POLICE ACADEMY

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

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

IN MEMORIAL
On September 15, 2002, 31year-old
Richmond
(B.C.)
RCMP Constable Jimmy Ng
was on a routine call
proceeding through a green
light when a Honda Civic
travelling at an extremely
high rate of speed ran the red light striking the police
car in the driver's door. Cst. Ng was extricated,
treated, and transported by paramedics to hospital
where he was pronounced dead. The suspect fled the
scene and turned himself in at
Richmond Hospital some hours later
with his lawyer. Constable Ng was a 6
year veteran of the RCMP. He is
survived by his parents.
On August 21, 2002, 41-year-old South Simcoe Police
Service (Ontario) Constable Alan Kuzmich was on duty
and investigating an incident involving a stolen
motorcycle in the Town of Bradford, Ontario when he
was struck by a motor vehicle and
killed instantly. Constable Kuzmich
had served as a police officer for 19
years and is survived by his wife,
Joanne and two children.
The above information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/canada

CONSENT ENTRY WAIVES
PRIVACY INTEREST: FEENEY
ISSUES NOT ENGAGED
R. v. C.K., 2002 MPBC 10019
The police attended the accused’s
residence to arrest him for the
armed robbery of a gas station, but
did not know whether they would
find him there.
The door was
answered by the accused’s mother and the police

informed her that they were there to arrest her son
for the robbery. The police were directed downstairs
by the mother and told to wake up “the lazy bum”. The
police entered the residence and were escorted to a
basement bedroom by the mother who pointed to a
male in bed. The accused was woken up and arrested
without a warrant for the robbery. The accused was
provided the usual warnings, declined to contact
counsel at that time, was handcuffed, and subsequently
transported to the police station.
During a voire dire, the accused unsuccessfully
attempted to have his subsequent statements ruled
inadmissible, in part, by the warrantless entry and inhome arrest made by the police. Manitoba Provincial
Court Justice Pullan found that the police were invited
into the residence by the accused’s mother. The police
were wearing clearly identifiable jackets and made
their purpose (arrest) well known to the accused’s
mother before entering the home. Although the police
did not request entry, she invited them, escorted them
through the house, and told them to wake him. Her
consent was informed and she “made a reasoned choice
to invite police into her residence to arrest her son”.
Thus, the entry was lawful and the issues arising from
the Feeney1 case were not engaged.
Complete case available at www.canlii.org

DISCREPENCY BETWEEN NOTES
& TESTIMONY DOES NOT
WARRANT NEW TRIAL
R. v. Swearengen,
(2002) Docket:C35558 (OntCA)
The accused was convicted of sexual
assault at trial, but had the
conviction overturned on appeal by
the Ontario Superior Court of
Justice and a new trial was ordered. The Crown’s case
was dependent on the victim’s version of the assault
while the accused’s case was dependent on his denial of

1

Volume 2 Issue 9
September 2002

[1997] 2 S.C.R. 13

it. The appeal court justice found that the victim’s
“testimony at trial contained several material
assertions that were not contained in the notes a police
officer made of a statement made by the [victim]
immediately after the alleged assault”. The
discrepancies between the notes and the testimony on
material matters was sufficient to require a new trial
since findings of credibility may well have been
different had the victim been properly cross examined
on her previous statement. The Crown appealed to the
Ontario Court of Appeal which set aside the order for
a new trial. In restoring the conviction, Justice
Catzman for the unanimous appeal court held:

attempts resulted in an insufficient sample reading and
lack of an audible tone, which is normally emitted when
air is received into the device. The officer removed the
mouthpiece and had the accused blow into it without
difficulty. The mouthpiece was placed back onto the
device and a further three attempts again resulted in
an insufficient sample being provided. After the sixth
attempt, the officer informed the accused it was a
criminal offence to fail or refuse to provide a breath
sample, he would receive a 90-day licence suspension if
he failed to provide a sample, and that his vehicle would
be towed. When asked if he understood the
consequences, the accused responded, “Yes”.

In our view, the mere fact that the notes taken by the
police officer of the complainant’s initial statement are
different in material respects from the complainant’s
testimony does not, standing alone, warrant a new trial.
Differences between the statement and the testimony
do not, in and of themselves, provide a basis for the
reassessment of the [accused’s] credibility. The effect,
if any, of the notes on the complainant’s credibility would
depend on many factors, including for example, the
nature of the notes and the complainant’s response to any
alleged inconsistency. None of these factors were
explored on the summary conviction appeal.

A seventh, eighth, and ninth test also resulted in an
insufficient sample reading. The officer again
demonstrated how to provide a sample and informed
the accused that the tenth test would be his last. The
accused again provided an unsuitable sample. Despite
telling the accused he could provide no further tests,
the officer administered an eleventh and twelfth test,
also resulting in an insufficient sample. A thirteenth
test was subsequently administered by another police
officer using a different approved screening device,
but again an insufficient sample reading resulted. After
the thirteen opportunities to comply with the demand
over a 29-minute period on two separate approved
devices, the officer concluded that the accused had
been provided ample opportunity to comply, terminated
testing, and arrested him for failing to provide a
breath sample. After the arrest, the accused then
asked for a further opportunity to provide a sample.

Complete case available at www.ontariocourts.on.ca

OPPORTUNITY TO PROVIDE
BREATH SAMPLE AFTER ARREST
NOT NECESSARY
R. v. Tavangari,
[2002] O.J. No. 3173 (OntCJ)
A police officer, who stopped the
accused driving, detected a strong
liquor odour on his breath and
observed that his eyes were
“glassy”. As a consequence, the
officer formed the suspicion that the accused was
operating a motor vehicle with alcohol in his body and
made a demand under s.254(5) of the Criminal Code
that he provide a breath sample into an approved
screening device. The device had been tested and found
to be working by the officer at the commencement of
his shift and again at the roadside in the presence of
the accused.
A new mouthpiece, checked by the officer for
obstructions, was used. Even though the accused’s
cheeks were puffed out with air, the first three

Volume 2 Issue 9
September 2002

At trial the accused argued, “once a person has been
arrested the police are required to provide a further
opportunity [to provide a suitable sample] on request…
regardless of the circumstances”. In rejecting the
accused’s submission, Justice Kenkel of the Ontario
Court of Justice found that the determination of
whether a person has failed or refused to comply with
a screening device demand will involve an examination of
“all of the circumstances of the entire transaction
between the police officer and the accused”. Although
there may be cases where a subsequent post-arrest
offer to comply with a demand may not amount to a
failure or refusal to provide a sample, this was not one
such case.
Here, the officer made “exhaustive
efforts” to obtain a sample and a fourteenth test was
not required as “there was no reasonable prospect that
the accused would provide a suitable sample”. Justice
Kenkel held:

2

The accused had been warned in a very detailed way
after the 6th test that failure to provide a suitable
sample was a criminal offence. He was warned at that
time in detail of the consequences of the failing to
provide a suitable sample, including the administrative
licence suspension and the towing of his car. Knowing this
the accused failed 7 more times to provide a proper
sample. Three of the final tests were administered after
the accused was warned on the 10th test that there
would be no further tests. The only inference available on
the evidence before me is that the failures to provide a
sample were deliberate and that [the accused] had no
intention of providing a suitable sample despite his
statements to the contrary.

As a result, the accused was convicted of refusing or
wilfully failing to provide a breath sample.

THREAT REQUIRES EXPRESS or
IMPLICIT REFERENCE TO
DEATH or BODILY HARM
R. v. Abdallah, 2002 ABPC 126
The accused was charged with
uttering threats to cause death or
bodily harm under s.264.1(1)(a) of
the Criminal Code arising from an
incident where he was driving a
vehicle stopped at an intersection, stuck his head out
the window and yelled at the female victim, “Fucking
bitch. I’m going to get you back for ratting me out”.
The victim had previously provided a statement to the
police alleging the accused had committed criminal
offences. Although she was not afraid nor take the
threat seriously, the victim pretended to call the police
on her cell phone. Section 264.1(1)(a) of the Criminal
Code reads as follows:
Every one commits an offence who, in any manner,
knowingly utters, conveys or causes any person to
receive a threat (a) to cause death or bodily harm to
any person; …
Bodily harm is defined in s.2 of the Code as “any hurt
or injury to a person that interferes with the health or
comfort of the person and that is more than merely
transient or trifling in nature”.

taken seriously. In determining whether the words
constitute a threat, the court must look at them
objectively taking into account the circumstances and
manner in which they were uttered as well as the
person to whom they were spoken. Words spoken in
jest or in a manner in which they could not be taken
seriously would not be a threat, since they could not
lead a reasonable person to conclude they were meant
to intimidate or to be taken seriously. Two questions
arose at trial:
1.

Is it necessary that the victim take the threat
seriously? and

2.

Did the words uttered constitute a threat to cause
death or bodily harm as required in s.264.1(1)(a) of
the Criminal Code?

Must the threat be taken seriously?
Following a review of the case law, Justice Semenuk of
the Alberta Provincial Court concluded that it was
“unnecessary for the complainant to take the threat
seriously” or even that they appreciated that they were
being threatened. All that is required is “that the
accused meant the threat to intimidate or be taken
seriously”. There is no requirement that the threat did
in fact intimidate or that it was taken seriously.

Did the words imply bodily harm?
Although Justice Semenuk found the words uttered by
the accused were meant to be taken as a threat, there
was no explicit threat to cause death or bodily harm. In
such cases where “the threat is not express the Court
is left to draw an inference by necessary implication
from the words used and all the surrounding
circumstances as to whether it constitutes a threat to
cause death or bodily harm”. In the Court’s view, the
words uttered by the accused in this case were
ambiguous and did not necessarily refer to death or
bodily harm. Notwithstanding that the Court found the
words used were meant to intimidate or be taken
seriously, there was a reasonable doubt as to whether
the threat implied death or bodily harm. As a
consequence, the accused was acquitted.
Complete case available at www.albertacourts.ab.ca

The actus reus of threatening is the uttering of the
threat to cause death or bodily harm while the mens
rea is whether the words spoken as a threat, to the
reasonable person, were meant to intimidate or be

Volume 2 Issue 9
September 2002

3

TRANSIT BUS DISTURBANCE
CRIMINAL
R. v. Mudarth, 2002 ABCA 176
A police officer gave evidence at
trial that as he approached an
Edmonton transit bus and when he
was inside it, he heard the accused,
who was very upset, swearing and
shouting at a transit employee. The officer testified
that there were about 20 people on the bus who
became “very interested” in what was occurring and
supported his action in having the accused leave the
bus. The officer offered to drive the accused
wherever she wanted to go, but she refused. Since the
accused refused to leave the bus and the police were
concerned with her conduct, the transit passengers
were transferred to another bus and the accused was
arrested and removed. The accused was convicted of
causing a disturbance under s.175(1)(a)(i) of the
Criminal Code and her application to appeal to the
Alberta Court of Queen’s Bench was dismissed. The
accused further applied for leave to appeal to the
Alberta Court of Appeal arguing that the trial judge
erred in finding that a there was a disturbance and
that it occurred in a “public place”.
Section 175(1)(a)(ii) creates an offence for a person
“who (a) not being in a dwelling-house, causes a
disturbance in or near a public place, (i) by fighting,
screaming, shouting, swearing, singing, or using insulting
or obscene language”. Furthermore, s.175(2) allows the
court to “infer that a disturbance was caused or
occurred from the evidence of a peace officer”. The
legal test for determining whether conduct amounts to
a disturbance was settled by the Supreme Court of
Canada in R. v. Lohnes [1992] 1 S.C.R. 167:
...the disturbance contemplated by s. 175(1)(a) is
something more than mere emotional upset. There must
be an externally manifested disturbance of the public
peace, in the sense of interference with the ordinary and
customary use of the premises by the public. There may
be direct evidence of such an effect or interference, or
it may be inferred from the evidence of a police officer
as to the conduct of a person or persons under s. 175(2).
The disturbance may consist of the impugned act itself,
as in the case of a fight interfering with the peaceful use
of a barroom, or it may flow as a consequence of the
impugned act, as where shouting and swearing produce a
scuffle. As the cases illustrate, the interference with
the ordinary and customary conduct in or near the public

Volume 2 Issue 9
September 2002

place may consist in something as small as being
distracted from one's work. But it must be present and it
must be externally manifested. In accordance with the
principle of legality, the disturbance must be one which
may reasonably have been foreseen in the particular
circumstances of time and place.

In this case, the evidence of the police “established
that the accused was swearing, using obscene language
and shouting and that there were members of the
public who heard it, reacted to it, and eventually were
inconvenienced as a result of the [accused’s] conduct”.
This fell within the definition set out in Lohnes.
Section 175 also requires that the disturbance occurs
“in or near a public place”. A “public place” is defined in
s.150 of the Code as including “any place to which the
public have access as of right or by invitation, express
or implied”. Justice Picard of the Alberta Court of
Appeal found “no error in the trial judge concluding
that the ETS bus fell within s.175”. The application for
leave to appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

TO SERVE & PROTECT: A
FRAMEWORK FOR LEADERSHIP
Sgt. Mike Novakowski
“The measure of a person is not the number of servants
they have, but the number of people they serve”.
Author unknown

Introduction
The expression “to serve and protect” is a motto used
by law enforcement agencies throughout North
America. This motto, which not only reflects a police
ideology, can also be used as a framework for
leadership and provide a foundation from which an
authentic
leader
can
derive
the
necessary
underpinnings to be effective. As can be inferred from
the maxim, this philosophy of leadership is rooted in
two concepts; serving (those you lead) and protecting
(the integrity of the leader/follower relationship).

LEADING BY SERVING
The “leading by
serving” principle
is underscored by
asking the simple
question, “How can
I best serve those

There are two types of leaders in the
world today: those who are interested
in the fleece, and those who are
interested in the flock.
Author unknown

4

around me?” However, this enquiry must be genuine, and
not a Machiavellian approach; fraudulently expressing
interest knowing it may be received by the follower as
authentic. To best serve the follower, a leader must
serve the needs of the ones they lead while at the
same time also serve by setting an example.

Serving the Needs of the Follower
By definition, the terms “lead” and “serve” (or follow)
pose a paradox. How can one lead or determine
direction but also follow? Quite simply, the role of the
leader is not to impose their own will on others, but to
remove the obstacles that block the group’s way in
achieving the group’s goal. Thus the leader of the
group, through facilitation, serves its members in their
march forward. Michael Stanley described this servant
leadership philosophy as “working your way to the
bottom”2. He suggests that the traditional management
pyramid be inverted; the leader at the bottom and the
follower at the top. Thus the leader is now in a
supportive role, to serve those responsible on the front
line.
Leading by serving
He who wishes to lead the people
is janitorial, or a
must walk as if behind them.
behind the scenes
Verse 66, Tao Te Ching
style
of
leadership. It is
choosing service over self-interest. The proponents of
servant leadership argue that the leader’s role is to
determine the will of the group and provide the support
to advance that will, while the critics maintain that
most followers want a leader “with a plan”; to set the
direction3. However, through serving, the leader
harvests the respect, trust, and confidence of their
followers. When the time comes to make an unpopular
or tough decision, the leader will have the support and
respect of the group.
Each member of a group has individual personal needs.
The leader, in recognizing this, selflessly serves the
group’s needs, which are given priority over the leader’s
own. This does not prevent the leader from benefiting
as a result of their own action, but by yielding to the
group and putting the group’s well being above their
own, the leader will also benefit. Serving the needs of

2

Stanley, Michael F. (1995). Servant leadership in the fire service; It’s never
lonely at the top when you’re leading from the bottom. Fire Engineering, Vol, 148
Issue 8, p.30.
3
Kiechel III, W. & Rosenthal, M. (1992). The Leader as Servant. Fortune, Vol. 125
Issue 9, p.121

Volume 2 Issue 9
September 2002

others before one’s own is serving oneself4 and true
benefit blesses everyone, including the leader5. Thus,
“enlightened leadership is service, not selfishness”6.

Serving by Role Modelling
A key to serving one’s followers is providing a model
that the followers can look up to. The espoused values
of the leader must be demonstrated through practice
and by exhibiting high standards for followers. In the
words of leadership guru Warren Bennis7, leadership is
“character in action”. In the same vein, James O’toole8
quotes popular Girl Scouts leader Frances Hesselbein
whose comments are apposite:
[L]eadership is basically a matter of how to be, not how
to do it. Leaders need to lead by example, with clear,
consistent messages, with values that are ‘moral
compasses’, and a sense of ethics that works full time
(p.40)

Author Perry Smith9 suggests that individuals within an
organization will observe whether the leader is
committed to what they value. Not only must the leader
talk the talk, they must also walk the talk. The leader
must act consistently with their values or their
followers will not take them seriously10. To this end,
leaders must be able to correlate vision and behaviour
with values and “do the right thing in a moment of
truth”11. This congruity between value centredness and
high standards of emulation is a cornerstone of
leadership. Stephen Covey12 asserts that modelling
(living your principles) is the foundation from which
people come to believe in their leader. From this,
relationships are built (mentoring) eventually leading to
followers perpetuating the system and cultivating other
leader/follower structures. The leader has thus
started a cycle that continues among the followers who
become leaders within their own circles of influence.

Secretan, Lance. (2000). Honey or Vinegar. Industry Week, Vol. 249 Issue 12,
p.23.
5
Heider, John. (1985). The Tao of Leadership. Los Angeles, Ca.: Humanics Ltd.
6
Spears, Larry. (1995). Reflections on Leadership: How Robert K. Greenleaf’s
Theory of Servant Leadership Influenced Today’s Top Management Thinkers.
Toronto, Ont.: John Wiley & Sons, Inc.
7
Bennis, Warren. (1999). Old Dogs, New Tricks. Provo, Utah: Executive Excellence
8
O’Toole, James. (1995). Leading Change: Overcoming the Ideology of Comfort and
the Tyranny of Custom. San Francisco, Calif.: Jossey-Bass Inc.
9
Smith, Perry. (1998). Rules and Tools for Leaders: How to Run an Organization
Successfully. Garden City Park, N.Y.: Avery Publishing Group
10
Nanus, Bert (1989). The Leader’s Edge. Chicago, Ill.: Contemporary Books, Inc.
11
Bennis, Warren. (1999). Old Dogs, New Tricks. Provo, Utah: Executive Excellence
12
Covey, Stephen. (1991). The Seven Habits of Highly Effective Families. New
York, N.Y.: Simon & Schuster Inc.
4

5

LEADING BY PROTECTING
Leaders not only
To determine the value of a
need to serve their
leader,
you must look at who’s
followers but must
doing
the following.
also protect the
Author unknown
integrity
of
the
leader/follower arrangement.
Every system of
leadership has three key stakeholders; the follower,
the leader, and the relationship. The system could be
an organization, a family, or a team. To protect or
safeguard this system, a leader must protect the
shared values that the system stands for, protect the
individuals within that system, and protect the
relationship between the leader and the follower.

Protecting Shared Values
The idea of protecting values as a basis for leadership
has been challenged. The detractors of this theory
argue that it is simply a pleasant, but unrealistic,
concept. They claim that in the name of inclusion and
mutual respect, organizational decision-making is
delegated to the will of the many, destroying discipline
and organizational effectiveness in the process13.
However, at its nucleus, value based leadership
advocates the commitment of individuals to their
deeply held values that in turn acts as a compass to
guide decision-making. Using this metaphor, there is
only one true north; doing the right thing.
Values keep people focussed, direct them on long-term
vision, and guide their choices when there is conflict14.
Values such as respect, integrity, fairness, and honesty
become the pillars for the organization. In turn, these
values form the basis for a shared vision. James Kouzes
and Barry Posner15 recognize that leaders must enlist
others in a common vision by appealing to their values.
Within the organization, these values “coalesce into a
prevailing ideology that guides the organization’s
behaviour”16. This ideology, or vision, creates a “focus
on the identity of the organization, which when clearly
communicated to every employee, helps orient teammember decision making and activity”17. Margaret
Wheatley uses the U.S. Army Special Forces as a
O’Toole, James. (1995). Leading Change: Overcoming the Ideology of Comfort and
the Tyranny of Custom. San Francisco, Calif.: Jossey-Bass Inc.
14
Kouzes, James. (1995). Achieving Credibility: The Key to Effective Leadership.
New York, N.Y.: Simon and Schuster Inc.
15
Kouzes, James M. and Posner, Barry Z. (1995). The Leadership Challenge. San
Franscisco, Calif.: Jossey- Bass Inc.
16
Nanus, Bert (1989). The Leader’s Edge. Chicago, Ill.: Contemporary Books, Inc.,
p.64.
17
Wheatley, Margaret (1995). Margaret Wheatley’s Lessons From a Workplace.
CRM Films.

powerful example where the vision of the organization
guides quick decisions where access to commanders is
impossible and appropriate choices of action must be
made in a moments notice.
Thus, an organization that leads by values has only one
boss; the values18. The result is an organizational
environment with committed employees guided by
established moral and ethical values. Although some
argue that value based leadership is weak and
ineffective, its strength lies in protecting the internal
integrity of the organization fostered by an
atmosphere of mutual respect and collaboration.

Protecting the Follower
A leader must protect the uniqueness of the follower.
Followers must be viewed as individuals with their own
hopes and dreams and must not be used as the means to
justify the ends. Leaders must strengthen their
followers by empowering them, providing choice,
developing competence, and offering visible support19.
In addition, the leader must not allow the follower to
go below their personal bottom line. Just as the leader
must demonstrate character and the courage of their
convictions, the leader must protect the follower by
not allowing the follower to compromise the shared
organizational values.

Protecting the Relationship
Early theories of leadership focussed on personal traits
and behaviour patterns of leaders. Today, the focus is
on the interactions, or relationships, between the
leader and their followers. Effective leadership
requires the inclusion of all individuals; it is a dialogue,
not a monologue20. An authentic leader “treats each
follower as an individual and provides coaching,
mentoring and growth opportunities”21. In this vein,
leadership requires open communication and trust with
employees. The effective leader focuses on people,
ensuring they have adequate resources to fulfil their
targets. They encourage openness to diverse points of
view and solicit valid feedback from as many sources as

13

Volume 2 Issue 9
September 2002

Blanchard, Ken and O’Connor, Michael. (1997). Managing By Values. San Francisco,
Calif.: Berrett-Koehler Publishers
19
Kouzes, James. (1995). Achieving Credibility: The Key to Effective Leadership.
New York, N.Y.: Simon and Schuster Inc.
20
Kouzes, James. (1995). Achieving Credibility: The Key to Effective Leadership.
New York, N.Y.: Simon and Schuster Inc.
21
Bass, Bernard M.; Steidlmeier, Paul (1999). Ethics, Character, and Authentic
Transformational Leadership Behaviour. Leadership Quarterly, Summer99, Vol 10,
Issue 2, p181.
18

6

possible22. It is through this process that a shared
sense of community develops and followers are
provided and enjoy the opportunity to make a worthy
contribution to the organization23.

Conclusion
The challenge of a leader is to balance the act of
serving with the act of protecting. Although serving
may carry the connotation of submission, and
conversely, protecting carries the connotation of
dominance, the task of the leader is to engage in both
activities to the appropriate degree. Leading by serving
is not acting as a “doormat”, but requires courage,
commitment, and character in meeting the followers’
needs. Protecting is not about exercising authoritative
control, but involves collaboration, mutual respect, and
shielding the integrity of the relationship. Between this
paradox of serving and protecting lies an effective
leader.

NO PRIVACY IN EMPLOYMENT
RECORDS PROVIDED TO SOCIAL
ASSISTANCE AGENCY
R. v. D’Amour,
(2002) Docket: C35927 (OntCA)
The accused, who was unemployed,
applied for and received social
assistance under Ontario’s General
Welfare Assistance Act. Shortly
thereafter, she commenced and
continued employment for the next two years without
reporting her earnings to the Community Services
Department (CSD). Had she reported this income, she
would have had her benefits reduced. A caseworker
with the CSD, who had received information that the
accused had not reported her income, requested that
she produce her T4 slips for the previous three years
or her benefits would be withheld until she complied
with the request. The T4 slips were provided to the
CSD worker and it was determined that the accused
had received her benefit cheques without reporting
income. The matter was referred to the police for
criminal prosecution along with copies of her T4 slips
and other documentation. The police charged the
Bennis, Warren and Townsend, Robert. (1991). Reinventing Leadership:
Strategies to Empower Organization. New York, N.Y.: Simon and Schuster Inc.
23
O’Toole, James. (1995). Leading Change: Overcoming the Ideology of Comfort
and the Tyranny of Custom. San Francisco, Calif.: Jossey-Bass Inc.
22

Volume 2 Issue 9
September 2002

accused with fraud and issued subpoenas for the
original documentation from their various sources. She
was convicted at trial.
The accused appealed to the Ontario Court of Appeal
arguing that her Charter rights under s.7 (self
incrimination) and s.8 (search and seizure) had been
violated because of the manner in which the
documentation was obtained and that the evidence
should be excluded under s.24(2). Although she
accepted that the CSD could require her to produce
income and employment information as a condition to
receiving benefits and could also use that information
for regulatory purposes, she contended that the Crown
could not use the information in the criminal trial
process. Although the Crown used original documents at
trial, these originals would not have been subpoenaed
but for the information contained in the copies she
provided to CSD.

Self Incrimination
Section 7 of the Charter protects a person’s right not
to be forced to assist the state in proving its case
against them. Entrenched within this protection is the
right of the individual to choose whether or not to cooperate with the state. If a person chooses not to
assist the state, they must be left alone. For example,
where a person provides a compelled statement (either
oral or written), that statement is conscripted and it,
and any evidence derived from it, are equally protected.
However, “documents that exist prior to, and
independent of, any state compulsion do not…constitute
evidence “created” by the person required to produce
those documents. With certain narrow exceptions,
neither the compelled production of such documents,
nor the subsequent use in a criminal proceeding of such
documents, attracts the protection of the principle
against self-incrimination”. In rejecting the s.7 claim,
Justice Doherty for the unanimous Court held:
The T4 slips produced to [CSD] by the [accused] were
created prior to, and entirely independent of, any
compulsion that the Department may have exerted upon
the appellant to produce those documents. The [accused]
was not under any statutory compulsion to create, or even
keep, the T4 slips. Indeed, the [accused] did not create
the T4 slips but received a copy from her employer. Even
if it could be said that the state compelled the [accused]
to produce the T4 slips, the T4 slips did not constitute
evidence created by or emanating from the [accused]. The
T4 slips existed entirely independent of the appellant.
Production of them to the Department did not constitute
self-incrimination. The subsequent use of the T4 slips also
did not implicate the principle against self-incrimination.

7

The prosecution did not seek to use possession of the T4
slips by the [accused] for any communicative purpose, such
as to prove knowledge or to imply an admission against
interest.
The documents spoke for themselves and
constituted evidence of employment income.

Search and Seizure
Section 8 of the Charter protects a person’s
reasonable expectation of privacy. In this case, the
accused recognized that she did not have a reasonable
expectation of privacy if the T4 slips were only used
for determining her benefit eligibility or to prosecute
her for breaches of the provincial statute. However,
she argued that once the police obtained the
documents an unreasonable seizure occurred because
she had a reasonable expectation that the documents
would not be given to the police in furtherance of a
criminal prosecution. Even though in some cases the
difference between regulatory enforcement and the
criminal process has constitutional consequences, in
this case the reasonable person could not expect that
the documents provided to CSD would not be used in
criminal proceedings involving the fraudulent receipt of
benefits. Where the prosecution took place, either in
provincial offences court or criminal court, made no
difference in whether the person would have a
reasonable expectation of privacy. The nature of the
state conduct did not change; it was the same
allegation (fraudulent receipt of benefits) but to
different degrees (criminal v. provincial). Since the
accused did not have a reasonable expectation of
privacy, s.8 was not engaged and the evidence was
admissible. Her appeal from conviction was dismissed.

SEARCH OF PRISONER’s MAIL
REASONABLE: NO
EXPECTATION OF PRIVACY
R. v. Lamirande & Guimond,
2002 MBCA 41
The accused Lamirande and Guimond
were arrested, along with others,
and charged with the murder of a
store employee during the course of
a robbery. Lamirande appealed her
manslaughter conviction arguing, in part, that her right
to be free from unreasonable search and seizure had
been violated when the police examined her documents
when she was admitted to a correctional institution.
Guimond appealed, among other grounds, that his right
to silence had been violated when the police persisted
in questioning him after he told them he did not wish to
speak and for not being told the interview was being
video recorded.

Search and Seizure (Lamirande)

POLICE ACADEMY INSTRUCTOR
TOP COP AT SHOOTING
COMPETITION

Lamirande was lodged by the police at a remand centre
and was then transferred by correctional authorities to
a correctional institution. Upon admission to the
correctional institution, her personal property was
searched including her mail, which was opened. The
Crown argued that some of the documents, which were
notes and poetry, contained references confirming that
the accused was associated to an aboriginal street gang
(the Indian Posse) and provided statements from which
a jury could draw inferences she had knowledge of the
robbery. The accused was convicted at trial, but
appealed to the Manitoba Court of Appeal arguing that
the search of her mail violated her right to be secure
from unreasonable state intrusion, a protected right
under s.8 of the Charter.

The
British
Columbia
PPC
Provincial Championship Shooting
Tournament was held at the Port
Coquitlam and District Hunting
and Fishing Club range during the August long weekend.
RCMP Sgt. Steve Wade, firearms instructor at the
Police Academy, was one of the many competitors. Sgt.
Wade came in first place in the Distinguished Master
classification of the Duty Pistol event and was the top
Police Officer in the Duty Pistol class of the
tournament.

Although Lamirande was an incarcerated prisoner and
agreed that a search for weapons or contraband was
valid, she argued that the documents were private and
she maintained a reasonable expectation of privacy in
them. This, it was suggested, prevented the authorities
from reading them. On the other hand, the Crown
asserted that Lamirande had a gang association and the
province of Manitoba not only had an extensive
contraband and search policy created pursuant to the
provincial Corrections Act, but also an institutional
Gang Management Strategy which prohibited the

Complete case available at www.ontariocourts.on.ca

Volume 2 Issue 9
September 2002

8

possession of gang paraphernalia in any form, including
“poems or documents evidencing gang involvement or
activities”.
Furthermore, the Crown submitted,
correctional facilities have an interest in safety and
security and the power to search, inspect, and read
documents flowed naturally from this objective. In
addition, the Crown asserted that the accused was
aware of the search procedures from a previous matter
where she entered the correctional institution and that
she knew any document in her possession would be
seized and read. Thus, it was argued, the accused did
not have a reasonable expectation of privacy.
The right to be secure against unreasonable search and
seizure is only triggered when a person can
demonstrate they had a reasonable expectation of
privacy. In determining whether a person has a
reasonable expectation of privacy, the court must use a
“’totality’ of circumstances through a ‘multi-factor
analysis’”. Chief Justice Scott, for the unanimous
Manitoba Court of Appeal, agreed with the trial judge
that “there was no expectation of privacy given the
inherent nature of a prison facility and the documents
themselves”. The “relationship between the parties (jail
keeper and accused), the place where the information
was obtained (prison), the manner in which it was
obtained (a search upon admission), and the seriousness
of the crime (manslaughter)” formed the context
against which the expectation was to be assessed.
Without an expectation of privacy, s.8 was not engaged
and this ground of appeal was dismissed.

Right to Silence (Guimond)
Following the accused Guimond’s arrest, two separate
teams of police officers interviewed him. Although the
interview was videotaped, the police did not specifically
advise him of this despite standard police policy to
seek permission from the detainee before videotaping.
Guimond argued that the police violated his right to
silence by tricking him into talking, since he did not
know the interview was being recorded. He submitted
that the police told him the statement would be taken
down in writing and deliberately lulled him into a false
sense of security by leaving their notebooks outside
the room knowing the interview was being recorded.
Furthermore, he asserted that the police continued to
question him despite his desire not to speak which was
communicated to the police several times. The trial
judge concluded that the error in not informing the
accused of the recording was inadvertent, that he was
fully aware the interview was being videotaped (the

Volume 2 Issue 9
September 2002

camera was in plain view), and that the statements were
not induced by the police. Thus, the interview was
admitted into evidence.
The right to silence entrenched in s.7 of the Charter
protects a person’s right in making a meaningful choice
as to whether to speak to the police or not. Guimond
was told on arrest of both his right to counsel under
s.10(b) as well as that he was “not bound to say
anything”. In rejecting this portion of his argument,
Chief Justice Scott stated:
Guimond’s fundamental right to make a free and
meaningful choice whether to speak or remain silent was
not violated. He was fully informed, and chose to speak to
two teams of police officers at length about the facts
surrounding the robbery. He could not have believed for
an instant that his responses to the police officers were
off the record or that no record of the conversation was
being or could be made. Whether in the end the
conversation was recorded, or written down by hand, or
notes were made later, Guimond was well aware that he
was speaking “on the record”. There is no air of reality in
the assertion that Guimond was somehow misled by the
police when he was told that anything he said will “be
taken down in writing and used as evidence”. He knew he
did not have to speak to the police.

The Manitoba Court of Appeal also upheld the trial
judge’s finding that the accused’s statement was
voluntary. Although police trickery may in some
situations neither violate the right to silence nor
undermine voluntariness, it may, if it shocks the
community, render a statement inadmissible. However,
this case was not such a case. The Court stated:
Even if the police conduct had been deliberate in failing
to advise Guimond of the fact his testimony was being
videotaped, he was fully aware of his right to remain
silent and chose not to do so. This is not a case…where
the police engaged in a deliberate trick to induce the
accused to talk. Here the choice was made freely, the
only dispute being at best over the way in which the
evidence was recorded. These circumstances would
hardly “shock the community”.

The accused’s appeals were dismissed.
Complete case available at www.canlii.org
Editor’s note: An appeal in this decision has been filed
with the Supreme Court of Canada.

9

TRACE AMOUNT OF COCAINE
INSUFFICIENT FOR
CONVICTION
R. v. Marusiak, 2002 ABQB 774
The accused picked up a prostitute
in his truck as he drove through an
area of Calgary known as the “stroll”.
After being asked for a cigarette by
the prostitute, the accused gave his
cigarette package to her and she kept it until they
arrived at a desolate area near some railroad tracks,
which was commonly frequented and used for
exchanging sexual favours. While there, the accused
joined in and smoked what he believed was cocaine from
a crack pipe provided by the prostitute. Two uniformed
police officers approached the vehicle. They identified
themselves and ran checks on the names of both the
accused and the prostitute. The police were led to
believe that the accused had narcotics in his vehicle
after the prostitute, who was in violation of the
conditions of her recognizance, spoke to them. A
search of the accused’s truck and person was
conducted and trace amounts of cocaine were found in
the prostitutes crack pipe and in the accused’s
cigarette package. The items were seized and the
weight of the residue was negligible, weighing 0.0
grams. Following a chemical analysis, it was determined
the items contained trace amounts of cocaine and the
accused was convicted at trial of possession. The trial
judge reasoned that the accused was at one point in
possession of a useable amount of cocaine (more than
the residue which was left over) since he smoked a pipe
full of crack. The accused appealed his conviction to
the Alberta Court of Queen’s Bench.
Justice Sullivan concluded that the trial judge erred in
his determination that there was sufficient evidence to
support the conviction. The doctrine of de minimus non
curat lex (the law does not concern itself with trifles)
should have been applied. “The principle behind this
ancient legal maxim in connection with narcotics is that
the law should not concern itself with very small
quantities of drugs” and may be applied where there
are minute traces or residue (non useable or
measurable quantities); particularly when “the very
nature of the substance has changed in character so
that it can no longer be used for any purpose” (ie.
burned after being smoked).

Volume 2 Issue 9
September 2002

Furthermore, for a charge of possession of cocaine,
the court must be satisfied that the accused had the
required knowledge or control of the drug. In this case,
“the residue in the pipe was barely detectible, if at all,
with the human eye, nor did it bear any weight that
would qualify as a useable amount”. Justice Sullivan had
“serious concerns over whether an individual can have
requisite knowledge of, or control over, a substance of
such a minute, immeasurable, unusable quantity, a
substance which that individual does not even realize is
present”. Moreover, the pipe belonged to the prostitute
and was left in the truck after she was removed by the
police. There was sufficient doubt about whether the
accused had control over the pipe. Likewise, there was
insufficient evidence that the accused had knowledge
of the cocaine inside his cigarette package. The
prostitute had the package in her possession for a
brief time and there was insufficient evidence to prove
the accused was responsible for the trace amount of
cocaine found within it.
Finally, even though the accused testified he believed
he was smoking crack cocaine, there was inconclusive
evidence that was in fact what he had smoked. The
Certificate of Analysis identified the nature of the
trace amounts of substance found in the pipe, but could
not demonstrate how or when it got there. Thus,
Justice Sullivan held that the Certificate did not
conclusively prove what the accused actually smoked.
The conviction for possession of cocaine was set aside
and an acquittal was entered.
Complete case available at www.albertacourts.ab.ca

UNLAWFUL IMPAIRED ARREST
NOT ARBITRARY
R. v. Barci, 2002 BCPC 0327
A police officer approached a
vehicle stopped in a parking lot after
he had observed it being driven.
While speaking to the driver, the
officer detected a strong odour of liquor coming from
the vehicle, noted the accused’s eyes were watery with
dilated pupils, and that his head “bobbed” as he looked
around. The accused’s speech was thick and slurred and
he had difficulty removing his wallet from his pocket
and producing his driver’s licence. After asking the
driver to step from the vehicle, the officer noted a
strong smell of liquor emanating from the accused.
The officer formed the opinion that the accused’s

10

ability to operate a motor vehicle was impaired by
alcohol and placed him under arrest. He was
handcuffed, placed in the police car, read his s.10
Charter rights, read the breath demand, and issued a
24-hour driving suspension under British Columbia’s
Motor Vehicle Act. After being transported to the
police station and subsequently providing samples of
120mg% and 100mg%, the accused was released from
custody on a Promise to Appear.
During the voire dire, the officer testified that the
accused had identified himself satisfactorily and there
was no evidence at the scene to preserve nor did he
need any other evidence beyond the breath samples to
prosecute the impaired charge. Furthermore, there was
no reason for the officer to believe that the accused
would not attend court when served with the Promise
to Appear. The accused argued that the arrest was
unlawful because the officer failed to comply with
s.495(2) of the Criminal Code and was therefore an
arbitrary detention contrary to s.9 of the Charter.
Thus, the evidence obtained as a result of the
detention, including the breathalyser readings, should
be inadmissible under s.24(2).
The accused submitted that impaired driving is a
hybrid offence and the officer was satisfied with the
accused’s identity and no further evidence required
securing or preserving. As for the breath samples, the
accused must comply with a lawful demand under s.254
of the Code and an arrest is not necessary to ensure
compliance with the demand. On the other hand, the
Crown submitted that the “public interest” factors in
s.495(2) is not an exhaustive list and must take into
account “public policy considerations underlying the
section”. The need to prevent the repetition of criminal
offences was achieved by the arrest. Had the arrest
not been made, the officer would have been unable to
prevent the accused from entering his car and driving.

criminal offence. Not only had he issued a 24-hour
suspension to the defendant but, more importantly, had
made a lawful demand to the defendant, pursuant to s.
254 of the Criminal Code. (I am satisfied on all the
evidence that the officer had the requisite reasonable
and probable grounds to make the demand.) The
defendant either had to comply with or, if he thought he
had a reasonable excuse not to do so, refuse this demand.
In either case, in my view, the defendant would have
been taken from the scene to the police station. If he
complied, his lawful duty was to accompany [the officer]
to have the samples taken and analyzed. If he refused,
then, in my view, based on the evidence before the court
of the symptoms observed by the officer, [the officer]
would have been justified in arresting the defendant for
refusing to provide samples of his breath. The concerns
expressed by Crown counsel are, therefore, on the
evidence before me, unconvincing and could not justify
the arrest of the defendant.

However, not all unlawful arrests are arbitrary
detentions under the Charter. The Court stated:
Each unlawful arrest must be considered on its own,
taking
into
consideration
all
the
surrounding
circumstances. To amount to an arbitrary detention,
there must be something capricious about the arrest so
that it may be said that no reasonable person could
genuinely have believed that grounds for the arrest
existed, that is to say, there was a complete absence of
reasonable and probable grounds.

In this case, the actions of the officer in arresting the
accused could not be regarded as capricious or
arbitrary. Justice Lenaghan held that “[a]t its worst,
[it] was an error made in good faith” while “[a]t its
best, it was putting the cart briefly before the horse”.
Thus, the detention was not arbitrary and the
application to have the evidence ruled inadmissible was
dismissed.
Complete case available at www.provincialcourt.bc.ca

Justice Lenaghan of the British Columbia Provincial
Court held that the arrest was unlawful because the
officer failed to comply with s.495(2) of the Code.
Justice Lenaghan wrote:

CARELESS DRIVING DOES NOT
REQUIRE PROOF OF MENS REA

By his own admission, the officer knew the identity of
the accused, was not concerned about securing or
preserving evidence, and had no reason to believe that, if
released, the defendant would not subsequently appear in
court to be dealt with according to law. Nor, in the
circumstances, could the officer have reasonably been
concerned about the continuation or repetition of the
offence of impaired driving or the commission of another

The accused, who was driving at or
near the speed limit, was convicted
of careless driving under s.179 of
Yukon’s Motor Vehicles Act when he
struck an intoxicated pedestrian at
night wearing dark clothing crossing a road mid block
while it was snowing. There were other pedestrians in

Volume 2 Issue 9
September 2002

R. v. Morrison, 2002 YKCA 15

11

the area and the accused did not stop even though
other vehicles were coming to a stop. Section 179 of
the Act reads as follows:
Every person who drives a vehicle on a highway
(a) without due care and attention, or
(b) without reasonable consideration for persons using the
highway,
is guilty of the offence of driving carelessly.

The accused appealed to the Yukon Court of Appeal
arguing that the verdict was unreasonable. He
submitted that although he failed to meet the standard
of care of the ordinary prudent driver in the
circumstances, the trial judge failed to consider
whether the accused was blameworthy.
The Yukon Court of Appeal, in a unanimous judgement,
dismissed the appeal. Careless driving is a strict
liability offence not requiring proof of blameworthiness
or mens rea. All that is necessary is that the Crown
proves that the person committed the prohibited act.
The accused would then have to prove he took all
reasonable care (what a reasonable person would have
done) to avoid the circumstances. In this case, the
trial judge found the accused breached the standard of
conduct required by s.179 and therefore did the
prohibited act.
Complete case available at www.courts.gov.bc.ca

WARRANTLESS DWELLING
ENTRY UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. David,
(2002) Docket:C26614 (OntCA)
Police entered a residence and found
the bodies of two female adults and
a child. One female adult (the
accused’s mother) had died from
sledgehammer blows to the head
while the other adult female (the accused’s aunt) and
her 10 year old son (the accused’s cousin) died as a
result of ligature strangulation. Neighbours informed
the police that the 21-year-old accused lived in an
apartment during the week while attending university
and would come home on the weekends. One neighbour
told police they had seen the accused at the residence
4 days before the bodies were discovered. After
several unsuccessful attempts to contact the accused,
police entered his apartment without a warrant 28

Volume 2 Issue 9
September 2002

hours after the bodies were discovered and after the
police obtained an opinion from a justice of the peace
that there were insufficient grounds for obtaining a
warrant. While entering the apartment, the police
observed bloodstained clothing. This was later seized
under the authority of a warrant the police
subsequently obtained based on the observations made
during the warrantless entry. A DNA warrant was also
obtained and a sample of the accused’s blood was
seized for analysis. At trial, the accused was convicted
of three counts of first-degree murder for the deaths
of his mother, aunt, and cousin.
The trial judge concluded that the warrantless entry
was not authorized by statute and therefore violated
the accused’s right to be secure against unreasonable
search and seizure protected under s.8 of the Charter.
However, he found the police acted in good faith and
under exigent circumstances, which mitigated the
seriousness of the breach. The police honestly and
reasonably believed they should enter the accused’s
apartment to check if he was a victim or to question
him as a suspect, and limited their entry and search for
those purposes. The police entered because “they were
concerned not only with their duty to interview [the
accused] as a possible perpetrator, but also with their
duty to notify him as a next of kin of his family’s death,
and also with their duty involving concerns for his
safety as a possible victim”. Further, the blood stained
clothing was real, non-conscriptive evidence found in
plain view. The police would have had reasonable
grounds to obtain a search warrant anyways based on
evidence discovered at the crime scene. Thus, the
clothing’s discovery was inevitable. The charge was
serious and the bloodstained clothing and DNA analysis
important pieces of evidence. The evidence was
admissible because its admission would not bring the
administration of justice into disrepute.
The accused appealed his conviction to the Ontario
Court of Appeal arguing in part, that the trial judge
erred in failing to exclude the evidence resulting from
the warrantless entry into the accused’s apartment.
Although the accused conceded that the police may
enter a home for the purpose of preserving life, he
argued that the police did not have an objective basis
for believing he was injured or dead within his
apartment and therefore exigent circumstances did not
exist. Moreover, even if the entry was authorized, the
accused submitted that the plain view doctrine does
not apply to police observations made during emergency
entries of this nature.

12

In dismissing the accused’s appeal, Justice Simmons for
the unanimous Ontario Court of Appeal held the trial
judge’s conclusions were not in error. The trial judge’s
findings of exigent circumstances and good faith were
supported by the evidence and he did not err in his
s.24(2) analysis.
Complete case available at www.ontariocourts.on.ca

LATE NIGHT HYDRO ENTRY
UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. Pham, 2002 BCCA 503
Police, executing a search warrant
on a home to search for evidence of
theft of electricity, discovered two
rooms
containing
about
180
marihuana plants, venting, lighting, and an electrical
bypass. While the police were in the process of
obtaining a second search warrant to seize the
evidence of the grow operation, the accused entered
the residence through a locked door. She was arrested
and provided her s.10(b) Charter rights. During a voire
dire, a statement made by the accused was ruled
inadmissible by the trial judge because of a s.10(b)
violation. Although she had been advised of her right to
counsel, the police did not give her access to a lawyer
within a reasonable time.
The trial judge also found that the first warrant was
obtained in violation of the accused’s right under s.8 of
the Charter to be protected against unreasonable
search and seizure. The police relied upon the electrical
meter readings made by a B.C. Hydro employee, which
were taken at 1:28 am when he went onto the accused’s
property. The B.C. Hydro and Power Authority Tariff
only allows Hydro employees free access to meters if
they enter at a reasonable time. The trial judge
concluded that the time the employee went onto the
property was not reasonable and therefore his entry
amounted to a trespass. Since the Hydro employee was
an agent of the Crown, his actions violated s.8 of the
Charter and the meter reading was excised from the
warrant. Without this evidence, there was insufficient
grounds upon which to grant a warrant and it was
consequently quashed. However, the evidence was ruled
admissible under s.24(2) of the Charter. The trial
judge found the police and the hydro employee acted in
good faith and the trespass was onto the accused’s

Volume 2 Issue 9
September 2002

property, not into her home, which mitigated its
seriousness.
The accused subsequently appealed her convictions of
possession of marihuana for the purpose of trafficking,
production of marihuana, and theft of electricity
arguing, in part, that the trial judge misapplied the
proper analysis for exclusion. She submitted that the
trial judges findings of good faith were unreasonable.
In rejecting this ground of appeal, Justice Ryan for the
unanimous British Columbia Court of Appeal held the
trial judges findings were reasonable. The Hydro
employee, who had not been directed by the police,
believed he had the authority to enter onto the
accused’s property at the time he did, the entry was
disclosed by police in the information to obtain the
warrant, and the police did not deliberately withhold
anything from the justice of the peace. Justice Ryan
also rejected the argument that the trial judge failed
to consider the s.10(b) breach in admitting the
evidence resulting from the search. In Justice Ryan’s
view, there was not a sufficient connection between
the s.10(b) violation and the s.8 breach for them to be
considered together. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

INCOMPLETE RECORDING OF
INTERVIEW DID NOT BREACH
DISCLOSURE DUTY
R. v. Jordan, 2002 BCCA 330
The accused, who had previously
been convicted of manslaughter for
supplying a lethal amount of liquor to
a female alcoholic, was placed on a
recognizance under s.810.2 of the
Criminal Code after a police officer swore an
information that he had reasonable grounds to believe
the accused would commit a personal injury offence.
Following his arrest for breach, he was interviewed by
the police, which was audio recorded. Unfortunately,
the officer pushed the play instead of the record
button, and the first 45 minutes on side one of the
tape was blank. Realizing his mistake, the investigator
made notes of the first half of the interview from
memory. Although the Crown had no intention of
entering the interview as evidence since it was
exculpatory, the tape and notes were properly
disclosed to the accused. At trial, the accused was

13

convicted of two counts of breaching his recognizance.
He appealed to the British Columbia Court of Appeal
arguing, among other grounds, that the Crown breached
its duty of disclosure by failing to preserve and
disclose evidence, which deprived the accused from
making full answer and defence which is protected
under s.7 of the Charter. In rejecting this ground of
appeal, Justice Donald, for the unanimous British
Columbia Court of Appeal, stated:
The Crown gave the [accused] what it had, including notes
of the unrecorded part of the interview. Nothing that
existed was withheld. While the police are well advised to
record interviews like this, the law does not require them
to do so. Here, the absence of a recording was
inadvertent and the officer did his best to recall what
the [accused] said. The error was inconsequential
because the [accused’s] position was the same throughout
the entire interview in maintaining his innocence.

Thus, “the non-recording of the first half of the
interview did not deprive the right to make full answer
and defence”. Furthermore, the accused argued that
because the officer suggested he could tell the
accused’s side of the story in court if he gave a
statement, this amounted to a binding commitment on
the Crown to lead the exculpatory statement without
the need of the accused testifying on his own behalf.
Justice Donald found the accused “had the opportunity
to put his version into evidence by giving sworn
testimony, but he cannot force the Crown to lead an
exculpatory statement in the circumstances of this
case”.
Complete case available at www.courts.gov.bc.ca

UNINTENTIONAL ‘GATING’
PROCEDURE NOT AN ABUSE OF
PROCESS
R. v. Benson, 2002 BCCA 291
The accused was originally charged
with two counts of robbery for the
removal of money from Liquor Store
cash registers. About three months
later a warrant was issued for his
arrest. The accused was in custody at a correctional
centre where he had been serving an unrelated
sentence and the warrant was not executed until the
day of his release, some two months after the warrant
was issued. At trial, the accused was convicted of two
counts of the lesser included offence of theft on the

Volume 2 Issue 9
September 2002

robbery charges. The accused appealed to the British
Columbia Court of Appeal contending, among other
grounds, that the delay in issuing and executing the
arrest warrant was an abuse of process.
In referring to what he called “gating”, the accused
argued that the police had reasonable grounds to
charge him for the robbery offences, but the delay in
issuing the warrant and subsequently executing it at
the gate of the correctional centre on the day of his
release amounted to an abuse of process and Charter
violation. An affidavit was filed by the police, which
outlined the chronology of events beginning with the
initiation of the investigation. Although Justice
Thackray for the unanimous appeal court called the
accused’s gating submission interesting, he dismissed
the accused’s appeal and stated:
While the investigation did not proceed with great haste,
I am satisfied that because of case loads, illness and an
unexplained lack of information about the whereabouts
of the [accused], the process was neither deliberately
delayed nor designed to accomplish the gating procedure
about which the [accused] complains.

Complete case available at www.courts.gov.bc.ca

ABBOTSFORD POLICE WIN
SOCCER GOLD AT NORTH
AMERICAN CHAMPIONSHIP
The Abbotsford Police Department
(B.C.) won gold in the men’s
recreational division at the 2002
North American Police Soccer
Championships held in Los Angeles,
California from September 4th-8th.
Representing the smallest police department in the
tournament, Abbotsford was undefeated in five
straight games and out scored their opponents 12-1. On
their way to the final, Abbotsford was victorious over
Ventura County (California), Halton Regional (Ontario),
New Jersey, and Philadelphia. In the final, Abbotsford
beat York Regional (Ontario) 2-0. The Soccer
Championships hosts men and women law enforcement
soccer teams from all over North America and
Bermuda. Past host cities have
included
Abbotsford
(1996),
Philadelphia
(1997),
Bermuda
(1998), Vancouver (1999), St. Louis
(2000), and Toronto (2001). This
was not Abbotsford’s first win in

14

the competition. They won gold in 1999 and were
runners up in 1996 and 2001. Next year’s tournament is
in New York while the Abbotsford Police Department is
scheduled to host the event in 2005. Congratulations!!!

LIVING ON THE AVAILS
PROVIDES FOUNDATION FOR
POSSESSION OF CRIME
PROPERTY & LAUNDERING
R. v. Friesen, 2002 SKCA 32
The accused, who ran an escort
dispatching service, was convicted of
two counts of living on the avails of
prostitution of another person
(s.212(1)(j) Criminal Code), but
acquitted of possession of property over $5000
obtained by crime (s.354(1) Criminal Code) and
laundering proceeds of an enterprise crime offence
(s.462.31(1) Criminal Code). The trial judge concluded
that s.212(1)(j) could not provide the foundation for
either of these offences. Crown appealed the acquittals
to the Saskatchewan Court of Appeal arguing that the
trial judge misconceived the relationship between
s.212(1)(j) and ss.354(1) and 462.31(1), and that this
may affect future prosecutions of this nature.

Possession of Property Obtained by Crime
Section 212(1)(j) is targeted at those who parasitically
live off the earnings of a prostitute and creates an
offence for a person to live wholly, or in part, on the
avails of prostitution. Section 354(1) makes it an
offence for a person to be in possession of property
knowing that it was obtained from the commission of an
indictable offence. Justice Cameron, for the unanimous
Saskatchewan Court of Appeal, held there was no
reason why these two sections could not operate
together. He stated:
A person who lives parasitically, in whole or in part, on
the earnings of a prostitute may, if that person comes
in for a share of the earnings, acquire property
therewith and be in possession of that property. That
is what happened here. The [accused] routinely
received a proportionate share of the earnings of the
prostitutes, deposited her share into a bank account,
and then withdrew money from time to time for the
purposes, among others, of acquiring the house she
lived in, a car, a piano, and so on. It is this property,
acquired by her while living on and using the avails of

Volume 2 Issue 9
September 2002

prostitution for these and other purposes that formed
the subject matter of the charge under s.354(1). In
other words she was charged with the possession of
this property, knowing it hade been obtained by or
derived, directly or indirectly, from the commission of
the offence of living on the avails of another’s
prostitution.

Laundering Proceeds of Crime
Section 462.31(1) creates an offence for a person to
use, deliver, dispose of, or otherwise deal with
property or its proceeds with intent to conceal or
convert it, knowing or believing that all or part of it
was obtained or derived directly or indirectly as a
result of the commission of an enterprise crime
offence. An enterprise crime offence is defined as
including an offence against s.212. If the accused
laundered “her share of the prostitutes’ earnings by
turning it into interests in a house, a car, a piano and so
forth, with the intent and knowledge required by the
section”, the trial judge should not have acquitted as he
did. Both s.212(1)(j) and s.462.31(1) are capable of
operating together.
Complete case available at www.canlii.org

MINOR WARRANT DEFECT
DOES NOT RENDER ITS
EXECUTION UNREASONABLE
R. v. Hebert,
(2002) Docket:C35808 (OntCA)
The police obtained a faxed copy of
a search warrant that did not
contain the time after which the
warrant could be executed. The
officers confirmed by telephone
that the warrant could be executed after 11:00am and
did execute it after this time, when the accused was
not present. The accused was found guilty but appealed
his drug conviction to the Ontario Court of Appeal
arguing that the warrant was invalid and executed in a
unreasonable manner. In dismissing the appeal, the
Court found “the defect in the copy of the warrant had
no effect on the way it was executed and in no way
compromised the accused’s privacy interests or any
right he may have had to know the contents of the
warrant had he been present when it was executed”.
The minor defect in the copy of the warrant did not
render the manner in which the warrant was executed

15

unreasonable. Moreover, the fact the officer who
swore the information to obtain the warrant did not
identify the particular officer by name who provided
him information was not significant and did not render
the warrant invalid. Although “the officer could have
been more precise in identifying which officer directly
provided information to him”, the officer swore that all
the officers provided reliable information. Similarly,
the officer’s failure in fully detailing the criminal
records of the three confidential informants was not
fatal. There was no evidence that the partial details
provided were inaccurate or that the full criminal
records would have impacted the justice of the peace’s
decision to grant the warrant. Furthermore, “the
information provided by the confidential informants
and the officers’ reasons for believing that information
were sufficient when considered in their totality to
justify the issuing of the warrant. There was some
confirmation of material aspects of the information
provided by the informants in the other parts of the
information. The [accused] did live where the
informants said he lived and he did have a record for
drug trafficking”.

the injuries sustained by the victim were insufficient
to meet the threshold of “bodily harm”.
Bodily harm is defined in s.2 of the Criminal Code as
“any hurt or injury to a person that interferes with the
health or comfort of the person and that is more than
merely transient or trifling in nature”. Bodily harm is
not restricted to physical injury, but has been
interpreted by the Supreme Court of Canada to include
“psychological harm”24. In dismissing the accused’s
appeal, Justice Saunders for the unanimous Nova
Scotia Court of Appeal noted the physical injuries in
this case were at the low end of the scale. However,
“relatively minor physical injuries” can constitute
“bodily harm” in sexual assault cases and the injuries
suffered by the victim were not trifling, considering
the “emotional repercussions” experienced by the
victim. As a result, there was adequate evidence upon
which a jury could find the accused guilty of causing
bodily harm while committing a sexual assault.
Complete case available at www.canlii.org

UNLAWFUL DETENTION
ARBITRARY, BUT STATEMENT
ADMISSIBLE

Complete case available at www.ontariocourts.on.ca

BODILY HARM INCLUDES
‘EMOTIONAL REPERCUSSIONS’
R. v. MacLeod, 2002 NSCA 24
The accused was convicted by a jury
of sexual assault causing bodily
harm. He had met the victim at a bar
and had been invited into her
apartment for a drink or to smoke
some hashish after the two had walked with each other
from the bar. Sometime thereafter, the accused
pinned the victim to her bed by straddling her and held
her wrists while attempting to force his penis into her
mouth. He also threatened to knock the victim’s teeth
out if she did not keep quiet. During the struggle with
the accused, the victim suffered bruises to her neck
and arms that lasted a week and a number of small cuts
to her face caused by the sharp edges of the rings she
was wearing, one of which left a scar. Further, the
victim was visibly shaken after the event and had
testified she suffered emotionally, which adversely
affected her willingness to be intimate in her current
relationships. The accused appealed his conviction to
the Nova Scotia Court of Appeal arguing in part, that

R. v. E.W., 2002 NFCA 49
The accused was arrested for
historical sexual offences at about
6:00 pm., but did not appear before
a justice of the peace until about
5:46 pm. the following day. After
the accused was taken into custody,
the police interviewed his estranged wife which was
completed at about midnight. However, during the next
morning and up until 3:20 pm. that afternoon, the police
took no action with the investigation. Furthermore,
there was no explanation of why the police waited until
the afternoon to ask the accused if he would provide a
statement. At the time he was brought before a
justice, the accused was providing a statement to the
police. After completing the statement the accused
was granted judicial interim release with conditions.
The accused argued that he had been arbitrarily
detained when he was arrested and unlawfully held in
custody for almost 24 hours before appearing before a
justice. Had the interview not been interrupted to

24

Volume 2 Issue 9
September 2002

R. v. McGraw [1991] 3 S.C.R. 72

16

permit the hearing before a justice of the peace, the
24-hour time limitation imposed by s. 503(1) of the
Code would have been breached. The trial judge
concluded that the accused was not arbitrarily
detained and he was convicted of the sexual offences
for which he was charged. The accused appealed to the
Newfoundland Court of Appeal arguing, among other
grounds, that the trial judge erred in concluding that
the accused was not arbitrarily detained in violation of
s.9 of the Charter.

Arbitrary Detention
Section 503 of the Criminal Code guarantees the
accused an opportunity to seek release from custody
and requires that a person held by police be brought
before a justice without unreasonable delay and in any
event within 24 hours. What constitutes unreasonable
delay will depend on the particular facts of the case
and the 24-hour time limitation is the outer limit of
permissible detention. In some cases, even though 24
hours has not expired an unreasonable delay could
nevertheless occur. In this case the police were unable
to explain the delay in interviewing the accused. There
was “no evidence that the delay was due to other
demands that affected the ability of the police to deal
with [the accused] or the investigation expeditiously”.
Justice Welsh, for the unanimous Newfoundland Court
of Appeal, held:
Where there has been a delay in taking an arrested
person before a justice of the peace, that delay must be
justified as reasonable.
Justification requires an
evidentiary foundation.
In this case there is no
explanation for more than six daytime hours during which
[the accused] was held in custody. This is a significant
period of time particularly when considered in light of
the purpose of section 503(1).
In the result, the conclusion was followed that [the
accused’s] detention contravened section 503(1) of the
Criminal Code. His detention was, therefore, unlawful.
That unlawful detention also constituted an arbitrary
detention under section 9 of the Charter. The violation
of section 503(1) was not a mere technical error. Nor was
it explained by activities of or exigencies faced by the
police. [The accused] had the fundamental right to have
his detention assessed by a justice of the peace without
unreasonable delay.

The Court found that “the length of the delay, the
surrounding circumstances, and the failure of the
police to account in any way for their failure to bring
[the accused] before a justice of the police without

Volume 2 Issue 9
September 2002

unreasonable delay resulted in an arbitrary detention”.
Thus, his right under s.9 of the Charter was violated.

Statement Admissibility
The accused argued that the statement made by him
should be ruled inadmissible under s.24(2) of the
Charter as remedy for the s.9 breach. In assessing
whether the statement was admissible, the Court would
(1) have to determine whether there was a causal link
between the s.9 Charter violation and the statement
and if so, (2) would the administration of justice be
brought into disrepute if it were to be admitted into
evidence. Bearing in mind that the delay in obtaining a
statement is not by itself sufficient to establish a
causal connection, under the first prong of the analysis
the accused would have to demonstrate that he would
not have provided the statement to police if he had not
been detained until the late afternoon. The accused
was unable to establish that his detention at the point
it became arbitrary had any relationship with or
connection to him providing a statement. There was no
oppressive of improper conduct by the police nor was
the delay in bringing the accused before a justice
designed to increase the likelihood of obtaining a
statement. Since the accused was unable to prove the
necessary causal connection between the arbitrary
detention and the giving of his statement, s.24(2) was
not engaged and the statement was admissible.
Complete case available at www.canlii.org

NON-PRESUMPTIVE CARE &
CONTROL REQUIRES RISK OF
DANGER
R. v. Burbella, 2002 MBCA 106
The
accused
re-attended
the
accident scene where he had driven
his vehicle into a snow filled ditch,
which caused extensive damage to
his vehicle and rendered it wholly
inoperable. When the tow truck and police arrived, the
accused got behind the wheel of the vehicle at the
request of the tow truck operator and turned the
engine on to disengage the steering mechanism which
assisted with the recovery of the vehicle. When the
accused exited the vehicle, he was promptly arrested
by police and charged with care and control of a motor
vehicle while impaired. At trial, the accused did not
dispute that he was impaired but testified that he had
consumed alcohol after the accident and prior to his

17

re-attendance at the scene. The accused was convicted
by the trial judge, but appealed to the Manitoba Court
of Appeal arguing that there was no risk of the vehicle
being put in motion and therefore his conduct did not
constitute a danger to the public, the evil s.253 of the
Criminal Code is intended to address.
After examining several Supreme Court of Canada
judgements, Chief Justice Scott for the Manitoba
Court of Appeal concluded that the “purpose of [s.253
of the Code] is to protect the public from the danger
which can occur when an impaired person gains control
of a motor vehicle”. Furthermore, “the risk of putting a
vehicle in motion so that it could become dangerous
is…an element of care and control, which is the
risk…the care and control legislation seeks to prevent”.
There are two methods by which the Crown can prove
care and control; (1) by resorting to the presumption
found in s.258(1)(a) of the Code (occupant of the
driver’s seat) or (2) by proving actual (non-presumptive)
care and control. If the Crown uses the care and
control presumption, the absence of danger will not
afford a defence. However, an intention not to drive
may rebut this presumption. If rebutted, the Crown can
nonetheless seek a conviction if it can be proven that
the accused was in actual care and control.
Where the Crown relies on actual care and control
short of driving, they must demonstrate the accused
engaged in “acts which involve some use of the car or
its fittings and equipment, or some course of conduct
associated with the vehicle which would involve a risk
of putting the vehicle in motion so that it could become
dangerous25”. In this case, non-presumptive care and
control had not been proven. The Crown was unable to
rely on the presumption nor was the necessary element
of danger present to prove actual care and control. The
accused’s conviction was overturned and an acquittal
was entered.
Complete case available at www.canlii.org

Note-able Quote
“Arguably, as a parolee, he has or should have a much

reduced expectation of privacy and should be subject
to police scrutiny and some searching that would be
unacceptable with respect to citizens who are not
under sentence26”. OntCJ Justice Duncan
25
26

R. v. Ford [1982] 1 S.C.R. 231
R. v. Catroppa, [2002] O.J. No. 3399 (OntCJ)

Volume 2 Issue 9
September 2002

PAROLEE VEHICLE SEARCH
UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. Catroppa,
[2002] O.J. No. 3399 (OntCJ)
After stopping the accused driving,
a police officer queried him on CPIC
and learned that there was a parole
suspension warrant outstanding. The
accused was arrested, handcuffed,
and placed in the police car. The officer returned to
the accused’s car, searched it, and found a flick knife
in a lidded console, which the officer had to open,
between the front seats. The evidence was that officer
searched the vehicle without a warrant “incident to
arrest and for valuables, since [the vehicle] was being
seized”. The accused was subsequently charged with
possession of a prohibited weapon (the flick knife). At
trial the accused argued, in part, that he was the
subject of an unreasonable search and seizure contrary
to s.8 of the Charter. He suggested that “the search
incident to arrest power was not available [to the
officer], since the underlying purposes for that power
were not applicable nor in the arresting officer’s mind”
at the time of the search. The Crown sought to justify
the search both as an incident to arrest and as an
“inventory search”.

Search Incident to Arrest
Although the arrest itself was proper, Justice Duncan
of the Ontario Court of Justice found the search to be
unreasonable as an incident to arrest. Searches
incident to arrest can be for the purpose of finding
evidence of an offence or for safety. In this case, the
accused was not arrested for an offence (it was a
parole suspension warrant) and “officer safety was not
a concern as the [accused] was already in custody,
handcuffed in the patrol car”.

Inventory Search
The Crown also failed to justify the search as an
“inventory search”. Although Justice Duncan held that
“the police have authority to enter [a lawfully seized]
vehicle for the purpose of itemizing and safeguarding
objects in plain view and the driver has no reasonable
expectation of privacy in respect of such a search”, the
officer had to open the closed console to locate the
knife. The inventory search is restricted to itemizing

18

visible valuables and does not authorize searches
beyond plain view. To the extent the officer exceeded
the “plain view” scope of the inventory search, the
opening of the closed console was unreasonable and
violated the accused’s protections under s.8 of the
Charter.

Evidence Admissibility
Even though he found a Charter breach, Justice Duncan
nonetheless admitted the evidence. The violation was
not serious. There was a significantly reduced
expectation of privacy, the search was brief, minimally
intrusive, and it “barely crossed the line”. Furthermore,
the knife was reliable evidence and necessary for a
successful prosecution.

DETENTION & SEARCH
UNLAWFUL: POLICE LACK
ARTICULABLE CAUSE
R. v. Savory,
[2002] O.J. No. 2715 (OntCJ)
Two police officers on routine patrol
in a high drug and related crime area
stopped at a coffee shop. They used
a technique where one officer would
enter a door, and anyone who
attempted to leave upon the police entering would be
intercepted by the second officer at another door. At
the coffee shop, one officer entered the west door and
the accused was seen exiting out a second door. At the
same time, the female shop owner pointed at the
accused, as he was leaving. The second officer saw the
accused leaving. The owner was pointing at the accused
while looking at police. The officer observed the man,
now in the entrance of a neighbouring store, look out
and duck back into the entranceway. The officer
approached the man and asked him to come back into
the coffee shop. As they re-entered the coffee shop,
the police heard the shop owner, who did not speak
good English, mention the word “threaten” as she
pointed at the accused. The man said he had no
identification and the officer searched his pockets.
Although no identification was found, the officer did
find crumpled money. While being searched, the
accused verbally identified himself.
He was subsequently arrested for investigation of
threatening. After finding the crumpled money in the

Volume 2 Issue 9
September 2002

accused’s pockets, the police became very suspicious
that he may be involved in drug activity. The accused
was told to open his mouth and lift his tongue. Although
he merely wiggled his tongue, an officer observed the
glimpse of a piece of crack cocaine wrapped in plastic.
The accused was arrested for possession of crack
cocaine, but the accused attempted to swallow the
drugs. An officer applied pressure under the accused’s
cheekbones to prevent him from swallowing. The second
officer yelled at the accused to spit the crack out and
tried to get his hands around the accused’s throat.
During the struggle in which both officers sustained
cuts to their hands from the clawing of the accused, he
successfully swallowed the contents of his mouth. No
further attempt was made to retrieve or detect the
presence of drugs from within the accused. At trial,
the accused made an application that the evidence be
inadmissible because the police violated his s.8 (search
and seizure) and s.9 (arbitrary detention) rights under
the Charter.

The Detention
The first step in determining whether s.9 has been
violated is whether there was in fact a detention.
Justice Shamai of the Ontario Court of Justice
concluded that the accused had been detained when he
was asked to accompany the officer back into the
coffee shop. The accused was a young black man on
foot in a high crime area. Although race was not an
issue in the investigation itself, the issue of race can
be a significant factor in determining whether the
accused exercised free choice. Having found the
accused detained, the Court then examined whether
the detention was arbitrary. For a detention not to be
arbitrary, the police must have at minimum an
articulable cause. Although the accused’s actions were
suspicious (“he concealed himself in a doorway after
exiting the donut shop upon the entry of the police
officers”), the police did not have an articulable cause
to detain him. Justice Shamai stated:
In the case at bar, I am of the view that while [the
officer] was in execution of his duties in following [the
accused] while his partner investigated the gesture of
the shop owner. [The officer] was entitled to pursue his
duties by asking questions of [the accused]. In these
circumstances, he had nothing amounting to articulable
cause…. He didn't know what sort of criminal conduct he
was investigating. He only knew that the shop owner…was
pointing at [the accused] as he left the store, and that
the store was located in an area whose law abiding
citizens and business owners had asked police for help

19

against drug users and dealers and other criminals. At
the point where he asked [the accused] to accompany him
back into the store he was in fact asking him to help the
police know why the shop owner pointed at [the accused]
when he left. He had no knowledge of an offence; he was
enlisting [the accused] in finding out whether he had
done something wrong. Although he describes [the
accused] as co-operative and coming voluntarily, my view
is that realistically [the accused] had no choice. The fact
that he did not fight nor did he protest is not evidence
to the contrary, especially as his rights on detention, or
his choices, were in no way described to him. In these
circumstances, requiring him to do what the officer
wanted, without articulable cause, amounted to an
arbitrary detention.

The Search
Since the stop on the street was an arbitrary
detention, the search could not be justified as an
incident thereto. Even if it could be argued that the
police did have articulable cause, a search would only be
justified on officer safety grounds arising in the
circumstances. In this case, the Court concluded the
“search had nothing to do with officer safety” and
stated:
[P]olice action in connection with a properly founded
detention must be determined contextually. The British
Columbia Court of Appeal [has limited the ambit of
search powers permissible on a proper detention] to the
requirements of the offence being investigated, and at
most, to issues of officer safety raised by the
circumstances. Here, [he accused] was searched for the
purpose of ascertaining his identity. He gave his name as
he was being searched. That should have enabled the
next proper stage of investigation. In my view there was
no proper reason for a search of his pockets to be
conducted as and when it was. At best, a search could be
justified in ensuring officer safety through the
investigation of the offence. No issue as stated in terms
of officer safety: the search was explicitly for the
purposes of aiding in the identification of [the
accused]. The discovery of crumpled Canadian currency
was outside the ambit of any proper search: there was no
proper search at this stage. To further intrude into [the
accused’s] security of the person by attempting to
search his mouth and requiring him to lift his tongue in a
certain manner, then grabbing his throat and his face to
make him spit and/or not swallow are entirely
unwarranted
and
unreasonable
actions
in
the
circumstances.
I might say that the only point of the officers' testimony
on which I seriously doubted their good faith was when
[the officer] said he wanted to remove the suspected
cocaine from [the accused’s] mouth for [the accused’s]

Volume 2 Issue 9
September 2002

protection. No further action was taken by the police to
assist [the accused] once the officers were convinced
that he had swallowed the cocaine, the very thing they
were trying to guard against, to take their evidence at
face value. As to the rest of their actions, I have the
impression that they believe their powers to be much
broader than the prescriptions of common-law and
constitution show them to be.
The search here exceeds constitutional bounds and
amounts to a gross invasion of [the accused’s] privacy and
bodily integrity, not to mention his dignity. The demand
for [the accused] to open his mouth was unrelated to the
only lawful and limited purpose for which an unwarranted
search might have been performed in these
circumstances. Once an unlawful and unwarranted search
was underway, to further explore [the accused’s] body
cavity, his mouth, in the middle of a restaurant, was a
serious overstepping of police authority to search. Even
if some search might have been permissible pursuant to
the detention for articulable cause, the steps taken by
the officers far exceeded that boundary.

Furthermore, the search could not be justified as an
incident to arrest. Neither police officer had
reasonable
grounds
(subjective/objective
circumstances) upon which to base an arrest nor could
they state what the offence was that they believed
had been committed. Even though the “police are
entitled to investigate further after an arrest is
made”, in this case the officer did not make an arrest
for an offence, but arrested for investigation. The
accused successfully satisfied the court that his rights
under s.8 and 9 of the Charter had been infringed.

Note-able Quote
“The duties which a police officer owes to the state

are of a most exacting nature. No one is compelled to
choose the profession of a police officer, but having
chosen it, everyone is obliged to live up to the standard
of its requirements. To join in that high enterprise
means the surrender of much individual freedom”.
Calvin Coolidge (1872-1933)

For comments on or contributions to this
newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

20