside
to comfort and render aid to the unfortunate fellow until the ambulance took
him away.
Picking up pillows, coats and such after the excitement was all
over , the accused claimed he found two rings in the driveway.
He kept them
and promptly sold them for $50 each the next morning .
He said to police he
had considered the rings "scrap" and had not asked who owned them as he
anticipated false claims of ownership.
Of course, him selling the rings
defeats the claim of them being no more than scrap without value.
Consequently' the accused was charged with breaking
entry and theft' and
possession of stolen property .
The first charge was based on a Crown theory
that the rings were not found but taken from the home the following day when
he was dropped off to pick up his car while everyone had gone elsewhere to
continue the 'celebration ' .
I

Three interesting legal questions arose :

1.

Must the intent to steal be present when the conversion take s place
or can it arise subsequently, completing the offence at that time?

2.

Can a thief be guilty of possessing the goods he stole.
I s, in
those circumstances, possession not an act of necessity to theft and
therefore an included offence.

The Court held· that if someone finds something it does not amount to theft
until that person forms the intention to convert what is found to his own
use.
In this case, no charge of theft was preferred and the accused could not be
convicted of theft as an included offence to breaking, entry and theft. There
was simply no evidence to support the Crown's theory and all charges were
dismissed.

Comment:
If the Crown had prosecuted along the lines of the accused's version of how
he obtained the rings (by adducing his statement as proof of the truth of its
content) a conviction on the conunon law theory of theft by finding seemed to
have been probable.

- 47 -

SIMILJ\R FACT EVIDENCE
Regina v. SCHWAB - Supreme Court of B.C.
Vernon 17239 - November 1987
In 1981 the accused took a 16 year old girl for a sight-seeing ride . He took
her to a remote spot, overpowered the girl and smashed her in the eye.
He
wore a knife in a sheath which was threatening to the girl .
In compliance
with his dictates she alioweri him ~o have intercourse with her. When he drove
her home he offered to give her a $500 car he just purchased.
He spent four
years in jail for that crime.
In June of 1987, the accused offered an 18 year old girl a ride home.
He
drove her to a secluded spot, put a knife to her throat, forced her head onto
his penis and demanded intercourse.
He also drove her home and offered her
$20 and 100 hits of acid.
During his trial for the latter alleged sexual assault the Crown called the
1981 victim to relate what had happened to her as similar fact evidence.
Needless to say, similar fact evidence cannot be adduced for the purpose of
demonstrating that the accused has committed a similar crime before and
therefore he had likely done it again.
It can only be tendered to show
similarities in the modus operandi, or peculiarities the acts of the past and
those alleged have in common. A prejudicial effect of tendering such evidence
is inevitable; however, it must be relevant and its probative value must
outweigh
the
consequential
prejudice .
Modes
will
assis t
to
prove
identification and rebut any suggestion of innocent association .
The modes
in the two cases above are indeed similar as was the wording of the threats
and the apparent need to compensate for what was done.
Yet, they are not
unheard of if one considers other cases.
The similarities between the two incidents were too general and failed to
include in each a peculiarity that makes it safe to conclude that both acts
were performed by the same person. Consequently, the jury did not get to hear
the evidence of the 1981 incident.

******

- 48 -

SEARCH YARRANJS - REASONABLE SEARCH

Regina v. COCORAN and BATE - County Court of Vancouver
Powell River 05553 F - October 1987
Poli ce had reasonable and probable grounds to believe the two accused (who
apparently lived common law) cultivated and possessed marihuana for the
purpose of trafficking.
As the couple was in the process of moving, search
warrants were issued for both premises.
Nothing was found in either house.
However, police spotted a separate building on the property and an additional
search warrant was taken out.
This search warrant was identically worded to
the one issued on the new premises. The grounds . remained the same. However,
there was an additional building that, in their opinion, should be checked,
based on their "observations".
Because the information for the third warrant
was copied from the first two, the building i s attested to be the dwelling of
the accused.
This, of course, was not a full disclosure and was inaccurate.
Considering what the officers knew and the actual grounds for the third
warrant, the information on which it was issued was inconsistent with
reality.
The officers had made an erroneous shortcut "which was patently
wrong" despite their lack of malicious intent.
Although the judgment did not clarify this point, one can infer that the
charges against the accused were based on what was found by means of the
third warrant.
Thus, the Judge had to consider the admissibility of the
evidence.
The accused were not "known traffickers". However, the community's confidence
in the justice system could be shaken if evidence was admitted which had been
obtained with
a
faulty warrant.
The warrant
rendered
the
search
unreasonable.

Evidence excluded
Charges dismissed.

- 49 -

MISREPRESENTATION TO GAIN ACCESS TO A HOKE
FOR THE PURPOSE OF GATHERING EVIDENCE

Regina v. HANDSOR - County Court of Westminste r New Westminster No. X017911 - June 1987

Recently, the Saskatchewan Court of Queen's Bench excluded the evidence of a
wildlife officer who had purchased meat from a suspect. The purchase was made
in the suspect's home to which the officer ~ained access by deception (by not
identifying himself as a wildlife officer).
In this case a police officer,
who did not identify himself, was invited into the accused's home on two
occasions for the purpose of purchasing marihuana from him . A search warrant
was subsequently executed and a modest amount of marihuana was seized.
Needless to say, the defence used the Saskatchewan case to argue that all
evidence should be excluded due to the unlawful intrusion upon the rights of
the accused.
The County Court Judge had great doubts if any Charter right had been
infringed by the deception.
Even if there was an infringement of a right the
administration of justice would not be brought into disrepute .

Evidence admitted .

*

See page 45 of Volume 29 of this publication - Regina v. Bamford .

- 50 -

JUSTIFICATION FOR REFUSING A FIREARM ACQUISITION CERTIFICATE
HICKLE and The Queen - Supreme Court of British Colwnbia
Vancouver CC 8700972 - November 1987
Mickle had applied for the acquisition certificate he required to purchase a
rifl e.
He was a member of a well known and allegedly disreputable motorcycle
club, and consequently the certificate was refused.
He applied to a
provincial court judge to have the reasons for refusal reviewed ·and the
decision by the firearms o:fi~er reversed.
At the hearing before the provincial court judge a police witness had
testified that members of the motorcycle club the applicant belonged to "are
involved in many activities
from intimidation,
contract murder,
drug
involvement, money laundering, loan sharking, weapons, theft of vehicles, and
that sort of thing." He had gleaned this knowledge from personally monitoring
the club members and reading numerous files.
The applicant was the president
of a local chapter of the motorcycle club which expanded "to worldwide
proportions involved in drug trade ... murder ... intimidation of witnesses".
The chapter headed up by the applicant consisted of 12 members. Much of the
police evidence was no doubt hearsay and there was nothing in the police
files that showed the applicant was personally involved in any of such
criminal activities.
At this stage of the proceedings the hearing was adjourned.
The applicant's
counsel, by correspondence, demanded that the police expert produce the
police files containing the information testified to so he could conduct a
proper cross-examination.
When the hearing resumed a member of the R.C.M.P.
special squad monitoring the activities of motorcycle club testified that he
was a person interested within the meaning of s. 36.11 of the Canada Evidence
Act and objected to disclosing the information the applicant demanded,
" ... on
the
grounds of a specified public
interest
being
the
disclosure
of
certain
information contained in R.C.M.P. Special E
files could reveal information sources, police
investigation techniques,
or the nature of
ongoing investigations by the unit or other
police agencies that coordinate their efforts
with Special E Squad."
The hearing was again adjourned for the applicant to petition the Supreme
Court of B. C. to determine if the R. C .M. P. were obliged to disclose the
information the applicant demanded.
(Sees. 36.1(3) Canada Evidence Act).
The Justice of the Supreme Court firstly described the proceedings before the
Provincial Court judge in terms of process and purpose. The rules of evidence
need not be adhered to and hearsay evidence may be admitted as long as the
judge finds it credible.
The purpose is simply to examine if the decision of
the Firearms Officer not to issue a permit can be confirmed.
The burden of

- 51 -

proof is on the Crown to show justification for the refusal
permit; the degree of proof is on a balance of probabilities . *

to issue

the

A Staff Sergeant testified that due to the violent tendencies of those in the
motor cycle gangs information can only be obtained through informers.
Even
disclosing the reasons for his objections to disclosure would do irreparable
harm to the work of the special squad which monitors the club activities. A
Chief Superintendent indicated that disclosure would reveal informants and
undercover agents thereby jeopardizing their lives.
It would also disclose
police tactics and operations.
The applicant's lawyer argued that here the Crown had called a witness to givte
the most damaging evidence against his client and the organization he belongs
to, and then he is blocked from cross-examining that witness due to State
secrecy rules .
Furthermore, the Crown should show that the information the
applicant sought accP.ss to is jeopardizing the anonymity of informers .
In respect to the common law regarding informers, the Supreme Court Justice
was very mindful that it favoured the strictest protection of identity and
information . . Despite the explicit post Charter decision** by the Supreme
Court of Canada on the point , the Justice observed how there had been some
departures from this principle (all in wiretap authorization cases).
A
difference of opinion among the provinces i s obvious, despite the explicit
ruling by the Supreme Court of Canada:
"It has been decided once and for all, subject
to· the law being changed,
that information
regarding police informers' identify will be,
because of its content, a class of information
which is in the public interest to keep secret,
and that this interest will prevail over the
need to ensure the highest pos s ible standard of
justice."
In this case , the matte r was not guilt or innocence but merely if the
applicant should be extended the privilege of a firearms permit. The need to
maintain confidentiality outweighed the application of the highest standards
of justice
in processing the application for · a firearms acquisition
certificate.
Concluded the B. C. Supreme Court Justice
expected too much of s. 7 of the Charter :

after

saying

that

the

applicant

*

R. v. DHILLON (1981) 64 C.C.C . (2d) 483 .

**

BISAILLON v. KEABLE et al (1983), 7 C.C.C. (3d) 385 - Supreme Court
of Canada.

B.C. Court of Appeal.

Also, see Volume 15 of this publication .

- 52 -

"There is no absolute right to a firearms
acquisition certificate and there is no right to
perfect
fairness
and
disclosure
in
every
proceeding.
Every
privilege,
including
informant and Crown privilege, both of which
were recognized at common law, make lawful
inroads upon perfection and if s. 7 applies at
all, it can tolerate the reasonable limitations
contained ins. 36.l of the Evidence Act."

******

- 53 -

WAS THE ASSAULT A SEXUAL ASSAULT
Regina v . EDWARDS - The County Court of Vancouver No. CC 861751

Near midnight "a young female" walked by a church building.
"A young male"
person wearing a mask came from among the shrubs and grabbed the girl from
behind, around the facial area.
She screamed, fought and hit him with a paint
tray she was carrying.
The assailant attempted to drag the girl into the
bushes that were part of the landscape of the church building.
She made so
much noise that passer~-by became aware of what was going on.
The assailant
then released the girl, called her a bitch and fled.
There was no doubt that the accused was the assailant.
He was charged with
sexual assault.
His counsel argued that what occurred amounted to ordinary
assault only in that the attack was not of a sexual nature or was capable of
violating the victim's sexual integrity.
He implied that what the Crown
invited the Court to infe r from the circumstances (that when he got in the
bushes with the girl t.e would have violated her sexual integrity) was no more
than conjecture.
The Court rejected the defence's position.
Both the accused and his victim
were young persons; there was no attempt or apparent interest in depriving the
girl of the wallet she was carrying which fell on the sidewalk during the
struggle.
He pulled her to an area where they would not be seen and in the
proce ss began to pull her clothing over her head. Said the Court :
"Combined, these circumstances satisfy
me beyond a reasonable doubt that this
attack comes within the definition of
a sexual assault as outlined . ... in the
Queen versus Doltan Chase . "

*

Accused convicted of Sexual Assault .

*

See "Meaning of Sexual Assault".
Supreme Ccurt of Canada decision
on page 35 of Volume 29 of this publication.

- 54 -

LEGAL TIO-BITS
QUESTIONING OF YOUNG OFFENDER CONTRARY TO Y.0.A.
- - - - - - CONSTITUTIONAL BRF.ACH?
A c1t1zen alerted police of a break-in in progress in the house next door .
This report resulted in a description of the culprit .
Police spotted a youth
of similar description nearby.
He ran, shedding the stolen property in the
process.
He was apprehended, and was given all his rights.
He selected to
remain mute.
During the ride to the station a constable went into the back
with the youth and questioned him without any result.
Needless to say, this
was unfortunate and unwise in view of the specific provisions of the Y.O. Act
on this point.
The defence claimed this amounted to an infringement of the
youth's constitutional right and called for a judicial stay of proce(·ciings i1S
a remedy under s . 24 (1) of the Charter.
This was declined as nothing
resulted from this "unwise" move on the part of the constable. The B.C. Court
of Appeal agreed that there was no need to decide
if there was a
constitutional breach as no evidence was gained from it.
The conviction was
upheld.

R. v. X.G.W.S. - B . C. Court of Appeal - Victoria V00553
November 1987 .

* **** *
DOES 24 HOURS D.L. SUSPENSION BAR PURSUIT OF
DRINKING-DRIVING OFFENCES?
The accused had been stopped and received a 24 hour driver ' s licence
suspension.
He was also charged with impaired driving and uover 80 mlg". He
relied on s. 26 and 11 of the Charter to have the prosecution for those
charges stopped . He contended that a driver's licence suspension is a form of
punishment and that prosecution could lead to be punished twice for the same
offence.
The B.C. Court of Appeal held that the 24 hour suspension from driving does
not constitute punishment. The suspension does not amount to a "charge" which
s. 11 of the charter includes as a requisite to double jeopardy.
Accused's appeal dismissed.

Regina v. ART, B.C . Court of Appeal, Vancouver CA007422
October 1987

- 55 -

PRIVACY "WHILE CONSULTING COUNSEL

All seemed to go well and in a cooperative fashion when the accused was
processed for impaired driving. He spoke to his lawyer from a phone booth and
so did the arresting officer.
Yet, the accused refused to blow and gave lack
of proof that he drove as a reason.
At trial and two subsequent appeals by
the accused regarding his conviction for refusal, that lack of proof was not
the issue but the open door of the telephone booth was . The officer conceded
he could hear what the accused said to his lawyer.
This was an infringement
of his right to counsel according to the trial and Appeal Court judges.
However, the burden of proving that the administration of justice could be
brought into disrepute if the evidence of the refusal was admitted was on the
accused , and he had failed to meet that burden.
Neither did he demonstrate:
any connection between the infringement (lack of privacy) and the refusal .
Furthermore, closing the door of the booth would have been a simple remed y to
the accused's problem said a County Court Judge .
The accused then we nt to
the B. C. Court of Appeal which refused to grant him leave to appeal.
ThP
Crmm had argued before this Court that there had been no infringement of the
accused's right to counsel.
This was not responded to but it agreed with the
Appeal Court judge's (County Court) interpretation and application of s. 24 ( 2 )
of the Charter .

Regina v. RIJSIN - B.C . Court of Appeal - Vancouver CA007718
November 1987 - * For synopses of County Court judgment, see Volume 2 8 , page
31 of this publication .

******
•ooES ACQUITTAL OF SPEEDING PREVENT ADMISSIBILITY
OF SPEEDING EVIDENCE IN 'OVER .08 TRIAL'
The officer worked radar and due to a reading from the car the accused drove ,
the accused was stopped.
A demand for breath samples fol lowed and an
analysis of .180 mlg. resulted.
The officer, due to commitment to a higher
court failed to show for the accused's trial for speeding and a dismissal was
granted for lack of prosecution.
Subsequently, the officer testified at the
accused's "over .08" trial and told how he had stopped the accused for
speeding.
Defence counsel appealed the accused's conviction to the County
Court arguing that the officer's grounds to make the demand were the results
of the stop for speeding.
In view of the dismissal, the speeding did not take
place and that evidence was therefore inadmissible.
The County Court Judge
disagreed.
He held the evidence was adduced not to prove the accused was
speeding, but that the officer believed he was speeding .

Regina v. KAYE - The County Court of Vancouver - No. CC 842082 December 1987

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