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Polios
Written by !blin .Jfl. Post

Jioo. 1985

ISSUES OF INTEREST
VOLUME NO. 21
Written by John K. Post
November 1985
TABLE OF CONTENTS

PERSON UNDER. DEMAND TO GIVE SAMPLES OF BREATH RIGHT TO COUNSEL - MEANING OF DETENTION ••••••••••••••••••••••••
Regina v. Therens, 18 C.C.C. (3d) 481
Supreme Court of Canada
REASONABLE EXCUSE TO REFUSE ATrITUDE AND BEHAVIOUR OF PEACE OFFICER
Regina v. Barnsley, Vancouver County Court,
Registry No. CC831767

1

........................

5

IDERTIFICA.TION • • • • •.• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

7

Regina v. Todish 18 C.C.C. (3) 159
Ontario Court of Appeal

WARRANT WHERE DAMAGES OK INJURIES ARE FKARED - VAR.RANT
EXECUTED BUT NOT SERVED ON PRISONER - VALIDITY OF ARREST
Regina v. Allen, 18 C.C.C. (3d) 155
Ontario Court of Appeal

.......

9

SIDE DA.CltING • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

l0

Jack Falk and The Queen, Supreme Court of
British Columbia, Vancouver CC850576 - April 1985.

MAY IT BE PRESUMED THAT ONE WHO POSSESSES MAGIC MUSHROOMS
BAS DJOWLEDGE OF 'lllE KESTRICTED MUG 'lllEY CONTAIN? •••••••••••••

14

Regina v. Edgars, B. C. Supreme Court, Prince Rupert No. 7142T.

·cASUAL AR.REST• AND ITS CONSEQUENCES IN RELATION
TO SUBSEQUENTLY FOUND EVIDENCE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Duguav, Murphy and Sevigny - 18 C.C.C. (3d) 289
Ontario Court of Appeal

16

ADMISSIBILITY OF COKPUTEK. PRINTOUTS. - ARE 'l'HKSE
KECHANICALLY .ICKPT RECORDS, ·:ucoRDS MADE
IN THE USUAL AND ORDINARY COURSE OF BUSINESS"? ••••••••••••••••
Regina v. Symanski, County Court of Vancouver Island
Nanaimo CR3087, November 1984.

19

- ii -

KIDNAPPING AND UNLAWFUL CONFINEMENT
BURDEN TO PROVE THAT ACCOMPANIMENT WAS NOT VOLUNTARY ••••••••••
Regina v. Gough - 18 c.c.c. (3d) 453
Ontario Court of Appeal

...........................

21

FIGHT - CONSENT TO ASSAULT - INTENT
Regina v. James Thomas - Vancouver County Court Vancouver Registry C.C. 840480

23

SEXUAL ASSAULT - KKOTIOHAL STATE OF COMPLAINANT •••••••••••••••
Regina v. Mohr, Valliere, Shorobahoe and Walraven
Supreme Court of B. C., Vancouver Registry C.C. 831779

25

YOUNG OFFENDER'S STATEMENT - ADMISSIBILITY
VALIDITY OF WAIVER. FORMS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. G. - B. C. Court of Appeal - June 1985,
Vancouver Registry CA 003553

26

..................................

29

......................................

30

............

32

BEING A PAR.TY TO TRAFFICKING
Regina v. Filion, County Court of Vancouver
C.C. 841648 April 1985

SPEEDING AND THE CHARTER
Harper v. The Queen, County Court of Vancouver
Island #00610, May 1985

POSSESSION OF WEAPON DANGEROUS TO THE PUBLIC PEACE
Regina v. Backman, B. C. Court of Appeal,
CA 001655 - Vancouver

TRICKERY - SHAM CHARGES TO GIVE APPEARANCE OF
LEGITAMACY TO CUSTODY OF AGENT PROVOCATEUR • • • • • • • • • • • • • • • • • • • •
Regina v. Clarke, 19 C.C.C. (3d) 106
Alberta Court of Appeal.
CONTEMPT IN THE FACE OF THE COURT CHARTER OF RIGHTS AND FREEDOMS RIGHT TO A FAIR AND IMPARTIAL PROCEDURE
Regina v. Martin 19 c.c.c. (3d) 248
Ontario Court of Appeal

34

.......................

36

'LEGAL TIO-BITS •••.••.•••.•••.•••••••••••••••••••• • • • • • • • • • • • • •

38

-

1 -

PERSON UNDER DEMAND TO GIVE SAMPLES OF BREATH RIGHT TO COUNSEL - MEANING OF DETENTION
Regina v. Therens, 18 c.c.c. (3d) 481
Supreme Court of Canada
Therens, the accused, was driving a car and showed symptoms of impairment.
A demand was made for samples of breath with which he complied. Everything had gone very cooperatively and the accused was not
arrested at any time.
When the Crown adduced a certificate of analysis in evidence, the
accused objected. He submitted that he was not told of his right to
counsel, and, therefore, the evidence was obtained by an infringement
of his right to be so informed. Admission of the evidence would bring
the administration of justice into disrepute he claimed.
These
issues, via an appeal by the Crown, ended up in the Supreme Court of
Canada.
Firstly, the Supreme Court had to determine i f the accused had been
detained when he gave the samples of breath. The answer was a resounding "yes". The reasons for so holding were:
"The section of the Criminal Code (s. 235) clearly anticipates delay in some circumstances for the administration
of this test."
"••• the accused was not free to depart as be pleased. To
say that he was not detained is simply a fiction which
overlooks the plain meaning of words from the viewpoint of
an average citizen. An officious bystander would have no
difficulty in concluding that (the accused) was detained
and • • • had been taken into temporary custody."
·
• because of the limited duration of the detention,
is not, in my respectful opinion, a reason for limiting
the meaning of the word 'detention' to detentions of a
certain duration."
"In its use of the word 'detention', s . 10 of the Charter
is directed to a restraint of liberty other than arrest in
which a person may reasonably require the assistance of
counsel but might be prevented or impeded from retaining
and instructing counsel .....

- 2 -

"In addition to the .c ase of deprivation of liberty by
physical constraint, there is • • • a detention within s.
10 of the Charter when a police officer or other agent of
the State assumes control over the movement of a person by
a demand or direction which may have significant legal
consequence and which prevents or impedes access to
counsel".
The other important question was whether the evidence (the certificate
of analysis) should be excluded. The facts were simple: the accused
was under demand to give samples of his breath and he was, therefore,
detained; he should have been informed of his right to counsel and he
was not, therefore, his constitutional right was infringed.
The
Supreme Court of Canada replied in regard to the exclusion of the
certificate in evidence:
"To do otherwise than reject this evidence on the facts
and circumstances in this appeal would be to invite police
officers to disregard Charter rights of the citizen and to
do so with an assurance of impunity".
Crown's appeal was dismissed.
Comment:
It seems possible that Mr. Therens ' name will become as immortal in
Canadian law as the name Miranda is in the U. S. There seems little
doubt that this case will have considerable consequences. My views
are usually optimistic and I dislike to join those who consider all
cases that bring about change, bad decisions. However, I must make an
exception on this occasion. The Supreme Court of Canada seems to have
gone beyond any prediction I have been privy to.
The Court abandoned its own definition of detention as established in
the Chromiak* case and adopted one that is a culmination of the quotations above.
Furthermore, there was a strong opinion that the
Chromiak circumstances {which was a road-side breath test) were not
distinguishable from those in this case where the suspect had to
accompany the officer. The Court held that both situations constitute
detention.
Some other comments by the court on detentions in circumstances where
there is no legal obligation on the part of a citizen to do anything,

*

Chromiak v. The Queen (1979), 49 C.C.C. (2d) 257.
Also see page 3, Volume 1 of this publication.

- 3 -

would leave one to conclude that a subjective test is to be applied to
determine i f there was detention.
In other words, what did the
suspect believe or what was reasonable for him to infer from the
circumstances.
In respect to the exclusionary rule, I invite the readers to familiarize themselves with the explanation of that rule in Regina v. Collins
(see page 1, Volume 12 of this publication). It should be noted that
the B. C. Court of Appeal in that case disassociated itself from the
U. S. Judicial opinion that illegally obtained evidence may, among
other reasons, be excluded to deter authorities from such practices.
Let's consider the facts.
When Mr. Therens was apprehended, the
Chromiak decision, by the Supreme Court of Canada, was alive and
well.
Although some judges felt justified in holding differently,
nearly all courts held that being under a demand only, without being
physically restrained, did not constitute detention.
Therefore, it
can be said that the officers acted in accordance to judicially
created law. Yet the Supreme Court of Canada seems to have excluded
the certificate as not doing so "would invite police officers to
disrega~d
Charter rights of the citizen ••• with an assurance of
impunity."
What inferences may our courts draw from this judgement? Firstly, it
implies that the exclusion was a punitive measure and leaves one to
assume that our Supreme Court feels that the judiciary have a disciplinarian role in regard to authorities who infringe the Charter
rights of a citizen. Secondly, it seems that "good faith", or similar
causation for an infringement, is not an acceptable excuse to prevent
exclusion. Thirdly, as indicated above, all infringements, regardless
of circumstances, trigger the exclusionary rule. In other words, all
infringements bring the administration of justice into disrepute.
This, in essence, means our exclusionary rule is strict.
Only one Justice (who did agree that a demand creates detention) was
strong in expressing the view that it had not been established that
the administration of justice would be brought into disrepute if the
certificate was admitted in evidence in these circumstances.
It may be of interest to note that the trial judge had excluded the
certificate as a remedy under subsection (1) of s. 24 of the Charter.
The Supreme Court of Canada declined to rule if this was appropriate
in view of the specific provisions in subsection (2).
The Supreme
Court excluded the evidence under s. 24(2) of the Charter.

- 4 -

There are considerable debates in legal circles about the far-reaching
affects of this decision by our highest court.
The views of the
Supreme Court Justices were not consistent with one another and some
points I make can be argued not to be the opinion of the majority of
the Court. However, I am by no means the only one who is more than
surprised that the Supreme Court of Canada ruled as it did.

*****

•

- 5 -

REASONABLE EXCUSE TO REFUSE ATTITUDE AND BEHAVIOUR OF PEACE OFFICER

Regina v. Barnsley, Vancouver County Court, Registry No. CC831767
The accused, a 19 year old man, was involved in a single car accident. · A demand for a breath sample was made of him.
His young
passenger was arrested for outstanding traffic matters. The constable
and the accused got along famously and the evidence at trial showed
that the accused "exhibited co-operation and politeness".
Upon
arrival at the police building the accused and his passenger were
given in charge of another constable while the arresting officer made
ready for the breathalyzer tests.
When he returned a remarkable
change in the accused was noticed.
The attitude of co-operation had
changed into one of belligerence.
By abusive comments the accused
made it clear he was not going to take any test.
He did not give a
reason at the time for his refusal.
The accused and his passenger
testified at the former's trial for "refusing to blow" how the officer
who temporarily watched the prisoners decided to search the accused.
When he put his hand on the inside of the accused's leg he had
flinched.
The constable had grabbed th~ accused by his hair, pulled
his head back and slapped him across the face. He had then grabbed a
necklace the accused wore and had pulled i t off him upon which he
goaded the accused by saying: "try it". The accused had not spoken a
word and had not reacted in any way.
The trial judge had considered the episode an unfortunate incident for
which the accused could seek a remedy by other legal means.
The
officer who demanded the breath sample was not involved and was not
given a reason for the refusal.
The trial resulted in a conviction
which the accused appealed claiming that:
1.

the trial judge had not addressed the issue of reasonable excuse;
and

2.

the behaviour of the assaulting peace officer was so outrageous
that it in fact constituted a reasonable excuse for him to refuse
supplying a breath sample.

The County Court Judge reviewed some cases in which the question of
reasonable excuse had been an issue and concluded that police misconduct can cause a suspected impaired driver to have a reasonable excuse
for refusing to give breath samples.
In one case* a suspect was ordered to drop his pants and bend over
which caused hilarity among police officers who were present.

*

R. v. Cristoff (1978) 3 W.W.R. 577, B. C. County Court decision.

- 6 -

Immediately upon that humiliating drama the suspect had been told to
blow and he had bluntly refused. He was held to have had a reasonable
excuse to do so.
In another case* the Court held that malice, unfairness, illigality or
threats could give a suspect a reasonable excuse to refuse.
One
refuses, however, at one's peril. Whether an excuse is reasonable is
up to the Court regardless how sincere the suspect was in his belief.
This view was also adopted by the B. C. Court of Appeal**.
The
suspect in that case had consumed alcohol after his driving and he
concluded that the analyses would consequently be inaccurate. That,
however, was not found to be a reasonable excuse despite the fact that
the Court recognized that the accused had a legitimate fear of prejudice in respect to his blood-alcohol content at the time of driving.
In other words, fear of wrongful conviction is no excuse. Then there
was a decision by the New Brunswick Court of Appeal t in which that
Court held that a reasonable excuse includes a circumstance which
renders compliance with a demand extremely difficult or one that
involves a substantial risk to the suspect's health.
The County Court Judge reasoned:
"If there is police misconduct which understandably
infuriates a citizen such that his judgement is affected
and there is not sufficient time for him to collect his
thoughts and respond rationally to the demand, is that not
some circumstance which renders compliance extremely
difficult ••• and in those circumstances is the excuse for
such refusal understandably justifiable?"

The Judge answered both questions in the affirmative. He found that
the trial Judge had not considered the matter of reasonable excuse.
Furthermore, had he done so, then by law, he would have had to
conclude that the accused had a reasonable excuse.
Conviction set aside.
Acquittal substituted.

* * * * *

*
**
t

R. v. Miller (1972) 21 C.R.N.S. 21. Ontario High Court decision
R. v. Dunn (1980) 8 M.V.R. 198. B.C.
R. v. Nadeau (1974) C.R.N.S. 155.

- 7 -

IDENTIFICATION

Regina v. Todish 18 C.C.C . (3) 159
Ontario Court of Appeal
Mrs. C. was counting the cash receipts of the store she managed. A
man came in, pushed her to the ground, and took all the cash ($2,000
approximately). Mrs. C. gave a detailed description of the robber and
claimed that she recognized the robber as the person who came in the
store a few days before to use the telephone. In the evening of the
day of the robbery the accused came into the store and his features
and clothing were so significantly similar to those of the robber that
the employee on duty called police. The accused, a man with a record
of convictions for thefts, was arrested. His home was searched and a
jacket, identical in description to that worn by the robber was
found. No money was recovered.
Police phoned Mrs. C. and asked her to come to the police station as
they had a "suspect in custody". When she arrived she was told that
the suspect was upstairs in an office and was asked to walk past the
office to see if that suspect was the man who robbed her. The accused
was in the office with two police officers and was identified by Mrs.
C. as the robber.
The identification evidence was the kernel of the Crown's case when
the accused was tried by judge and jury.
The latter obviously
accepted the identification evidence as they convicted the accused.
The accused appealed.
The trial judge had not been elated about the way the identification
was handled. Besides human observations being notoriously unreliable,
this identification was to be viewed with some concern, he had told
the jury. Mrs. C might have been influenced by having been told that
police had "a suspect" in custody and then was shown that suspect in
between two police officers. The lack of a photo or actual line-up
was strongly criticized. However, the jury was told that the robbery
had happened only a few hours before the identification and that Mrs.
c. had been very positive. Furthermore, she had dealings with the
suspect before and had prior to the identification said that the
person who robbed her had made a phone call in the store a few days
before the robbery.
That, the Justice told the jury made the evidence, despite the unusual manner in which police handled the identification, capable of finding as a fact that the robber and the suspect
were one and the same person.

- 8 -

The Ontario Court of Appeal said that the police procedure had
rendered the identification by Mrs. C. "virtually worthless".
However, the court of Appeal agreed with the direction the trial judge
gave to the jury and the apparent acceptance of the identification
evidence was left undisturbed.
Comment: Should anyone find comfort in the fact that the evidence of
the identification withstood the test by means of appeal, certain
aspects of the system should be remembered. The appeal was based on
the instructions to the jury being inadequate. A judge sitting with a
jury must instruct what is capable of being, while the jury, applying
the law as instructed, does determine what is. A judge sitting alone,
does fulfill both functions, of course. All the judge in this case
could do was to determine i f by law a jury was entitled to find a
fact.
He, as well as the Court of Appeal concluded that, upon the
evidence, one could conclude that the person who used the phone, the
robber and the person subsequently coming into the store were one and
the same individual.
Whether or not these justices would have so
found if they were sitting alone is difficult to predict. They most
certainly were critical of the procedure police followed.

*****

- 9 -

WARRANT WHERE DAMAGES OR INJURIES ARE FEARED WARRANT EXECUTED BUT NOT SERVED ON PRISONER - VALIDITY OF ARREST
Regina v. Allen, 18 C.C.C . (3d) 155
Ontario Court of Appeal
Under the summary conviction provisions in the Criminal Code, a warrant may
be issued for the arrest of the person who the informant fears may cause
injuries to him or her. The person is not charged with an offence, but if
the justice, upon hearing the evidence is satisfied that the informant's
fear is based on reasonable grounds, then the prisoner can be ordered to
enter into a bond to secure good conduct or be placed in gaol should there
be a refusal to enter into a bond. Such a warrant was outstanding for Mr.
Allen. A police constable received radio instructions to execute the warrant at Mr. Allen's home.
The officer was 2 miles from where the warrant
was and one-half mile from the address where Mr. Allen lived. The constable decided to go without the warrant and saw Mr. Allen leaving his home
when he arrived. The constable told Allen about the warrant for "threatening" and effected the arrest which resulted in a struggle and an escape.
Later Mr. Allen was found hiding in the back of a truck and he was arrested
for escaping lawful custody.
Needless to say that when the accused was tried for escaping, the lawfulness of the arrest became an issue. In the summary conviction procedures
under the Criminal Code (section 728) it specifically states that where a
warrant is issued, "a copy thereof shall be served on the person who is
arrested thereunder".
Although section 745 C.C. (threatening) does not
create an offence but is a protective and preventative measure, the warrant
was nonetheless one issued in the first instance for the arrest of Mr.
Allen.
Not being able to serve the warrant upon arrest had not affected
the lawfulness of the custody. However, the serving of the warrant should
be done as soon as practicable after the arrest is made. Mr. Allen was not
served with the warrant at any time. This had affected the lawfulness of
the custody and an acquittal resulted.
The Crown appealed and the Ontario Court of Appeal convicted the accused.
It simply held that what was important was the status of the custody at the
time of the escape. Perhaps the custody later on, at the police station,
was unlawful due to the omission of serving the warrant, but when the
accused escaped the arrest and custody had been lawful. Furthermore the
Court rejected the argument that the warrant was issued without jurisdiction as section 745 C.C. does not create an offence.
Section 728 does
speak of a warrant for the arrest of a defendant. Of course, if there is
no offence their is no defendant argued the defence. The Court responded
that section 745 C.C. provides for a justice to cause the parties to appear
before him and Part XXIV of the Criminal Code is applicable to the means .
Therefore the warrant was issued in accordance to law.
Acquittal set aside.
Conviction substituted.

*****

- 10 -

SIDE TRACKING

Jack Falk and The Queen, Supreme Court of British Columbia, Vancouver
CC850576 - April 1985.
"Side tracking" is a much criticized practice in the United States.
The Court system in the States may appear similar to ours but it is on
closer examination quite different.
Basically, only Federal Courts
have jurisdiction over constitutional issues, and trials in State
Courts have, due to this, been stretched beyond belief. Every time an
innovative defendant or his counsel raises a unique constitutional
issue then, depending on the issue, the trial may have to be adjourned
until the appropriate Courts have made a decision upon the petition of
the defendant. Those, who are financially well endowed have been able
to exploit this system to their advantage.
The book, "The Price of
Perfect Justice"* by Mr. Justice Macklin Fleming of the Court of
Appeals in California, explains this system very well and the author
condemn~ the practice.
For reasons completely different to those in the U.S., it was feared
by many that our Charter would create a similar practice.
Indeed,
several attempts by defence counsel have been to have trials in lower
courts adjourned to enable them to take a Charter issue to a court of
superior jurisdiction.
Section 24 of the Charter deals with the enforcement of the rights and
freedoms and provides that anyone can seek an appropriate remedy from
a "court of competent jurisdiction" when their rights or freedoms have
been infringed.
The trend of the decisions where remedy is sought
for alleged infringements, where it involves a person accused of
having committed an offence, is that the court of competent jurisdiction to determine if infringement occurred and to impose a remedy, is
the court that has jurisdiction to try the accused.
This is consistent with the dictum that any Canadian court may decide
on constitutional issues, i f and when they arise during proceedings
appropriately before that court.
In this case the accused was charged with aggrevated assault.
The
correctional institute in which he served also alleged a disciplinary
default. Prior to his criminal trial he petitioned the B. c. Supreme
Court to prohibit the trial.
He claimed that proceeding with both
would amount to double jeopardy (s. ll(h) Charter). Defence counsel

* Published by Basic Books Inc. New York 1974.

- 11 -

had raised a forceful submission that this issue should be decided by
the Supreme Court instead of making the argument of double jeopardy
part of the defence to the criminal allegation.
She submitted that no person should have to stand trial if the Crown
has no constitutional right to proceed against him or her. Furthermore it would be an unnecessary inconvenience to witnesses to conduct
a trial if the constitutional objection is correct.
The Chief Justice of the B. c. Supreme Court responded:
"I have the view that, when a matter is before a court
that has jurisdiction to hear the substantive offence, it
is better in most cases that Charter defences be advanced
at the trial."
The Chief Justice was also of the view that the constitutional issues
to be raised must not be divided up with trials in one Court and
Charter applications in another.
That practice would relegate the
trial to a subserviant role.
Accused's petition dismissed.
The book "The Price of Perfect Justice" ought to be of particular
interest to us in view of our Charter and our search for its meaning
and application. In 1977 (pre Charter days), Barbara McLintock, the
well known B. C. Journalist (currently with the Vancouver paper, The
Province) wrote a review of this book for the predecessor of this
publication "The Criminal Justice Bulletin" (published by Camosun
College in Victoria, B. C.).
With her consent, here is Barbara's
review of "The Price of Perfect Justice".
"The Price of Perfect Justice": The Adverse Consequences of Current
Legal Doctrine on the American Courtroom.
By Macklin Fleming.
Published by Basic Books, Inc., New York, 1974.
The author was a
Justice of the California Court of Appeals.
Controversy surrounding the administration of justice in B. c. appears
to have come to a head in recent weeks, with complaints of chaos in
the criminal courts in Vancouver and, finally, involvement of the
entire provincial cabinet in the issue. Various solutions have been
suggested, most of them having to do with Crown counsel - hire more
prosecutors, pay them better, give them merit pay, and so on. There
have also been recommendations to increase the number of judges, to
build more courtrooms, to improve management of the system.

- 12 -

However, if we follow the theory proposed by Macklin Fleming, we must
conclude that these will be no more than band-aid solutions and will
do nothing to solve the real problems of the system. Fleming's argument in The Price of Perfect Justice is that the root problem is a
philosophical one, not a political or administrative one. His thesis
is based on the U.S. experience, particularly that of the state of
California, but i t can easily be applied to B.C., though in a less
extreme form.
Put briefly, his thesis is: "The Goddess of Justice is traditionally
depicted holding in one hand the scales of justice, with which she
weighs the Right, and in the other, the sword, with which she executes
it... The sword and the scales belong together, and the law is in
phase only when the power with which the Goddess wields the sword is
equalized by the skill with which she balances the scales ••• This book
argues that, in our perpetual adjustment and tinkering with the
Goddess' scales in order to strike a perfect balance, we have allowed
her sword to rust and her right arm to atrophy; that~ as a consequence
of this neglect of the compulsive element, the legal system as a whole
has been thrown out of kilter and into disarray".
The reason for the tinkering, Fleming argues, is that those in the
legal system have come to believe that "with the expenditure of
sufficient time, patience, energy and money, it is possible to achieve
perfect justice in all legal process", and that this perfection is an
ideal to be assiduously sought. The search, he notes, has led to an
ever-increasing emphasis on form and procedure at the expense of
substance, to the point that the central question in some criminal
trials is not the factual guilt or innocence of the accused but the
correctness of the procedure used in investigating, arresting and
trying him.
But, he says, "in our pursuit of the will-o'-the wisp of perfectability, we necessarily neglect other elements of an effective procedure,
notably the resolution of controversies within a reasonable time, at a
reasonable cost, with reasonable uniformity, and under settled rules
of law".
The result of the search for perfectability is that less
actually gets accomplished, and accomplished well, than would otherwise be the case, and as a result, the administration of justice falls
into disrepute with the public.
"But, the perfectionists argue, no sacrifice is too great to assure
that in a given case, perfect justice will be done. Ignored is the
sacrifice of the legal order itself and of the life, liberty, and
property of those that the legal order is designated to protect.
Ignored also is the necessity that the procedure we follow lend substance to the moral and ethical idea that those who take up the sword
shall perish by the sword.

- 13 -

"Each time the criminal process is thwarted by a technicality that
does not bear on the innocence or guilt of the accused, we trumpet
abroad the notion of injustice; and each time a patently guilty person
is released, some damage is done to the general sense of justice."
After outlining the thesis, Fleming - who is a judge of the California
Court of Appeals - goes on to document dozens of ways that the process
is being thwarted by the search for perfectability. The examples are
all taken from the U. s., and while some of them apply in B.C., most
do not.
It is clear from the examples that the situation in many U. S. jurisdictions is far worse than that in B. C. and we have not yet developed
many of the problems plaguing their courts.
For example, in the
U. S. a case can be shuffled back and forth enlessly between state and
federal courts, determining what jurisdiction each has in various
aspects of the case (side tracking).
Also, in the U. S., a judgement by its Supreme Court on the subject of
the rights of an accused can be considered retroactive, so someone
convict~d of an offense 20 years ago has the right to appeal under a
Supreme Court judgement made yesterday.
However, we do already suffer from some of the same problems - delay
caused by an accused who changes his lawyer several times over and
must be given an adjournment each time to ensure his right to a full
defence is not compromised, for example. It is also possible to cite
some Canadian examples that do not apply to the U. S. - prosecutions
that result from police wiretaps, for instance.
Witness the case in March in Vancouver where the Court of Appeal
quashed a conviction in a drug-conspiracy case because the Crown had
not produced a witness to testify that he saw the judge sign the order
authorizing the wire tap. Surely this is a perfect example of a case
where guilt or innocence became irrelevant, and the only question as
the perfection of the investigative procedure.
The Price of Perfect Justice is undoubtedly a controversial book and
would be met with considerable opposition from some persons in the
justice system.
But it also presents an important argument, and
should surely be read by all those - politicians and administrators who are about to tinker with the system further and apply more bandaids to its serious wounds.
It might be noted also that the book is exceptionally well-written and
is easily read and digested by anyone with only the most basic understanding of our legal system.
Barbara McLintock

*****

- 14 -

MAY IT BE PRESUMED THAT ONE WHO POSSESSES MAGIC MUSHROOMS
HAS KNOWLEDGE OF THE RESTRICTED DRUG THEY CONTAIN?

Regina v. Edgars, B. C. Supreme Court, Prince Rupert No. 7142T.
The accused, a middle aged woman, was found picking "magic mushrooms".
She already had a quantity of them in a plastic bag when
police officers seized the mushrooms and told her that it was illegal
to pick the plants. She had explained that the mushrooms were for her
ailing brother-in-law who used them as a pain killer.
There was no
mention made by anyone that the mushrooms contained a restricted drug
(psilocybin) and hence there was no evidence the accused knew she was
in possession of that drug. She was convicted of possession of psilocybin and appealed by means of stated case.
In 1979 and 1980 the B. C.* and Alberta** Courts of Appeal had held
respectively that possession of the mushroom was not intended by
Parliament to support a charge of possession of its integral parts.
However, in 1982 the Supreme Court of Canada t expressed a different
view. The major question in that case had also been whether a person
could be convicted of possessing psilocybin by being in possession of
the natural plant that happens to contain that drug. Since hallucinogenic effects can be attained by chewing the plant, the Court
concluded that possession of the mushroom is the equivalent of possession of the restricted drug it contains. The question was put: "But
what about the owners of land that happen to have these mushrooms grow
wild; or the person who is innocently in possession of what they
believe to be an ordinary mushroom.
The Court replied that common
sense on the part of the authorities would protect them.
Apparently following the Supreme Court of Canada decision the trial
judge had concluded that the accused possessed mushrooms which in turn
contained the restricted drug.
However, the appeal turned on the
issue whether the Crown had proved requisite knowledge on the part of
the accused.
The trial judge had held that the accused's statement
that the mushrooms were for curing a sore back was of no assistance in
determining if the accused had the knowledge necessary to convict her.
The trial judge had held that the knowledge must be presumed if
possessing the plant is possessing the drug it contains.

*
**
t

R. v. Parnell (1979) 51 c.c.c. (2d) 413
R. v. Cartier (1980) 54 c.c.c. (2d) 32
The Queen v. Dunn - See Volume 10, page 12 of this publication

- 15 -

The Supreme Court Justice who heard this appeal referred to a decision
by the Ontario Court of Appeal* which states that when the Crown has
proved possession, the presumption arises that the accused had guilty
knowledge. In this case the accused had not called any witnesses nor
did she testify herself.
This meant that the Crown having proved
possession the trial judge properly inferred mens rea.
Conviction was upheld.

*****

*

R. v. Couture 33 C.C.C . (2d) 74

- 16 -

"CASUAL ARREST" AND ITS CONSEQUENCES IN RELATION
TO SUBSEQUENTLY FOUND EVIDENCE
Regina v. Duguav, Murphy and Sevigny - 18 C.C.C. (3d) 289
Ontario Court of Appeal
Mr. and Mrs. L. preparing for an evening out, put their dog in the
garage. One of three young men who were visiting in the neighbour's
back yard asked Mr. L. if he always did that when he went out. He
said he did. When the L's returned home in the early morning hours
they found their home had been broken into and stereo equipment,
jewelry and liquor was missing.
Needless to say police were told
about the three young men.
The neighbour knew that one of the young men was the "Murphy lad" and
it was arranged that this lad and his buddies would come over to the
neighbour's. When they arrived the L's identified two of them as the
young men they saw the night before. The threesome was invited into
the rea~ of a police car as two detectives wanted to speak to them.
When one of the detectives during the trial of the young men for
"break, enter, and theft", was asked if the accused were under arrest,
he had replied that they were under "casual arrest".
The officers
conceded that at the time of the arrests they only suspected the
accused had committed the break-in and had questioned them to enhance
their investigation and obtain confessions. Subsequent to the "casual
arrest" the "Murphy lad" made a statement that confirmed the officers'
suspicion and an official arrest was made for the break-in with the
usual warnings. This resulted in confessions from all three accused
and the recovery of the stolen property.
The trial judge had held that the arrest was unlawful as it was not
made on the well known prerequisite grounds. In these circumstances
the accused were also arbitrarily detained contrary to their rights
(s. 9 Charter).
He had disallowed the confessions and the spin-off
evidence of the recovery of the stolen property as admission of that
evidence would bring the administration of justice into disrepute.
The Crown appealed the consequential acquittals.
Every unlawful arrest does not necessarily result in arbitrary detention, confirmed the Ontario Court of Appeal. In this case the "casual
arrest" (which the Court held has no support in law) had been made to
assist the investigation and hopefully confirm the "hunch" of these
experienced officers.
In other words there were no grounds for an
honest belief based on reasonable and probable grounds. This flagrant
departure from the dictates of s. 450 C.C. caused the resulting detention of the accused to be arbitrary.

- 17 -

As an aside, i t seems that the Ontario Court of Appeal was of the
opinion that the arrests had been totally unnecessary.
The accused
had been co-operative throughout and the confessions and recovery of
property would likely have resulted without the arrests.
The sole question the Ontario Court of Appeal was now to address was
whether the admission of the voluntary statements, the recovered
stolen goods and the fingerprints taken of the accused (which matched
those found inside the L. home) would bring the administration of
justice into disrepute. The trial judge had used words as "shocking",
"nefarious" and "unlawful" to describe the action of the officers. He
had said that only the use of torture would exceed these practices in
impropriety. These words were "excessive" and his reasons too general
in describing the actions of the officers, said the Court of Appeal.
There are cases where trained evidence is acceptable as rejection
would be more harmful to the state and society than the acceptance of
it. Not all admission of evidence obtained consequently or subsequently to an infringement of an accused's right will bring disrepute on
the administration of justice.
Furthermore, the Court of Appeal
reiterated that if an accused applies for rejection of evidence under
s. 24 of the Charter the onus to show that his rights or freedoms were
infringed is on him.
Crown counsel also argued that before evidence can be excluded under
s. 24(2) of the Charter there must be a causal connection between the
infringement of a right or freedom and the obtaining of the evidence.
The Ontario Court of Appeal did not confirm that the Crown's submission was an accurate statement of the law but responded that "be that
as it may" there was such direct link between the arbitrary detention
and all of the evidence.
Subsection (2) of section 24 of the Charter states that when an
infringement is found the circumstances must be considered to determine i f disrepute will befall the administration of justice.
For
instance, were the officers really up against it and did they have to
take certain liberties with the law to avoid greater harm to society?
The answer also in this regard was "No".
The youths were 17 years
old; they were identified; they were not about to abscond; they had no
criminal record; and (this is somewhat hard to grasp) the Court held
that the offence (B & E of a home with life imprisonment as a maximum
penalty) was not a serious offence.
The Ontario Court of Appeal found in a 2 to 1 decision, that the trial
judge did not err in law in finding that admission of the evidence
would bring the administration of justice into disrepute.
Crown's appeal dismissed.
Acquittal of all three accused upheld.

- 18 -

Comment: This case could cause a lot of confusion as on the surface,
it seems to contradict binding precedents.
The Court rejected the confessions made by the accused not because
there was a doubt about them being made voluntarily, but because they
were obtained by an infringement of the accused's right not to be
arbitrarily detained.
If the Court had not admitted the statement because of a problem in

regards to voluntariness the evidence of finding the stereo equipment
and the finger print evidence should have been admissible. This was
demonstrated in the wellknown case of The Queen v. Wray. By means of
an involuntary statement police recovered the murder weapon.
A
ballistic test had corroborated the accused's claim, that it was the
murder weapon. All Courts (from the trial court to the Supreme Court
of Canada) held that Wray's confession was inadmissible but the
Supreme Court of Canada held that where facts are discovered as a
direct result of an inadmissible statement then that portion of the
statement relating to those facts and the facts themselves are admissible.
This doctrine of "subsequent facts" is, to the best of my
knowledge, alive and well. That where a statement is excluded because
of an infringement of a right or freedom, that doctrine has no application.

*****

.

- 19 -

ADMISSIBILITY OF COMPUTER PRINTOUTS.
ARE THESE MECHANICALLY KEPT RECORDS, "RECORDS MADE
IN THE USUAL AND ORDINARY COURSE OF BUSINESS"?
Regina v. Symanski, County Court of Vancouver Island
Nanaimo CR3087, November 1984.
To prove a criminal allegation against Symanski it was essential for
the Crown to have monthly bank statements admitted in evidence.
Defence counsel objected to the admissibility and a voir dire was conducted. The kernel question was whether a computer print-out is "a
copy of any entry in any book or record kept in any financial institution". S. 29 of the Canada Evidence Act provides that such records or
booke must be received in evidence as prima facie proof of such entry,
transaction or account.
Furthermore s. 30 of the Act provides that
records made in the usual course of business are admissible in evidence.
When records were adduced in the past the Courts would not admit their
content unless there was evidence (usually by means of an affidavit)
that:
1.

the statement was an ordinary book or record of the bank when the
entry was made;

2.

the entry was part of a usual and ordinary course of business;

3.

the record was in custody and control of the bank; and

4.

the copy adduced in evidence is a true copy.

Now that all the records and books are kept electronically, those prerequisite conditions to admissibility are difficult to meet.
The
accused therefore objected to the admissibility of a copy of his
monthly bank statements. He claimed that the Crown had failed to show
that the entries on the computer printout could be relied upon to
demonstrate his transactions. To do that the Crown would have to show
"the procedures and processes relating to the input of entries,
storage of information and its retrieval". In other words, the computer software package.
The Court did not buy the accused's arguments.
Quoting the B. C.
Court of Appeal* on s. 29 of the Canada Evidence Act and computer
printouts of records, the Court held that the section "had aptly
survived the transition from the past era of unwieldy ledgers through
*

R. v. Best

- 20 -

the era of ledger card cabinets and wheels, to the present era of the
immovable and often far distant electronic data storage and retrieval
centers of computer accounting".
The printouts were admissible under the provisions of s. 29 as well as
30 of the Canada Evidence Act.

*****

- 21 -

KIDNAPPING AND UNLAWFUL CONFINEMENT
BURDEN TO PROVE THAT ACCOMPANIMENT WAS NOT VOLUNTARY
Regina v. Gough - 18 C.C.C. (3d) 453
Ontario Court of Appeal
The 200 lb. accused, a man with a violent temper, was engaged to a 90
lb. woman. Their courtship, during which they lived together, is not
described as a romantic event.
The woman was subjected to severe
violence.
Apparently one day the woman had enough and went into hiding.
She
knew that the accused would not give up until he had found her and if
he did, would persist and use violence to get her back.
On an
occasion that she had to go out to do some business, the woman left a
message with her hostess that if she was seen with the accused the
police should be notified. The accused did spot the woman and drove
her around to her appointments, accompanying her everywhere and not
letting_ her out of his sight.
The woman testified that if she had
resisted his company she would have been beaten. She gave in and out
of fear only, she stayed with him. The accused drove to another city
and allowed the woman to phone her hostess to say she would not be
home.
They ended up at the woman's parents place where they stayed
overnight. In the morning hours police arrested the accused. He was
charged that he had without lawful authority confined, imprisoned, or
forcibly seized the woman (section 247 C.C.).
Subsection (3) of section 247 C.C. states that when a person is
charged under that section, the lack of resistance on the part of the
victim is no defence unless the accused proves that the failure to
resist was not caused by duress, threats or force. This, the accused
claimed, is inconsistent with the Charter provisions which stipulate
that one can only be convicted in accordance with the principles of
fundamental justice.
It also contradicts the right to be presumed
innocent until proven guilty he said. In view of these provisions the
reverse onus created by s. 247 (3) C.C. is of no force or effect
claimed the defence (see section 52(1) Charter).
The Ontario Court of Appeal commented that the lack of consent to the
confinement on the part of a complainant is only a matter of common
sense. When we give someone a ride in a car or host a person on an
island, we actually confine that person.
The consent to that
confinement exonerates us.
Lack of resistance is not by itself a
defence but is simply relevant to the matter of consent. In this case
it was up to the accused to turn the evidence of lack of resistance

- 22 -

into evidence that the complainant consented to the confinement.
Needless to say lack of resistance leads to a reasonable inference
that there was consent. This inference is because of s. 247(3) C.C.
not open to the judge of the facts, unless the accused shows on the
balance of probabilities that he by threats or force did not cause the
failur e to resist.
If one comes to think of it, this reversed onus provision is awkward.
Gestures we make, words we speak, or items within reach may be misinterpreted and cause a person to feel confined on account of them.
That person may, out of fear, not resist or object.
Actually the
section demands that an accused proves something that was in the mind
of another person.
The Court suggested that subsection (3) should not be a reverse onus
clause but should simply say that lack of resistance caused by threat
or force is no evidence of consent to confinement. The complainant
then simply could testify what caused him or her not to resist and the
accused would simply through cross examination or defence evidence
have to rebut that evidence.
This Court did something quite similar to the position it took on
presumptions of fact. There are several in the Criminal Code and at
connnon law. For instance, if a person was found in the driver's seat
of a car we may presume the fact that he had care or control of the
car. The test devised whether such "presumption" is an inappropriate
one is whether the prerequisite evidence makes the presumed fact a
probability.
In other words, there must be a logical link between
what is and what may be presumed. The Court in essence held that the
same applied here. Not containing such a link the reverse onus was
considered unreasonable and arbitrary.
The Court of Appeal declared s. 247(3) C.C. to be contrary to the
Charter provision and therefore without force or effect.
Accused's appeal allowed.
New trial ordered.

*****

- 23 -

FIGHT - CONSENT TO ASSAULT - INTENT

Regina v. James Thomas - Vancouver County Court - Vancouver Registry

c.c. 840480

The accused and the complainant had engaged in a bar room fight.
There was no doubt that their activity was like ballroom dancing as
both were willing parties to the engagement.
The accused, who is
powerful and large, quickly gained the upperhand and the complainant's
actions became less aggressive and eventually were completely
defensive.
He was laying on the floor, face down, with his hands
covering the back of his head and neck. The accused did not let up
and continued to beat his victim who by now was no longer a
combatant. When the victim (apparently to get away) raised himself on
one arm, the accused took his boot to the complainant's face.
This
caused serious injuries and the loss of one eye.
Consequently the
accused faced a charge of wounding thereby committing an aggravated
assault.
The defence claimed that:
1.

the accused did not commit an assault as
consented to the fight;

the complainant had

2.

there was no specific intent on the part of the accused to wound;
and

3.

that the precedent set by the New Brunswick Court of Appeal* is
distinct from this case as that related to a schoolyard fight.

With regard to consent by the victim, the Court in essence applied the
well established test in which the stages of a fight are distinct from
one another. Basically, when one consents to a fight he gives consent
to be aggressively touched and to match the required skills for such a
contest. However, it must be inferred that anyone only consents to a
fair fight •

•

Criminal intent is divided into general and specific intent. For the
former the Crown only needs to prove that the person intended to
commit the act that constituted the offence. For the latter it must
be proved that the accused specifically intended the consequences of
his acts.
In other words, under the relatively new section 245.2(1)
c.c. (aggravated assault), does the Crown only have to prove that the

*

R. v. McTavish 8 c.c.c. (2d) 206

- 24 -

accused intended to assault his victim, or does it have to prove that
the accused specifically intended to wound his victim.
The Nova
Scotia case is on all fours with this one. A schoolboy, in a fight
that had turned into a criminal assault, kicked his victim in the head
causing him serious injuries.
The same defence was raised, but the
New Brunswick Court of Appeal said that that kind of kicking involves
bodily injury as a probable consequence.
No one who consents to a
fair fight can reasonably contemplate such act. However, that wounding was intended needs not be inferred anymore from the kicking or
other excessive act.
Specific intent was required under the old
section 228 C.C. but not under its successor. Said the Court:
"... on the evidence a kick in these circumstances where
one person is in a clear submissive posture, the other
person is wearing boots, to the face is sufficient intent
to satisfy the provisions of this section and this indictment."
The Court concluded that section 245.2(1) C.C. has substantially
changed the law. Where assault (the severity of the beating prior to
the kick was sufficient to infer an intent to do bodily harm) results
in wounding, then the general intent to do bodily harm is sufficient.
Accused convicted.

*****

- 25 -

SEXUAL ASSAULT - EMOTIONAL STATE OF COMPLAINANT

Regina v. Mohr, Valliere, Shorobahoe and Walraven
Supreme Court of B. C., Vancouver Registry C.C. 831779
Prior to Bill C-127 in 1983, there was a common law exception to the
hearsay rule known as "Recent Complaint" also known as the "hue and
cry principle".
It is age old and was an invention of the defence
side of criminal trials. It was reasoned that if a woman was sexually
violated she would raise a hue and cry at the first opportunity. If
she had failed to do so then perhaps she was not violated either. The
principle was eventually seen as a prosecution tool to negative consent and to establish the credibility of the complainant. The statement that "first complaint" could be presented via the confidant. The
statement was not to prove the truth of its content but simply to
corroborate the complainant's evidence. Later the role was extended
to all crimes where the victim (male or female) had an experience that
lead to.hysteria or panic.
Bill C-127 abrogated the rules relating to evidence of "recent complaint" in sexual assault cases (does not abrogate it in regards to
other offences).
However, no matter how closely the doctrine is
related to the mental state of the complainant and the words he or she
uttered, what is abrogated is the complaint. There seems nothing to
prevent the Crown from adducing evidence describing the complainant's
mental state or his/her behaviour.
That was done in this case of
sexual assault. The defence objected strenuously and claimed that the
Crown was trying to lead evidence of "recent complaint".
The B. C. Supreme Court Justice held that the evidence of the complainant's emotional state was admissible. The weight of the evidence
is to be determined by the judge of the facts. Concluded the Court:
"The abrogation by s. 246.5 of the recent complaint exception to the hearsay rule prevents the introduction by the
Crown of statements made by the complainant to others. It
does not prevent the introduction of relevant evidence,
albeit circumstantial, which the jury may view as corroborating her testimony."
Evidence allowed.

* * ***

- 26 -

YOUNG OFFENDER'S STATEMENT - ADMISSIBILITY
VALIDITY OF WAIVER FORMS

Regina v. G. - B. C. Court of Appeal - June 1985, Vancouver Registry
CA 003553
To question a 16 year old juvenile regarding his involvement in some
break-ins a police officer went to the youth's home. The juvenile was
home and was told all - identity of officer - right to remain silent right to have anyone present should he decide to speak to the officer
- the reason for the interview - etc. The juvenile asked what would
happen should he have been involved.
The officer said he would be
charged accordingly. The youth responded that a lawyer would tell him
not to say anything. He indicated to have gone this route before and
he made it clear that he would not discuss the matter with the
officer.
Upon this the officer told the youth that fingerprints were found at
the scene.
Should the youth's prints be on file and should he be
involved in the break-ins a warrant in the first instance would
probably result. A moment's pause resulted after which the youth said
he had been involved in two break-ins and was prepared to give a
statement.
The officer again gave the youth his right to remain
silent, the right to have anyone present and the advice that he could
talk to a lawyer first.
Despite this the young man signed a waiver
form thereby acknowledging to be aware and to have understood all of
his rights (see s. 56(4) Young Offenders Act).
Despite this apparently flawless compliance with all legal requirements on the part of the officer the trial judge had ruled that the
statement was inadmissible in evidence. The waiver form did not quite
match the provisions contained in section 56 of the Young Offenders
Act.
Furthermore all the warnings given had conveyed to the youth
that whatever he said would or may be given in evidence. This, said
the trial judge, was not in compliance with s. 56(2)(b)(ii) Y.O.A.
which stipulates that what must be conveyed to a young suspect is that
"any statement given by him may be used as evidence in proceedings
against him". This, held the trial judge, means a person in authority
must not say that the evidence may be given, but that "the statement
could be used in evidence against him".
Furthermore, the warnings
given and printed on the waiver form, refer to oral statements (you
need not say ••• ) only.
This may confuse a young person to believe
that the warning does not refer to written statements.

- 27 -

The Crown took this ruling to the B. C. Court of Appeal which gave a
short reason for judgement which in my opinion and interpretation of
it, made it clear that the trial judge had taken matters too far. The
three justices unanimously stated that the Court had overlooked the
provision in s. 56 which states that the language used to convey to a
juvenile his or her rights, must be appropriate so it clearly explains
what their options are.
The trial judge had exclusively examined the waiver form while he
should have considered its content in conjunction with what the
accused youth was told by the officer.
The B. C. Court of Appeal, in my view, simply directed that comm.on
sense must prevail. What is appropriate language for one is not for
the other. The key issue is that the Crown must show that the accused
youth understood all his rights. "Appropriate language" is synonimous
here with whatever language is necessary to make him .or her understand
all of the rights they have and the options open to them under section
56 Y.O.A. Apparently in response to the trial judge's interpretation
of subsection (2)(b)(ii) the Court of Appeal .said that what must be
clear to the suspect is that if all prerequisites are met, his statement "would be admissible in evidence against him".
Crown Apeal allowed.
Statement admitted.

Comment: Despite the word "against" in the last sentence above, I do
not believe the Court of Appeal intended to take a view of the provision in s. 56 Y.O.A. similar to that of the trial judge. Firstly the
Court would have emphasized that point; secondly it would have
defeated its own reasoning on the interpretation of the section.
Actually, the Court of Appeal held that the essence and tenor of the
section must be met by ensuring that certain specifics are conveyed to
a young suspect in such language that he or she can understand the
meaning rather than hear the words.
It should also be seriously considered if the section, in relation to
the warning preceding the taking of a statement, says that the young
person must know that any statement he makes may be admitted "against"
him. The word "against" in s. 56(2)(b)(ii) Y.O.A. seems to refer to
"the proceedings" and not "the evidence". Needless to say if one is
tried for an offence the proceedings are against that person.

- 28 -

At one time the Courts were critical of a warning that informed a
suspect that his utterances may be used "against" him and in some
cases it was not accepted by the Court as a proper warning (despite
the fact the warning was not mandatory). How could, for instance, an
exculpatory statement (except one that denies the obvious) be against
an accused. Also, it is entirely the function of the Court to determine if a statement is for or against an accused. In any event police
were discouraged to include the words "against you" in their warnings.
Since the late seventies, the words "against you", due to the views
expressed by some courts of superior jurisdiction, have become innocuous. One judge said that i f an officer had told an accused that his
utterances would be held against him, that most certainly was not
binding on the court.
The evidentiary value of the statement would
not change one iota because of what the officer said.
In terms of
proving voluntariness, the judge was of the opinion that the words
"against you" were more likely to make a suspect remain silent.
It
therefore enhanced the proof of voluntariness, despite its legal
inaccuracy.

* * * * *

- 29 -

BEING A PARTY TO TRAFFICKING
Regina v. Filion, County Court of Vancouver C.C. 841648 April 1985
An undercover officer encountered the accused on the city streets and was
taken to a third party who sold the officer some marihuana.
The accused's version of what happened differed slightly from the
officer's. The officer swore that the accused opened the conversation by
saying, "Pot or hash?" When the officer had replied "Pot", he was taken to
the man with the goods a short distance away.
The officer then made a
purchase in the absence of the accused. The accused also testified. He
said the officer had approached him and had asked: "Have you got something
to smoke?"
He agreed with the rest of the officer's version of what
happened.
The accused was charged with trafficking and argued that he had simply made
the officer aware where he could obtain the contraband he asked for. That,
the Courts have held, does not constitute being a party to trafficking.
The Court held that passive presence at the commission of a crime is not a
crime; also that mere introduction as in this case, with no further
involvement in the sale and no acts to further it, is not an offence.
The County Court Judge reasoned that i f one would go to "McDonald's" and
ask someone there where marihuana is sold, he is likely going to get directions and prices quoted. The person who gives that information does not
aid or abet the trafficker.
Therefore, a reasonable doubt existed if the accused was a party to trafficking and he was consequently acquitted.

.

Comment:
It seems that i f the officer's version of his initial contact
with the accused was accepted, the Court would have had to infer that the
accused was actively soliciting business for the trafficker. It would in
those circumstances be difficult to say that the accused was "passive" on
the scene of the alleged crime. Even if the accused's version of the contact was accepted there is a difference between a "passive" and an "active"
presence regardless of who initiated the contact or broached the purchase
of the contraband.
If this was not so then a person operating like the
accused could traffic with impunity even i f there was proof that he had
referred, in the same manner, numerous prospective customers to the same
vendor. I believe the judgment was too generous in respect to "reasonable
doubt" and may not be supported or followed by other members of the judiciary under similar circumstances.
It may be that the "passive" McDonald
parable is quite distinct from the "active" and eager response of the
accused.

*****

- 30 -

SPEEDING AND THE CHARTER

Harper v. The Queen, County Court of Vancouver Island #00610, May 1985
Criminal liability is subdivided into catagories. The most simplistic
summation of them is to say that they are: (a) offences requiring a
guilty mind (mens rea); (b) strict liability (due diligence or mistake
of fact may be a defence) or absolute liability. The latter is best
described as to say that when it happened, it happened and the doer is
liable.
Liability which has mens rea as a prerequisite is predominantly created by the Federal Parliament. Also by provincial offences
where the enactment creating them says that a person must do something
knowingly, wilfully, deliberately or with some like frame of mind.
Law that is regulatory in nature, particularly at the provincial
level, carries strict or absolute liability.
As the enactments are
not indicating the category of liability, absolute and strict
liability are sometimes difficult to distinguish from one another.
One of the most explanatory cases on these liabilities is R. v. City
of Sault St. Marie 40 C.C.C. (2d) 253.
An example may assist to explain the above.
In Ontario a truck
driver's regular truck went in the shop for work to the differential.
Somehow, due to error! the gear ratio of the truck was altered and it,
of course, affected the accuracy of the speedometer. On his first day
out with his repaired truck the driver received a speeding ticket. He
put up a defence of "mistake of fact", in that he believed his speedometer to be .:lcr.urate and it had indicated he -Was driving below the
speed limit.
If speeding is an offence of strict liability the
def P.nce he raised should have been available to him; if the offence
was one of absolute liability his sincere but mistaken belief in a
fact would not assist him. The Ontario courts held that speeding is
an offence of strict liability and the truck driver was acquitted.
Our B. C. Motor Vehicle Act creates a vicarious liability in section
76 by making the registered owner liable for offences committed with
his vehicle.
In one case* the question was raised if such liability
provision can withstand a Charter test.
The Courts helrl that it
could, as all offences that may be alleged by means of s. 76 M. V.A.
are strict liability offences.
The trial jud8e arrived at this
conclusion on account of the severity of the penalty. According to
the Offence Act the maximum vicarious liability is a fine of $2,000 or
6 months imprisonment.
In this case the accused had been riding a motorcycle and claimed that
the speedometer was 30 K.P.H. out after some repairs were made. The
provincial court judge had held that the accused had made out the
* R. v. Watch 24 M.V.R. 224

- 31 -

defence of "due diligence" if the offence of speeding is one of strict
liability. However, he held that it was one of absolute liability and
convicted the accused.
The accused appealed claiming that on the basis of the "watch"
decision and that of the Ontario courts, the offence of speedi.ne is
one of strict liability.
Firstly the County Court Judge decided that speeding is an offence of
absolute liability.
It is not tied to the Offence Act for penalty
(see s. 122.1(1) M.V.A.). Furthermore, as was held by the B. C. Court
of Appeal, absolute liability offences are not contrary to any Charter
provisions*
The County Court Judge agreed with the provincial court judge and
dismissed the accused's appeal but encouraged him to take the matter
to a higher court as he considered the matter to be ambiguous.

*****

*

Re s. 94(2) of M.V.A. (1983) 4 C.C.C. (3d) 243

- 32 -

POSSESSION OF WEAPON DANGEROUS TO THE PUBLIC PEACE
Regina v. Backman, B. C. Court of Appeal, CA 001655 - Vancouver
The accused had an "obtuse" argument with an acquaintance who was
standing on a balcony about 12 feet above the sidewalk from where the
accused broadcasted his version of the topic under discussion. At one
stage of the verbal dispute the accused told his acquaintance that he
had a pistol in his pocket. He did not show it, nor did he say he
would use it.
The man on the balcony interrupted the heated debate
went inside and alerted police about the accused and his pistol.
Consequently the accused was convicted of having in his possession a
weapon, or imitation thereof, for a purpose dangerous to the public
peace. He appealed this conviction.
The B. c. Court of Appeal observed that the accused's statement about
the pistol could, due to a lack of evidence supporting such finding,
not be considered to be premeditated. The pistol the police found on
the accused was a "cheap" starter pistol that was capable of firing
the caps which only cause a report. It then emphasized some points
made by . other courts which make it clear that section 85 C.C. does not
prohibit carrying a weapon other than for a purpose dangerous to the
public peace*.
Also that something that is quite legal to have
possession of may, because of sudden anger or annoyance, be used quite
unpremeditatedly as a weapon.
The lawful possession then does not
convert into an unlawful possession under this section. Concluded one
Court:
The formation of the unlawful purpose, which may be
inferred from the circumstances in which the weapon is
used, must precede its use. The interval of time between
the formation of the purpose and the us e of the weapon
need not be long. It may in some cases be very short, but
the gap must be significant.**
The B. C. Court of Appeal held that the accused telling his disputant
that he had a pistol was undoubtedly to scare the complainant, .who
. phoned police but then continued his argument. Creating an alarm in
the complainant (which he probably failed to do) was insufficient to
transform the innocuous possession of the starting pistol into a
possession contrary to s. 85 C.C.
Accused's appeal allowed, acquittal
entered.
Note:
*
**

One of the cases the Court of Appeal referred to was adjudged
R. v. Sulland (1983) 41 B.C.L.R. 167.
R. v. Flack (1968) 4 C.R.N.S. 121.

- 33 -

by the Ontario Court of Appeal in 1974 (R. v. Chomenko 18 C.C.C. (2d)
353).
The accused was on his way to a costume party. He was dressed up as a
member of the mafia and carried as part of his attire a cap pistol.
He was stopped for a traffic violation and while the officer wrote out
the ticket the accused had genuinely alarmed the officer by his
behaviour but particularly because he had pointed the replica of a
pistol (cap pistol) at the officer. The Ontario Court of Appeal had
not been satisfied that the purpose of the possession of the imitation
of a weapon had been for a purpose dangerous to the public peace. One
has to admit that the circumstances in the B. C. Bachman case are
considerably milder.

*****

- 34 -

TRICKERY - SHAM CHARGES TO GIVE APPEARANCE OF
LEGITAMACY TO CUSTODY OF AGENT PROVOCATEUR
Regina v. Clarke, 19 c.c.c. (3d) 106
Alberta Court of Appeal.
In the early seventies a fellow by the name of Pettipiece was arrested
for his involvement in an armed robbery that yielded considerable
proceeds to his cohorts who got away with those proceeds. To apprehend the rest of the group and recover the money, police officers
played the parts of judge and prosecutor.
At the conclusion of
Pettipiece's bogus first court appearance he was under the impression
he was released on bail and owed a bondsman (who was not going to let
Pettipiece out of his sight) fees for his services. Things worked out
as planned. When Pettipiece was tried he fought the admissibility of
what he had told the agent provocateur who shared the cell with him
prior to his sham court appearance and also what he told the so-called
bondsman during their search for his partners in crime for them to pay
the bond fees.
The B• .c. Court of Appeal decided in 1972* that they had no alternative but to hold that the statements were admissible. However, this
was not with much enthusiasm. To personate the judiciary was called a
bankruptcy of ideas and "a reprehensible police activity".
The Pettipiece case was decided in pre-Charter times.
The accused
Clarke in this Alberta case was tricked somewhat similarly. Although
this also happened in pre-Charter days, his trial was post-Charter.
The accused was arrested for murder and an agent provocateur was
placed in his cell. Clarke talked and the Crown adduced his statement
in evidence.
There would not likely have been any argument (the
practice is acceptable in Canada) had it not been for a sham court
procedure to give the appearance of legitimacy to the agent provocateur 's custody. Police had drafted an information and made the agent
appear before a Provincial Court Judge on a trumped-up charge.
The
Judge who was totally unaware that the charge was bogus, remanded the
agent in custody. As a consequence of this abuse of judicial process
the agent shared the accused's cell and obtained the statement which,
argued the defence, ought to be excluded under s. 24(2) of the
Charter.
This as the contemptuous judicial process violated the
principles of fundamental justice and infringed the accused's right
not to be deprived of his liberty other than by those principles.
"What happened to Pettipiece happened to me", said Clarke. It was in
the pre-Charter times considered a reprehensible practice, it is now,

*

R. v. Pettipiece 7 c.c.c. (2d) 133

- 35 -

since the Charter an outright infringement of one's right.
The Alberta Court of Appeal held that the police practice was
improper, but felt it did not need to decide i f Clarke's rights to
justice had been infringed by the phoney charge and Court appearance.
There simply was no causal link between that improper maneuver and the
statement the accused made to the agent. What happened to Clarke was
a far cry from what happened to Pettipiece. Pettipiece had personally
made a bogus court appearance, and was thereby made to believe that he
was out on bail.
The very misrepresentations that surrounded
Pettipiece 's "talking" were the promises for bail arrangements by the
agent and the so-called court appearance itself.
In Clarke's case
there was no causal connection between the agent's court appearance
and his statement to him. As a matter of fact Clarke was unaware of
the agent's Court appearance when he spoke to him. If the agent had
not appeared in court at all but had told the accused to have been
charged with "whatever", Clarke would, in the circumstances as they
were, not have known the difference.
Section 24(2) of the Charter,
our constitutional exclusionary rule, specifically states that the
infringement of a right or freedom must be the very means by which the
evidence considered for exclusion, was obtained.
Said the Court of Appeal:
the appearance was designed not to influence the
accused but rather to ensure that the trick not be
discovered by anyone".
Accused's appeal dismissed.

*****

- 36 -

CONTEMPT IN THE FACE OF THE COURT
CHARTER OF RIGHTS AND FREEDOMS
RIGHT TO A FAIR AND IMPARTIAL PROCEDURE
Regina v. Martin 19 C.C.C. (3d) 248
Ontario Court of Appeal
The accused switched the price tag on a tooth brush and was tried for
fraud under $200. She testified denying the allegation, but was not
believed.
Apparently a child of the accused could have testified for the
defence, but did not due to having a heart condition. The trial judge
had expressed gratitude that the child was not called.
When the
accused's counsel spoke to sentence the sick child was mentioned again
and the judge commented "tragic, tragic indeed".
The accused must
have assumed the remarks about her child to have been facetious or
expressing disbelief as she responded, "screaming" at the judge: "I've
(without any profanity) had it with your system". The judge ordered:
"Remove the accused". She responded: "I'd be delighted. My kid's got
a sick heart problem.
You sit there and feel good about it. It's
scandalous".
The next day the accused appeared again before the same judge and was
cited for contempt of Court.
The accused apologized; the Crown
entered a transcript of the outburst and without any further evidence
a conviction for contempt was registered.
The conviction was
appealed.
The Ontario Court of Appeal held that the proceedings in respect to
the contempt citation violated the accused's right to a fair trial by
an impartial judge ( ll(d) Charter).
The judge could reasonably be
seen as biased as the comments were directed at him.
Furthermore
another judge should have heard evidence of what the trial judge had
said and in what tone of voice to determine if the accused's outburst
in fact amounted to contempt.
When comments offend a judge, and reflects adversely on his/her
character or integrity, it amounts to contempt particularly i f they
are calculated to lower his or her authority. If such is the case,
another judge must determine i f there was contempt and impose the
penalty.
In cases where the actions amounting to apparent contempt
are not aimed personally at the presiding judge or where, in exceptional cases, the circumstances are such that to preserve the order of
the court demand immediate action then "limitations on such rights,
particularly with respect to time, may be justified."

- 37 -

In this case the judge should not have dealt with the alleged contempt
as he did. He was personally offended, there was no urgency and the
accused had a right to a fair trial by an impartial judge.
Accused's appeal allowed.
Acquittal entered.

*****

- 38 -

LEGAL TID-BITS
After a heated argument with his mother, the accused took the family
car and collided with another car. He failed to stop and was later
apprehended sitting behind the wheel of the car, parked, and with the
radiator steaming. He was charged under the Young Offenders Act with
Hit & Run under the Criminal Code. The Crown proved everything except
that the accused left the scene with the intent to escape civil or
criminal liability.
It depended on the statutory presumption in
section 233 C.C. which states that leaving the scene is presumed to be
done to escape liability unless there is evidence to the contrary.
The trial judge held that this presumption was of no force or effect
as it violated the presumption of innocence as enshrined by the
Charter and he acquitted the accused.
The Nova Scotia Court of Appeal disagreed and held that the presumption is rational and that it does not violate our constitution.
R. v. T. 18 C.C.C. (3d) 125.

*****
The 42 year old accused picked up a 15 year old female hitch-hiker.
Under the pretence that he had to drop something off he left the highway and eventually drove into a park where he parked and began hugging
his passenger. She managed to get the door open and fall out of the
car. The accused came after her and started again to hug her while he
told her not "to freak out" as he would not harm her. She once again
got away but he grabbed her and hugged her. The girl was very upset
and started to walk away. The accused apologized and drove the girl
to her destination. She occupied the back seat for that portion of
the trip. The whole hugging and grabbing episode had lasted approximately 2 1/2 minutes. The accused was acquitted of unlawful confinement (s. 247(2) C.C.) and the Crown appealed.
The B. C. Court of
Appeal held unanimously that the confinement was the wrong charge in
the circumstances and it was not prepared to rule that "for a male to
hug a female amounts to the criminal offence of confinement, without
more".
There simply was no confinement within the terms of the
Criminal Code.
Crown's appeal dismissed.
R. v. Calvin 14 C.C.C. (3) 510.

*****

- 39 -

The accused and his friend separated while inside a drugstore. The
friend took a bottle of lotion and put it in his pocket.
He was
followed out of the store as he had failed to pay for the lotion. The
two met on the parking lot where the friend showed the bottle of
lotion to the accused and told him that he stole it.
He handed i t
over to the accused who, along with the friend, was arrested approximately 5 seconds after he got to be in possession of the lotion. A
store detective had observed the whole process. The accused appealed
his conviction of possession of stolen property. To be in possession
one must have knowledge and control. The 5 seconds were found insufficient time to show that the accused accepted the control and he was
acquitted.
Regina v. Thompson, County Court of Vancouver, Vancouver c.c. 841970

*****

Section· 15 of the Charter became effective April 17, 1985. It deals
with equality "before and under the law".
A man came before the
B. C. Supreme Court to be tried by means of direct indictment ordered
by the Attorney General under s. 507(3) C.C.
In view that he was
singled out to be deprived of the benefit of a preliminary hearing, he
claimed that he had not received equal treatment under the law. At
the outset of his trial he moved that the indictment be quashed as s.
507(3) C.C. is inconsistent with s. 15 of the Charter. The Supreme
Court declined to accede and held that there are several different
modes of trial described and provided for in our laws. Uniformity is
not necessarily synonymous with equality. s. 507(3) simply provides
an optional mode of trial at the selection of one of the parties to
the proceedings.
Regina v. Flight, Westminster registry X015092.

*****