ISSUES

OF
INTEREST
VOLUME NO.

14

Juspce Institute
Of British Columbia
Written by John M. Post
Janu a ry 1984

4180 West 4th Avenue
Vancouver, B.C.
V6B4J5

ISSUBS OP DITBIEST

VOLUME II>. 14
Written by John K. Poat
.January 1984

TABLE OF a>NTEHTS

Page

CHARTER OF IIGBTS AlllD ftllOOMS
WRITS OF ASSISTANCE - IEASOHABLE SEAltCB • • • • • • • • • • • • • • • • • • • • • • • •

l

Regina v. Cuff, County Court of Vancouver,
Vancouver Registry CC821838 June 1983
FAI.SE I.MPRISOMKENT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

7

Re Butt v. Saint and Loveless, Newfoundland
Supreme Court, Trial Division
POSSESSION OF AITI'OHOBILE MASTEll.EY
IS A CDAT llAMGEK DtCLIJDED? •••••••••••••••••••••••••••••••••••••
Regina v. Young, 3 c.c.c. (3rd) 395
Ontario Court of Appeal

9

POSSIBLE BREATBA.LYZER FLAW
EVIDENCE 10 1llE OOr~Y? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

10

Regina v. Stewart, County Court of Yale,
Penticton Registry No. 4/83 (349) Kay 1983

IS A VOIK DIKE AN DIDEPENDENT 'DUAL ••••••••••••••••••••••••••••
Regina v. Horris, County Court of Prince Rupert,
May 1983, No. C.C. 10/83 Terrace Registry

11

WHAT IS 'DIE M!ANIBG OF •F&AUDULERT•? • • • • • • • • • • • • • • • • • • • • • • • • • •

12

Regina v. Dalzell, 3 C.C.C. (3d) 232
County Court of Halifax

- ii -

Page
WHO DECmEs 'l'O PROSECUTE? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

14

Dawson v. The Queen, Supreme Court of Canada
October 1983
PROTECTION OF PRIVACY
K.KNEVIRG AH AUTHORIZATION MD lil>T DISCLOSDlG
THAT ADDITIONAL QUMIRAL ACTIVITY WAS DISCOVERED

• ! •••••••••••

15

CAR .. PUFFS.. AKODt~ m A $AMPLE OF BKEATH? • • • • • • • • • • • • • • • • • • • •

17

The Queen Ve Comisso~ Supreme Court of Canada
Octobe·r 1983

Regina v. Adkin, B. C. Court of Appeal, No. 204/82
September 1983
GIVING A REASONABLE l«>TICE OF Th""TI«fr MD A OOPY OF

THE c:E.llTIFICA.T£, • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

17

Regina v. McGuire, B. C. Court of Appeal, September 1983
1.
2.
3.

CAN EVmERCE OF PRIOR. llUVING lEAD m FINDING CARE
OR. OORTROL?
DOES A ·nEMAHD· CAUSE nm SUBJECT 'l'O BE IETAIRED?
MUST A FAILURE m INFORM nm SUSPECT OF RIGHT 'l'O
COUNSEL IF BE IS DETAINED, RESULT IN EXCLUSION OF
CKR..TIFICATE IN EVmENCE? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

18

Regina v. Hatter, County Court of Vancouver Island,
Victoria Reg. No. 25979, June 1983

....

20

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

21

FAULTY APPEARANCE NOTICE - DOES OOUR..T LOSE JUIUSDICTION?

Kennedy v. The Attorney General of B. C., B. C. Court of
Appeal #820742, September 1983
UllKEASOl!IABLE SEAR.CH
EXCLUSION OF EVmERCE

Regina v. Gladstone, County Court of Vancouver
Vancouver Registry CC 821480 June 1983

- iii -

Page

AT'lEKPT SUICIDE AMOONTING 'l'O MIJKDER. - TKAllSFERRKD INTENT
Re Brown and The Queen. Ontario High Court of Justice,
February 1983 4 c.c.c. (ld} 571
CBAllTEK. OF JUm!'lS aID FUEOOMS
CRUEL ARD UNUSUAL PUNISHMENT •••••••••••••

• • •

......

• • • • q..

23

24

Regina v. Smith, County Court of Vancouver
Vancouver Registry No. CC821369 September 1983
DOES MOVING A CAR AN INAPPRECIABLE DISTANCE AMOUNT
TO •oR.IVING•? •••••••••••••••••••••••••

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

25

Regina v. Chessa, B. C. Court of Appeal (No. CA000657)
September 1983
PROOF OF 'DIKRE BEIHG AT I.EAST FI.1'TEKN MINUTES BETWEEN
'NO~$ w• oo o•••••••••••••••

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

26

•ADMISSIBILITY OF STATEMENTS m PROVE 'DANGEROUS OFFENDER'•

28

Regina v. Taylor, Ontario Court of Appeal - May 1983

The Queen v~ Boyd, B. C. Court of Appeal, October 1983
Victoria Registry 26/83

·coURT OF <X>MPETENT JURISDICTION•
CHARTER OF llGHTS ARD FREEDOMS •••
Between Legal Services Scciety and His Honour
Judge L.C. Brahen of the B. C. Provincial Court,
Supreme Court of B. C. April 1983

........ .

•p11.1vATE O>MKIJIUCATIOr
•REASONABLE 'I.".J EXPECT 'DIAT IT WOULD I«>T BE INTERCEPTED•

29

31

The Queen v. Samson, Ontario Court of Appeal - June 1983
JUDICIAL STAY OF PROCEEDINGS DOE ID DELAY ••••••. ••• e • • •

Regina and Thompson, B.C. Court of Appeal
October 1983 Victoria Registry 109/83

......

32

- iv -

Page
OBLITERATED IDENTIFICATION HUHBERS - PRESUMPTION 'DIAT
CAR IS STOLER AND 'DI.AT POSSESSOR ICHOWS 'DIAT ••••••••••••••••••
Re Boyle and The Queen, 5 c.c.c. (3d) 193
Ontario Court of Appeal
IS POSSBSSIO.tl OF MARIJUABA A LESSER AND IHCWDED IH
CULTIVATlfiG. ~? •••••••••••••••••••••••••• •~• • • • • • • • • • • •

Regina v. Powell, B. C. Court of Appeal, CA 000363
Vancouver, November 24~ 19S3

33

35

- 1

CHARTER OF BIGHTS AND FREEDOMS
WK.ITS OF ASSISTANCE - KEASONABLE SEAR.CH
Regina v. Cuff CC821838 June 1983

County

Court

of

Vancouver,

Vancouver

Registry

The accused, Cuff ~ {a known trafficker in heroin) was, according to
informants, again plying his trade despite a previous conviction for
this practice.
As a result of this information, the accused was
placed under surveillance.
He was seen to meet a man and proceeded
home via a round about route.
It was decided that the accused
probably had taken a delivery of narcotics or drugs and was approached
by police while he was still sitting in his car in his own driveway.
He was pulled out of the car through the open window and his mouth was
searched in the usual fashion (All of this happened in "bli tz-krieg"
style before the accused had time to shut off the engine or secure the
transmission.
While Cuff was saying "ah" to the officers in the
driveway, his car went home on its own but failed to stop when it
reached the back wall of the garage).
Nothing was found on the
accused. An officer with a Writ of Assistance was called in and the
house was searched.
Police controlled the residents of the home (unfortunately the officers testified that they 'detained' these other persons) while the
search was conducted.
During the search a bargain was struck with
Mr. Cuff. He was promised that no charges would be preferred against
anyone else in the house if he would tell them where he had the
heroin.
Cuff accepted and led police to his now well ventilated
garage where behind a wooden board he had a quantity of the narcotic.
This led to further bargaining.
Cuff was promised that no charges
would be laid in respect to his "possession of the heroin for the purpose of trafficking" if he would "get a Mr. X along with one ounce of
heroin". Although Cuff, in his attempt to get Mr. X, supplied useful
information to police, he failed to meet the objective of the deal.
As a consequence he found himself charged with possession for the
purpose of trafficking.
During his trial some very interesting points were raised by defence
counsel who claimed that the evidence of the heroin should be
suppressed due to several violations in respect to the Charter of
Rights and Freedoms.
He also urged the Court; in the alternative,
to enter a stay of proceedings as the case amounted to an abuse of the
process of the Court.
In regards to the abuse of process the defence claimed that the
accused faced the charge because he failed to nail the bigger fish
(Mr. X) for the police but not because he was in possession of heroin.

- 2 -

In support of this argument defence counsel cited the well known
Smith* case.
Smith had made a deal with police also.
In return for
surrendering a cache of dope to police he would not be charged in
respect to dope he was found to be in possession of.
Police kept
their word but charged him with conspiracy in regards to possession of
the cache of dope.
The Supreme Court of this Province found the conspiracy charge against
Smith, in view of the deal, an abuse of the process of the Court.
An ordinary man, after having made such a deal would feel safe and be
astounded when, after having lived up to his part, charges of
conspiracy could be proceeded with, said the Supreme Court Justice.
The County Court Judge, held that the circumstances in this Cuff case
were distinct from those in R. v. Smith.
Police had pledged not to
charge anyone in the house and they didn't.
The foregoing of the
charge against Cuff for possession for the purpose, was conditional on
him get ting Mr. X, the bigger fish.
He didn't and police went ahead
with the charge.
The Judge concluded in R. v. Smith police had not
lived up to the bargain but in this case they did and therefore he
found that there was no abuse of the process of his Court
This left the Court to deal with the claims that police had offended
the Charter of Rights and Freedoms.
If those violations, if any,
would bring the administration of justice in disrepute, the evidence
of the heroin would have to be suppressed.
The alleged violations
were as follows:
1.

The accused and those detained in the house during the search had
been denied their right to counsel; and

2.

The use of the Writ of Assistance to search the home and
detain all those persons found in the home constituted
unreasonable search.

to
an

The Court was quite exhaustive in giving reasons for judgment and
explored the law as it was before the Charter became effective and
what it has been since.
The assurance to be secure against
unreasonable search and seizure is new and was not found in the Bill
of Rights (1960).
Therefore, Writs of Assistance and their use were
seldom challenged in the Courts.
However, the judiciary and various
authors were in the pre-Charter times not silent on the subject. The
writs were issued by the Federal Court to officials and R.C.M.P.
officers under the Food and Drug Act, the Narcotic Control Act and the
Customs Act.
The Judges of that Court have been very vocal at times
when an application, or for all intents and purposes, an order to
issue a Writ was before them.
In January of 1978 I wrote a synopsis
of one of these judicial objections to the law by Mr. Justice Collier.

* Regina v. Smith CRNS Volume 30 p. 383

- 3 -

To understand some of the arguments that surround the infamous Writ of
Assistance, it seems apropos to insert that synopsis here:
Writs of Assistance 34 c.c.c. (2d) 62 Federal Court Trial Division
The Federal Minister of Justice applied to the
issue a Writ of Assistance to an officer of
Excise Investigation Division.

Fe~eral

Court to
the Customs and

Mr. Justice J. Collier, then a "newcomer" to the Federal Court,
entertained the application and was apparently shocked and dismayed with: the lack of judicial discretion; the wide and sweeping powers such a writ gives to the officer; and the fact that
the application was void of any facts which might indicate the
reason for the officer's need for such a writ ~
The Justice's
research revealed that a person who exercises the powers conferred on him by a Writ of Assistance, exercises powers given to
him by Statute rather than executing a judgement by the Court as
is the case with a search warrant.
The Minister of Justice or
the Minister of National Health and Welfare can apply to the
Federal Court for a Writ of Assistance to be issued to a specific
"officer".
The Court, upon being satisfied that the person is
"an officer" has no alternative but to issue the Writ.
The Justice agreed with Justice P. Jackett's response to an identical application in 1965. He also objected to this procedure.
The Customs Act stipulates that a Justice of the Federal Court
may issue a Writ of Assistance upon application of the minister
mentioned above, while the other Acts stipulate that he shall
issue the Writ upon application.
The "may" is meaningless as
there is nothing upon which to base any judicial discretion.
Even i f it was up to the judiciary to determine i f there was a
need for the officer to have a Writ» or i f the officer was a
suitable person to exercise the wide powers of search all through
his career without a limit, the exercise to determine these
things would be useless. How can you determine that the officer
will properly exercise his immense power 10 or 20 years from now?
Mr. Justice Collier, granting the applicat!on, protested the wide
powers the Writs give, the impropriety for any person to be
clothed with such immense powers and the seeming perpetuity of
"these untrammelled" writs. He was mindful of the recent abuses
of power by the executive branch in the U.S. which more than anything motivated him to remind us of ministers who may apply for
the Writs for persons to use them for political, administrative,
social or economic reasons.

- 4 -

The County Court Judge was in total agreement with these views and
added his own observations.
He reminded that when a Writ of
Assistance is used to search, the contraband seized does not have to
be taken before a justice as is the case with a search warrant; the
search can be carried out any time while a search warrant, unless it
specifically states otherwise, may only be executed during the day,
etc. He concluded:
"In my view, the use of the device of a Writ of Ass is tance
clearly offends section 8 of the Charter".
He also held
"Reading section 8 and section 52( 1) of the Charter of
Rights and Freedoms together, I find tha t Section lO(l)(a)
of the Narcotic Control Act is inconsistent with the
provisions of the Constitution and, in the words of
section 52(1), to the extent of that inconsistency, of no
force and effect'"·
The Judge said to be mindful that
"The detection of criminals is not a game to be governed
by the Marquis of Queensbury Rules"*
but conunented that the Writ of Assistance was used in this case while
there was sufficient time to obtain a search warrant from a justice.
He was firmly of the opinion that
" ••• the law without section lO(l)(a) will not be any less
e ffectively enforced by the police.
Where there is time
and opportunity to obtain a judicial warrant and one is
not obtained, where t .h ere is a detention of innocent
people without any warning by virtue of the use of such
writ, where there is no power of judicial review in the
first instance, then I think the answer to the question of
whether this conduct would bring the administration of
justice into disrepute becomes self evident".
In the circumstances as they were here, the evidence
inadmissible on account of an unreasonable search.

was

ruled

Accused acquitted

In this case the defence raised a number of issues at the
Comment:
conclusion of the trial, one of which was the "abuse of the process of

* Mr. Justice Horner in Rothman v. The Queen (1981) 59 C.C C. 74

- 5 -

the Court". When a judge finds that there is such abuse he can remedy
it by ordering that the proceedings be stayed.
Usually when that
issue is raised it is dealt with first. Afterall, if there was abuse
of the process and the proceedings are stayed all the other submissions are superfluous.
In this case however, the Court found that there was no abuse as the
Crown had lived up to its word in that it had not charged any other
person who was in the house at the time of the search and as it would
not charge the accused if he set up Mr. x. He failed and got charged.
Firstly, it was not the Crown that made the commitments to the accused
but police.
The two are by no means synonimous.
However, for the
purpose of the issue at hand the distinction may well be academic.
It is the second "deal" police made with the accused that is of interest.
Whether or not they lived up to their commitments may make the
matter not any less an abuse of the process. What, in principle, is
different in the "deal" made here or the referring of a charge when in
the first instance resulted in & "diversion contract".
In 1978 the
Supreme Court of this Province refused to order a Provincial Court
Judge to try a Ms. Jones* after he had stayed the proceedings.
Ms.
Jones had breached the diversion contract she entered into to avoid a
charge related to possession of a narcotic.
The Provincial Court
Judge had held that the matter was before him because she breached the
contract and not because of possessing the narcotic. Needless to say
in the Jones case there was more in issue than in this case, the
system had been short circuited by the executive branch of government
exercising a function exclusively assigned to the judiciary. The fact
still remains that the breach of contract was what offended the Crown
and not the original alleged offence.
In essence the accused Cuff was before the Courts because he did not
get Mr. X and not because he possessed heroin. When a person, because
he refuses or is unable to make restitution to his victim, is charged,
it must be assumed that the kernel of the State's indignation is the
refusal rather than the crime by which the harm or damage was caused.
Many arguments are possible to show that these instances are distinct
from one another but not in the basic criterion for an abuse of process for not living up to a '"deal".
Consider that, in the case of
Ms. Jones, there wa.s a deliberate breach of her diversion contract.
Yet her being consequently charged was considered an abuse of the
court's process while in the case of Mr. Cuff, who may have done his
darnedest to set up Mr. X but failed, the process was not abused.
However, Courts have been generous in allowing police considerable
latitude to ferret out crime.
Perhaps this Judge was generous or
wanted to get around this obstacle to deal with the Writs of
Assistance which, no doubt, is a more interesting topic.
* R. v. Jones 3 W.W.R. [1978] 271

- 6 -

Another point to ponder is i f this Court held that the search was
unreasonable because the Writ was used or because the Writ was used
while there was time for a judicial warrant.
I think the former is
the case.
On page 13 of the reasons for judgment, the Judge begins
his very interesting views and version of the Writ's history and its
constitutionality by posing the following question:
"Now, is the use of a Writ of Assistance a violation of the Charter of
Rights simplicites?"
On page 19 he concludes that the provision in
section lO(l)(a) of the Narcotic Control Act to search with a Writ of
Assistance is so out of step with the Charter that it is of no force
and effect. On the same page the judge concludes:
"In my view, the use of the device of a Writ of Ass is tance
clearly offends section 8 of the Charter".
I would suggest that he answered his own question with "Yes".

Another matter of interest is the Judge's views of police holding
innocent people in custody without warning or access to counsel while
they conduct their search.
I think the word "reasonable" plays a
major role in the control of people during a search of premises.
Many times the Courts have dealt with this question.
One case I
remember reading (but cannot cite) was by a Court of Appeal on
whether or not police officers had been in the lawful performance of
their duty when they controlled the persons who were, at the time the
search began, at tending a party at the premises.
To the best of my
recollection, police were looking for stolen jewellery.
The Court
held that the search was legal and would have been totally frustrated
if people were allowed to mill around and come and go as they
pleased. It was held that if police had been reasonable in the length
of time they inconvenienced and treated the guests they were in the
lawful performance of their duty. The control over the occupants was
essential and was an ancillary _power to the search.
It seems that if the control of the occupants of the house was
reasonable, there would not have been an abuse of power. Of course,
the Judge held that the Writ was illegal to use and this perhaps made
also the control unlawful.

** * * *

7 -

FALSE IMPRISOllKERT

Re Butt v.
Division

Saint

and

Loveless,

Newfoundland

Supreme

Court

Trial

Mr. Loveless was on his way to his girlfriend's, when he saw a man
coming out of a beauty salon.
When he returned shortly after the
police were at the beauty shop investigating an armed robbery.
A
young man who had his face covered with a ski mask had used a handgun
to persuade the lady in the shop to turn the contents of the cash
drawer over to him. Mr. Loveless gave police a description of the man
he saw leaving the shop and it matched closely the description t.he
"lady" gave of the robber. Loveless accompanied police to the station
and was given a book with mug shots and he identified the person he
saw coming out of the shop.
The description of the person in the
picture and that given by Loveless and the "lady" were very close.
However, as it turned out the person in the picture was arrested just
a few hours before the robbery took place.
Police asked Mr. Loveless to notify them should he spot the robbery
suspect. A couple of weeks later Mr. Loveless phoned police to say he
was in a shopping mall and he had spotted the young man he saw coming
out of the store. Although the suspect had flown the coop when police
arrived, his name was obtained from a shop where he had done some
business.
This person was the 18 year old Mr. Butt, who lived with
his parents close by the beauty shop. A search warrant was obtained
and executed.
Nothing was found that connected the suspect to the
robbery, but it was discovered that Mr~ Butt Sr. had a gun collection
and Mr. Butt Jro did closely resemble the description given by the
"lady" and Mr. Loveless on the day of the robbery.
Mr. Butt Jr., (the plaintiff in the consequential litigation against
the police and Mr. Loveless) was asked to accompany police to their
office. He was placed in the rear of the police car which had inside
door handles.
As a matter of fact, Mr. Butt left the car briefly
prior to it being driven off, to consult with his father.
At the
police station Mr. Butt was placed in an interview room and was left
alone there for some time.
The room could not be opened from the
inside without a key.
After this, Mr. Butt was placed in a "line-up" and was positively
identified by Mr. Loveless as the person he saw coming out of the
beauty salon on the day of the robbery.
The "lady" also identified
Mr. Butt, as he had a height, weight and hair colour identical to the
man who robbed her.
As a result Mr. Butt was arrested for armed
robbery and a few hours later taken before a Provincial Court Judge
who remanded him to the following morning for a bail hearing which
resulted in the release of Mr. Butt.

- 8 -

Although it all seemed clear sailing from there on in, the Crown did
Th)t have filUCh Of a Case left When it WaS diSCOVered Subsequent tO this
investigation that the star witness, Mr. Loveless, was recently
convicted of armed robbery and was awaiting sentencing. Mr. Loveless
approached police after Mr. Butt was charged and said to expect some
representation to the probation officer who was preparing his presentence report. Furthermore, Mr. Loveless also expected the money he
claims was offered to him by the investigating officers.
Needless to say, Crown Counsel had a problem and Mr. Butt who elected
to be tried by Judge and Jury, was dismissed at the conclusion of the
preliminary hearing. Mr. Butt then petitioned the Supreme Court to be
compensated by the police officers and Mr. Loveless for false imprisonment (for the period from accompanying police from his home after
the search until he was released on bail on the afternoon of the
following day) and malicious prosecution.
The Supreme Court dismissed the claim of malicious prosecution as it
had not been without reasonable cause. However the Court awarded Mr.
Butt $500 for false imprisonment.
The Justice found that only the
period that Mr. Butt was held in the interrogation room was imprisonment for which there was no authority without firstly arresting him.
Police were in a position to have made an arrest but had not done so.
In everything that happened during the investigation, Mr. Butt was a
co-operative and voluntary participant who did not need to be and was
not to be restrained. Said the Supreme Court Justice:
"For their own protection the police should make it clear
to any witness, particularly a suspect, that he or she is
free to leave at any time.
Whether they do so or not is
their own business.
More important than that, however,
where a person is not under arrest whether he be a suspect
or not he must not be kept behind locked doors without his
consent.
The doors of the interrogation room should have
been left open or unlocked. They were not".
The Court concluded that police had acted properly with the exception
of that brief period of incarceration in the interview room.

* * * * *

9 -

POSSESSION OF ADTOMOBILE HASTERKKY
IS A COAT BANGER. INCWDED?
Regina v. Young l c •.C.C. (3rd) 395
Ontario Court of Appeal

The accused was found standing next to a car in the underground parking lot of an apartment ccmplex.
When a security guard appeared he
ran.
When apprehended he was found to be in possession of a coathanger bent and twisted in such a way that it could he used to unlock
cars by pulling up the door latches.
The accused was consequently
tried for possession of an automobile masterkey contrary to section
311 C.C. and acquitted. The Crown appealed o
Section 311 C.C. prohibits the possesslon and sales of masterkeys for
automobiles other than by persons licensed and audited by the Attorney
General of a province.
The Court of Appeal held that the Ontario
Attorney General was not likely to issue licences and administer the
distribution of coathangers.
The gadget the accused 'fabricated was
obviously not covered by the section despite the inclusion of the
words "or other instrument designed or adopted to operate locks of
motor vehicles" in the definition of masterkey.

Crown's appeal dismissed
Acquittal upheld

*****

-

10 -

POSSIBLE BREATHALYZER FLAW
EVIDEMC~ TO THE CONTRARY?
Regina v. Stewart - County Court of Yale, Penticton Registry No. 4/83
(349) May 1983

The officer asked, "Do you know why you are stopped?" and the accused
had replied: "Because I'm impaired".
A while later the Borkenstein
breathalyzer confirmed this and readings of 180 and 160 mlg. were
obtained.
Yet the accused was acquitted of "over 80 mlg", and the
Crown appealed.
The Crown, of course, relied on the provisions in section 237 c.c.
which state that the results of analyses done within two hours of
driving are, in the absence of evidence to the contrary, proof of the
accused's blood-alcohol level when he drove. The defence had subpoenaed a pharmacist employed in the R.C.M. Police Laboratory.
The day
after the accused was tested the manufacturer of the Borkenstein
breathalyzer issued a bulletin warning that the instruments "may be
affected in an unpredictable manner by various radio frequencies and
power levels, which might affect the result of any test by such a
machine". The lab technician had immediately experimented. He said:
• holding a portable transmitter close to the breathalyzer, the affect is of the nature of a hundred milligrams percent on that breathalyzer but by placing my hand
just in the path, it was reduced to zero".
He concluded:
". • • so the problem is a hyper-variable problem.
erratic and unpredictable in that sense".
The Crown had not
accused's breath.

tested

the

breathalyzer

used

to

It's

analyze

The County Court Judge held:
• it was not unreasonable for the trier of facts in
this case to find a reasonable doubt based on those tests
done by that expert"

Crown' s appeal was dismissed
Acquittal upheld

*****

the

- 11 -

IS A VOIB. DIRE AN IHDEPENDEHT TRIAL
Regina v. Morris, County Court of Prince Rupert, May 1983, No. C.C.
10/83 Terrace Registry
A police officer went through the regular routine of giving evidence.
He identified the accused and a little further in the evidence the
Court conducted a voir dire to determine the admissibility of a statement the accused gave to the officer.
The trial Court had refused to give the statement any consideration to
reach a verdict, because the officer had failed to identify the
accused in the voir dire. The Judge held that a voir dire is an independent trial and the failure to identify the accused during that
trial meant that there was no e-'7idence that the accused in the main
trial and the pe:cson who gave the statement were one and the same.
The Crown appealed this decision.
Quoting from other reasons for
judgement* on this issue the County Court held, "that it is not necessary that there be a repetition of identification evidence within the
voir dire itself or indeed that such identification evidence must
precede the voir dire so long as at some point in the trial the statement is unquestionably linked to the accused".
Crown's appeal allowed
New trial ordered
* * * * *

* R. v. Hartley 1980 Vancouver Registry CC 791609

- 12 -

WHAT IS THE MEANING OF •FRAUDULEN'r-?
Regina v Dalzell 3 c.c.c. (3d) 232
County Court of Halifax
The accused was observed to place nearly $80 worth of merchandise in
her brief case which she had on the bottom of her shopping cart. She
left the cart near the front of the store, took her briefcase and
walked out. She was apprehended by the store security person.
At her trial for theft under $200, the accused testified that as a
mature student she was assigned to work in a community program known
as "Save the Children". The program was similar to "Scared Straight"
to deter juvenile delinquency.
Part of this program was involvement
in a "Stop Lift" project designed by local merchants and police. The
information she received from the children, who all had at least one
conviction, indicated that the "Stop Lift" did not work. The alterations she had suggested to the project were rebuffed. The accused had
become emotionally involved in her crusade and to prove tb the merchants that there was a better way to reach their objective she set
out to demonstrate that their program was no good. She testified how
she intended to go to stores,
". • • take items, leave the store, list them and go back
and say to the manager, or whoever was in charge, now will
you listen to me - I have an alternative. It might work".
The Provincial
appealed.

Court

Judge

acquitted

the

accused

and

the

Crown

The County Court held that the accused's explanation was not rebutted
and must be believed. Therefore it must be determined if a person who
carries away property with the intentions the accused had, does commit
theft. Said the Court:
• • it would take a very rigid mind to characterize her
conduct as dishonest or immoral other than in the sense of
grossly imprudent".
The kernel of the question remaining is whether depriving a person
"temporarily" of property in circumstances as these is "fraudulent" as
these words are used in the definition of theft (section 283(1)
C.C.).
The first one was no problem; since 1955 the words
"temporarily or absolutely" replaced the word "permanently" in regard

- 13 -

to depriving an owner of property.
Whether the taking was "fraudulent" created a greater problem.
The definition exempts persons who
take property with a "Color ot right".
This simply . means that a
person has an honest belief that the property is his, or that he has a
right to it or that the owner has consented or will consent to the
taking of it. Needless to say that.if there is a color of right the
taking is not fraudulent.
The accused without telling what she intended to do, had phoned the
store manager and asked him about his policy regarding shoplifters.
He had said that if there were no extenuating circumstances the shoplifter would be given a warning only, provided they returned the
goods.
Ac ting on this belief the accused had gone on her crusade.
This, the defence claimed amounted to color of right in that the
accused had an honest belief that if she returned the goods, the owner
consented.
However, the evidence designed to show that such phone call was made
by the accused was "fuzzy" and of no consequence.
Furthermore if
there was sufficie1'.t proof of such a call it would not amount to
consent to take goods out of the store but merely some statement of
"no prosecution" policy.
Just because one states that he would not
prosecute his assailant if he was punched in the nose does not mean he
consents to the assault.
The accused simply did not take the merchandise with any colour of
right and the interesting question arose if there is any validity in
saying that though taking something with a colour of right is not and
cannot be fraudulent, can something done without colour of right not
be fraudulent. In other words, does it always follow that when sotne='
thing is done without colour of right that it is then automatically
done fraudulently?
If something like in this case is done unwisely,
with naivity, or to put it bluntly, stupidly, is it then done fraudulently?
In reviewing the laws related to larceny as far back as the Roman law
it was concluded that
". • • fraudulently in s. 283 means a dishonest state of
mind, leading to a dishonest intention to appropriate the
property taken, i.e., to act with respect to it as if the
taker were the owner although perhaps only the temporary
owner."
In the circumstances, it could not be said to be beyond reasonable
doubt that such were the dishonest intentions of the accused.
Crown's appeal dismissed
Acquittal upheld.

*****

- 14 -

WHO DECIDES TO PROSECUTE?
Dawson v. The Queen, Supreme Court of Canada

October 1983

A criminal dispute is between the alleged perpetrator and the Sovereign. When the state, on behalf of the Sovereign, refuses to take up
the cause that may not be the end of the matter. At common law, any
person or peace officer may, on behalf of the Sovereign, inform under
oath a Justice of the Peace of the commission of a crime (private
prosecution). When this happens the Justice of the Peace shall hear
and consider (ex parte) if a case is made out.
If there ls he must
issue process Tsummons or warrant compelling the appearance of the
accused).
The Attorneys General of the provinces have the supervisory power over
criminal prosecutions and have a right to prevent the use of the criminal process. Therefore, they were given the power to order a stay of
any criminal proceeding.
Such order cannot be appealed and the
Attorney General's accountability for such action is strictly political and to the Legislative Assembly.
In this

case Mr. Dawson went before a Justice of the Peace and
nine criminal charges against a police officer.
As the
Justice of the Peace was to conduct the mandatory hearing whether to
issue process (a summons or warrant) the agent of the Attorney General
directed that an entry be made on the record that the proceedings be
stayed. t1r. Dawson appealed the Crown's right to do so and last. He
eventually was heard by the Supreme Court of Canada which decided
unanimously:
preferr~d

"When the proceedings are commenced by an information, the
informant in a sense prefers the information and the
J ustice of the Peace decides whether or not to find the
information and then the next step is to issue the process
to bring the accused before him.
"The Attorney General's power to stay starts as of the
moment a summons or warrant is issued".
In relation to make a distinction for summary conviction of fences and
indictable offences, the Court held that such disparity was undesirable and could not have been intended by Parliament considering the
relevant legislation and its historical development.
The Supreme Court of Canada allowed the appeal and ordered that the
Justice of the Peace conduct a hearing pursuant to s. 455.3 c.c. of
the Criminal Code.

*****

- 15 -

PllOTECTIOH OF PllIVACY
RENEWING Alf AUTBOllIZA.TIOM ARD ll>T DISCLOSING
THAT ADDITIONAL CllllfiRAL ACTIVITY VAS ~IS!:OVEREP
The Queen v. Comisso Supreme Court of Canada

October 1983

Police were authorized to intercept the accused's private communication on grounds for believing that he was dealing in heroin. Towards
the end of the period for which the authorization was issued the
communications indicated that the accused had possession of counterfeit money. Police told Crown Counsel and asked that this additional
criminal activity be added to the authorization when it came up for
renewal.
The prosecutors decided that this was not necessary.
The
accused was subsequently convicted of possession of counterfeit money
mainly due to evidence directly and indirectly derived from the wire
tap. He successfully appealed this conviction to the B. C. Court of
Appeal* which held that if evidence of a crime other than the one for
which the authorization was granted, is ~~vealed unexpectedly in lawfully intercepted communication, the evidence is admissible. However,
where there is sufficient time to add this offence to the authorization or particularly where it is not added at renewal while it is
known at that time, the evidence is inadmissible. The B. C. Court of
Appeal upheld the acquittal.
The Crown appealed this decision to the Supreme Court of Canada which
stood divided on this issue but decided 5 to 4 to allow the appeal and
restore the conviction. Since the trial section 178.16(3.1) c.c. was
added to the Privacy Act and both counsel took a position on the
meaning of that section tmich seems to say that evidence obtained from
a lawful interception of private communication is admissible whether
or not the proceedings are related to issues or matters other than
those specified in the authorization.
Crown Counsel claims the se~tion 111eans that such evidence is admissible regardless what the charge is.
Defence counsel claims that
renewal means an assessment of the authorization and keeping the new
information from the issuing judge is like obtaining the authorization
by false pretences which makes it nul and voia.
This, he claims, is
not included in the new section which only deals with "windfall"
evidence, in other words, unexpected evidence.
In finding for the Crown, the Supreme Court of Canada did ~ say,
that where
intercepted communications have revealed additional
criminal activities it is alright to withhold that information from
the judge when applying for a renewal of the authorization

* 66 C.C.C. (2d) 65 - also see Volume 9 of this publication, page 6.

- 16 -

The Privacy Act stipulat es that when applying for a renewal, police
and Crown must, among other things, inform him of "any information
that has been obtained by any interception". (Section 178.13(3) C.C.)
Since defence counsel conceded that the renewal was legally obtained
the majority of the Supreme Court Justices held:
". • • this case must be decided on the assumption that
the judge was informed through the affidavit of what was
heard as regards that offence (possession of counterfeit
money).
It might well be, though this need not, should
not and is not decided on this appeal, that if the police
on a renewal, were not to reveal such information in this
affidavit, the renewal might have been obtained irregularly, the subsequent interceptions unlawful and any evidence
obtained through such interceptions may be inadmissible,
be it evidence of the offence stated in the authorization,
or a fortioci*, of any other offences, subject, of course,
to the descretion given judges under the section to admit
unlawfully obtained evidence".
In addition, the Supreme Court held that evidence of offences for
which no authorization can be granted (see 178.1 C.C.) is also admissible if it was obtained by means of a lawful interception.
Conviction restored

* * * * *

* With stronger reason; much more - logic to denote that if one fact
exists, therefore one included but less improbable must also exist.

- 17 -

CAN •plJFFs• AMOUNT TO A SAMPLE OF BREATH?
Regina v. Adkin, B. C. Court of Appeal, No. 204/82

September 1983

According to a police witness who was present in the breathalyzer
room, the accused gave three "puffs". of breath, the aggregate of which
was a sample and was analyzed.
The second sample was provided and
analyzed in the same fashion.
The Provincial Court Judge held that,
due to the puffs, there was evidence to the contrary that the blood
alcohol level at t:he time of analysis was the same as that level at
the time of driving. He considered that the "puffs" amounted to evidence that more than two samples (as certified) were taken. A County
Court Judge reversed the Provincial Court decision and the accused
took the matter to the Court of Appeal which concluded:
"Evidence that the appellant puffed several times during
the taking of a sample, did not provide any basis for
concluding that more than two samples had been taken. The
appellant could not, on the facts of this case, assert
that the certificate was unreliable because there was no
evidence of any lower reading than those referred to in
the certificate".

*****
"GIVING A JlEASORABLE NOTIO! OF INTENT
AND A COPY OF THE CKllTIFICATE..
Regina v. McGuire, B. C. Court of Appeal, September 1983
The accused was processed for impaired driving and at the conclusion
of the tests, served with a true copy of the certificate of analyses.
He was then arrested for a. completely different matter and booked in
cells.
The certificate of analyses was taken from him and police
testified that it is routine that all personal belongings are returned
to any prisoner upon his release. ~wever, no one could specifically
say that the accused was upon his release given the copy of the certificate again.
At t::-ial, the accused argued, of course, that the
certificate of analyses was inadmissible as there was reasonable doubt
that he possessed the copy for a time sufficient for him to take
notice of its content. This issue eventually ended up in the Court of
Appeal which agreed with the Judges who dealt with this question
before, that it ought not to be presumed that the certificate was not
returned to the accused upon his release. "A reasonable doubt cannot
be founded on speculation".

*****

- 18 -

1.
2.
3.

CAN EVIDENCE OF PRIOR DRIVING LEAD TO FINDING CARE OR OONTROL?
DOES A •DEMAND• CAUSE 1llE SUBJECT TO BE DETAINED?
MUST A FAILURE TO INFORM THE SUSPECT OF KIGHT TO OOUNSEL IF HE IS
DETAINED, RESULT IN EXCLUSION OF CERTIFICATE IN EVIDENCE?

Regina v. Hatter:
25979, June 1983

County Court of Vancouver Island, Victoria Reg.

No.

At 1: 25 two officers attended at the scene of an accident in which the
ace used' s car was totally destroyed. The accused was not in his car when
the officers arrived. He admitted that he drove his car at the time of the
accident; that he had been drinking, and had nothing to drink since the
accident.
He was consequently convicted of "over 80 milligrams" while
having the care or control of (instead of driving) a motor vehicle. This,
apparently, as the Crown had no evidence at what time the accident had
happened and hence i t could not be established at what time the accused
drove. The accused appealed. The Crown's position was that the accused had
care or control of his car (by then a wreck) when the officers came on the
scene.
The samples of breath were analyzed within two hours of that time
and therefore the certificate of analyses was admissible, argued the Crown.
The defence submitted that the only evidence of care or control was when
the accused had the accident and that standing beside one's totally demolished car does not amount to care or control.
The County Court Judge
responded:
"The appellant obviously had the care and control of the
vehicle at the time of the accident.
Whenever that may have
been, and I do not think that that care or control ceased at
the moment the accident occurred"*·
The officers had made a demand of the accused to provide samples of
breath.
He had complied, gave the samples as required, was driven home,
The officers did not at any stage of
and issued an Appearance Notice.
these events inform the accused of his rights to retain and instruct
counsel. This, defence counsel claims, should result in all the evidence
subsequent to the demand being inadmissible**·
The Court disagreed and held that the decision by the Supreme Court of
Canada in Chromiak applied, despite the fact that Chromiak was demanded to

*
**
***

See Reasons by Supreme Court of Canada in Saunders v. The Queen (1967)
3 c.c.c. 278.
See R. v. Morrison Volume 12 p. 16 of the Publication and R. v
Davignon Volume 11 page 2 of this publication.
R. v. Chromiak (1979) 12 C.RT. (3d) 300. Also see Volume 1, page 3 of
this publication.

19 -

only give a sample "at roadside" where this accused was demanded to
accompany the officers. Being arrested or detained is a requisite to being
informed of right to counsel and the Court held that being "under demand"
does not necessarily mean the suspect is detained.
However, should being under demand amount to detention, in this case the
administration of justice was not brought into disrepute by admitting the
evidence.
Accused's appeal dismissed
Conviction upheld

*****

- 20 -

FAULTY APPEARANCE NOTICE - DOES COURT LOSE JURISDICTION?
Kennedy v. The Attorney General of B. C.
September 1983
)

B. C. Court of Appeal 11820742,

\
A police officer served an Appearance Notice on the accused.
Everything
was filled in except where to appear.
The notice was confirmed, and an
information sworn.
The accused failed to show and the information was
struck off the court list. Later the Justice of the Peace issued a summons
with which the accused complied.
He entered a plea of not guilty and
promptly applied for and was granted a Court order prohibiting the Provincial Court Judge from proceeding.
The Supreme Court held the Provincial
Court had lost jurisdiction over the information. The Crown appealed this
decision to the B. C. Court of Appeal which held that the defect in the
process by which the accused was brought before the Court is irrelevant to
the validity of the information.
Provincial Court was ordered to
proceed

* ****

- 21

URKEASOIIABLE SEAJtCH

EXCLUSION OF EVIDENCE
Regina v. Gladstone, County Court gf Vancouver
821480 June 1983

Vancouver Registry

cc

The accused arrived at the Vancouver airport on a flight from Lima. He did
fit the description of a possible drug carrier in relation to whom the
Customs Officers had received an alert.
The Customs Act states that Customs officers may search a person who comes
into Canada from a foreign country if the officer has reasonable cause to
suppose that the person has contraband secreted upon his person.
The accused was taken into a "search room". He was given the above search
provision to read. He said he understood its content and then consented to
a body search. A "considerable quantity" of cocaine was found on him.
At his trial for importing, the accused argued that the coca!ne should be
inadmissible in evidence as the provisions of the Charter of Rights were
not obs2rved.
Firstly, he claimed that as the search was not warranted in the circumstances, it was unreasonable and contrary to section 8 of the Charter.
Furthermore, the accused had not been promptly informed of his rights to
counsel. He. therefore 0 suggested that the remedy for these constitutional
wrongs was the exclusion of the evidence "lest the Administration of
Justice be brought into disrepute".
The accused was also told that should he not consent to the search he could
be taken before the chief officer at the port, or a justice of the peace,
who, if a search was considered justifi~d, could order the search.
In
other words, the accused was offered to have the grounds the officers had
to search, judicially tested for adequacy.
He had waived that right and
had with an operating mind cov..sented to the search.
However, the search
was conducted prior to tha accused being informed of his rights to counsel.
The County Court replied that the information on the law and the options
the accused had under the enactments were so c1early and accurately stated
and explained to him that an imbicile could have understood them. A lawyer
could not have improved on it and would only have been able to advise his
client that the decision on the options were for him to decide. Said the
Court:
"Indeed to exclude such evidence as is before me now,
would in the eyes of sensible folk everywhere, make the

- 22 -

administration of justice the butt of more than disrepute
• • • it would be r-egar:-Jed with derision, and rightly so.
The essence of justice is even handedness even the gener:-al
public has its r:-ights, one of which is to have criminals,
after a fair trial and investigation, brought to book. It
is always a matter of balance".
The Judge concluded that indeed the officers should have informed the
accused of his right to counsel, but the wrong was in these circumstances
slight and totally out of proportion with the remedy suggested by the
accused.
Cocaine
dence.

* * ** *

was

admitted

in evi-

- 23 -

ATTEMPT SUICIDE AMOUBTING TO MURDER - TRANSFERRED IRTERT
Re Brown and The Queen, Ontario High Court of Justice, February 1983
4 c.c.c. (3d) 571
When a person has the specific intent to take the life of another person,
but by mistake kills the wrong individual, his intent is legally transferable and he can be convicted of murder the same had he killed his intended
victim. This is provided for in section 212(b) c.c. which states that such
accident or mistake causes such homicide to be murder notwithstanding that
he did not mean to cause harm or death to his actual victim. The requisite
to the transferred intent is, of course, that the killer intended to take
someone's life - what about if that life is his own?
The accused murdered his wife and child and wanted to end his own life as
well. He drove at a high speed on a highway and deliberately drove head-on
into an oncoming car killing it's lone occupant. He told police at the
scene, "I just wanted to die" and admitted to deliberately have caused the
accident to accomplish that objective.
The accused was committed for trial on a first degree murder charge. He
appealed claiming that the intent was not transferable where the killer
intended to take his own life.
However, the Justice held that when a
person kills someone else when attempting suicide, his specific intent is
transferable.
The High Court of Justice held that there was enough evidence to commit the
accused for trial for second degree murder and ordered the accused to stand
trial for the reduced charge. This as there was insufficient evidence to
show his act had been planned and deliberate.

*****

- 24 -

CHARTER OF RIGHTS AND FREEDOMS
CRUEL AND UNUSUAL PUNISHMENT
Regina v. Smith, County Court of Vancouver
September 1983

Vancouver Registry No. CC821369

Section 5(2) of the Narcotic Control Act states:
"Every person who violates subsection ( 1) is guilty of an
indictable of fence and is liable to imprisonment for life
but not less than seven years".
(Subsection (1) creates the offence of importing a narcotic). The accused
claimed the 7 years imprisonment is "cruel and unusual punishment".
He
argued that the underlined portion of the section is severable from the
rest and that only that portion is unconstitutional.
In addition to it
being contrary to section 12 of the Charter (cruel and unusual punishment)
it also amounts to arbitrary detention claimed defence counsel. Regardless
of the quantity of the contraband, the purpose for bringing it into the
country or how dangerous the substance is, the minimum penalty is 7 years.
A sentence of such duration is seldom imposed.
Therefore, it is likely
that the person bringing in a small quantity of a substance for his
personal use will receive the same minimum penalty as the person importing
a large quantity of a harmful substance strictly for the purpose of trafficking and exploitive profits.
Said the Court:
"Given that situation, the disparity is so gross, it is
shocking to contemporary society, is unnecessary in narcotic control and results therefore, in a punishment which
is cruel and unusual".
Hence the words, "but not less than seven years" are inoperable and a contravention of the Charter of Rights and Freedoms.

* ****

- 25 -

DOES HOVING A CAJl AR DIAPPl.ECIABLE DISTANCE AHOURT TO ·nnvING-?

Regina v. Chessa, B. C. Court of Appeal (No. CA000657) September 1983

The accused drank at a. hotel and reali:i:ed he was incapable to drive home.
He phoned a cab and while waiting for it to arrive he went to check on his
van in the parking lot to ensure it was properly parked and locked.
A
police officer observed th~ accused getting into the van and saw it "lurch
forward", stop and back up over the curb and subsequently move forward
again into the parking position. The accused got out of the van, locked it
up and was apprehended while walking back to the lobby.
The accused was acquitted in Provincial and County Court of impaired
driving and "over 80 ml." as he did not move the 'Jan "an appreciable
distance" and had only driven it from a purely technical viewpoint.
The
Crown had appealed these decisions.
The B. c. Court of Appeal accepted the definition of "drive" as expressed
by the British Lord Chief Justice*: "The essence of driving is the use of
the driver's controls in order to direct the movement however that movement
is produced" (gravity, being pushed or under its own power).
The accused, by moving his van a few feet did drive and the Crown's appeal
was allowed and a new trial ordered.
However, in view of the accused's
commendable and responsible attitude the Justices of the Court of Appeal
expressed hope that no new trial would be conducted

* * * * *

* R. v. McDonagh (1974) 59 C.A.R. 55.

- 26 -

PROOF OF THERE BEING AT LEAST FIFTEEN MINUTES BETWEEN TWO EVENTS
Regina v. Taylor - Ontario Court of Appeal - May 1983

Police certified that a breath sample taken at 1: 12 a.m. resulted in a
reading of "190 milligrams" and that at 1:27 a.m. a second sample showed a
blood alcohol level of "200 milligrams". The question whether such certificate is sufficient to prove that there was an interval of "at least fifteen minutes between the times when the samples were taken" was dealt with
by the Ontario Court of Appeal when the accused Taylor appealed his conviction of impaired driving.
If the answer was "No", then there would be no
proof of the accused's blood-alcohol level at the time of driving. Lack of
additional evidence made the admissibility of the certificate and the
"presumption of equalization" crucial to the Crown's case.
What is unique in this case is that the Crown and defence counsel were both
relying on the same B. C. case for support for their respective arguments
(R. v. Perry ( 1978) 41 C.C.C. (2d) 182 affirmed by the Supreme Court of
Canada in 1980 1 S.C.R. 1124).
In essence, the Ontario Court of Appeal
interpreted the Perry case.
As mentioned above, in this Taylor case the
Crown relied exclusively on the wording of the certificate to prove that
there was a fifteen minute interval between the taking of the two tests.
In Perry, the operator had testified and told when and how he had taken the
samples and analyzed them, to complement the certificate which, like that
document in the Taylor case, gave two moments in time which were fifteen
minutes apart (3:00 a.m. and 3:15 a.m.). The operator's testimony in Perry
showed that "everything necessary to complete the taking of the first
sample had been done by 3:00 a.m. and that nothing in respect to the taking
of the second sample had been done before 15 minutes had elapsed after the
first sample had been taken".
In other words, when the B. c. Courts and
the Supreme Court of Canada eventually, found that there was proof of the
two tests being at least fifteen minutes apart, it did not do so exclusively on the certificate but on proof that the taking of the first sample was
completed at least fifteen minutes before the time at which the taking of
the second sample was commenced.
As a consequence, the Ontario Court of
Appeal held that a certificate which states two moments in time 15 minutes
or even 17 minutes apart is not by · itself proof that the mandatory fifteen
minute interval was complied with. By allowing Taylor's appeal and acquitting him of impaired driving, the Court did not fail to follow the Perry
decision but simply disagreed with the Crown that all it has to do to prove
compliance with section 237(l)(c)(ii) c.c. is to introduce a certificate
that mentions two periods in time which, if you subtract the first from the
second, results in 15 minutes or even more.

*****

- 27 -

The Ontario Court of Appeal advised:
"I should state that, if the Crown intends to 'rely in the
future solely on a certificate of analysis such as the one
relied on in these proceedings in order to prove the
existence of a 15 minute interval b~tween the times when
samples are taken, it will have to be much more specific
in the information contained in the certificate ••••
Indeed, it seems to me, that where you have a certificate
completed in the manner of the one used in the case at bar
where the wording is identical for the time of the taking
of the first sample and the taking of the second sample,
the reasonable interpretation is that both samples were
commenced at the times stated or both samples were
completed at the times stated ••••••
Accordingly, the information in the certificate of analysis should clearly state the time at which the taking of
the first sample was completed and the time at which the
taking of the second sample was commenced."
Note:
In our Province, the Criminal Justice Branch of Attorney General Ministry
has issued new certificates which comply with this judicial advice.
Should you be interested in the details of the submissions made to the
Courts and their respective responses about this apparent simple question
what "a quarter of an hour" is, and how time must be calculated, the
following cases may be of interest:
Regina v. Davis 32 C.C.C. (2d) 459
Regina V o Steiger 32 C.C.C. (ed) 46 1 , and
Regina v. Temble 1 W.W.R. 1977 575
The arguments are philosophical in nature and deal with fundamental
questions such as "when is it 3 o'clock"?
Is it three o'clock for 60
seconds until it is 3:01? The Courts say that when we say "3 o'clock" it
is a precise time "of no duration".
Therefore, seconds become important
when we deal with a specific or "at least" a certain period of time.

*****

- 28 -

"ADMISSIBILITY OF STATEMENTS TO PROVE 'DANGEROUS OFFENDER''"
The Queen v. Boyd, B. C. Court of Appeal, October 1983 - Victoria Registry
26/83

The accused was convicted of indecently assaul ting a six year old girl.
Due to previous similar convictions the CroWn applied at sentencing to have
the accused declared a dangerous offender.
During the hearing such
sentence requires, the Crown adduced statements the accused made to police
during the investigations which had led to the previous conviction.
The
fact that the statements were made by the accused was proved but not their
voluntariness. This caused the Court to reject them.
The Crown successfully appealed this decision and the B. C. Court of Appeal
confirmed the Crown's position.
Statements to persons in authority,
adduced in evidence during a trial to determine guilt or innocence, must
have been made voluntarily to be admissible. In proceedings to determine a
sentence, only the fact that they were made by the accused needs to be
proved.
Crown' s appeal allowed

*****

- 29 -

"COUR.T OF CX>MPETENT JURISDICTION"
CllAltTER OF llGBTS AND FREEDOMS

Between Legal Servicss Society and His Honour Judge L.Cv Brahen of the B.
C. Provincial Court, Supreme Court of B. C. April 1983
An American citizen appeared

befo~e His Honour Brahan charged with counts
of conspiracy to import narcotics and drugs into Canada. The Judge began
to conduct a preliminary hearing but decided that the American was in need
of a lawyer. He was informed that the Legal Aid Society was investigating
the accused's eligibility for legal aid but that this would not likely be
completed for several days.

The Judge then held that the American's rights to retain and ins true t
counsel were being infringed in that he had no means to engage a lawyer to
act on his behalf.
This, the Judge felt, brought the matter within the
realm of section 24 of the Charter which states that an infringement of
Rights or Freedoms entitles a Court of competent jurisdiction to remedy the
situation it "considers appropriate and just in the circumstances".
Considering the Provincial Court to be a court of competent jurisdiction,
the Judge remedied the infringement of the Charter by ordering the Legal
Services Society to provide the American "forthwith" with legal counsel.
The Society applied to the Supreme Court to have the order quashed.
Our Courts are divided into two catagories:
Courts of superior
jurisdiction (Court of Appeal and Supreme Court) and those of inferior
jurisdiction.
Courts of superior jurisdiction can grant injunctions and
generally order certain things to be done despite the fact that there is no
specific legislation providing for such an order. In other words Courts of
superior jurisdiction ce.n go far afield to prevent or remedy harmful or
unjust situations~
However, all courts do have inherent and statutory
jurisdictions, and if an inferior Court wishes to remedy an infringement of
the Charter under section 24, it can only do so by ordering something that
inherent jurisdiction or statute enables it to do. The order issued by the
Provincial Court judge did not fall into this catagory.
Order quashed

Comment:
Subsection (1) of section 24 of the Charter grants a court of
competent jurisdiction to remedy infringements of the Rights and Freedoms
the Charter assures us.
Subsection (2) creates the "exclusionary rule".
At the outset of the Charter's existence defence lawyers petitioned
superior Courts in the middle of trials in Provincial Court, for instance,
to obtain a ruling on the admissibility of evidence. There was a sigh of
relief when Courts of Appeal instructed that the trial court had to make
those decisions, and complete the trial. When a verdict is appealed then

- 30 -

the matter of the admissibility of evidence can be included in the grounds
for appeal.
This warded off the much feared "side tracking" process so
prevelant in the U.S.. With this decision, that monster may be back at the
door of our Court houses.
This time in a different costume.
If an
infringement of a right or freedom is identified in the Provincial Court
and the inherent or the statutory powers of the Judge are inadequate to
remedy the situation, then the case may have to be adjourned and a court of
superior jurisdiction would have to be petitioned.
Needless to say that those who have the funds for this sort of legal
maneuvering may well now have an opportunity for some "side tracking".

*****

- 31

"PRlVATE <X>HMUNICATION"
•REASONABLE TO EXPECT THAT IT WOULD NOT BE IHTEltCEPTED•
The queen v. Samson

Ontario Court of Appeal - June 1983

A voir dire was conducted to determine the admissibility of the accused's
intereepted private communications. The Crown had adduced a statement the
accused uade prior to the interceptions to the effect that, due to his
activities, he considered there to be a real danger that his telephone
lines would be the subject of an authorization to intercept his
communications.
As a personal opinion the Justice
expressed:

who wrote the reasons for judgment

"In these circumstances, I question that it could properly be
said that these communicatons were made under circumstances in
which it was reasonable for Samson as the originator to expect
that they would not be intercepted by any pe~son other than the
person ~-1hom he intended should receive it".
If this opinion is accurate, then all police need to do is create a reason
for a person to expect that his communications will be intercepted.
It
would then follow that his communications are from thereon in not private
(if you can show his belief) and they can be intercepted with impunity and
there should be no barrier to admissibility in evidence.
Interesting question.

*****

- 32 -

JUDICIAL STAY OF PROCEEDINGS DUE TO DELAY
Regina and Thompson - B.C. Court of Appeal - October 1983 Victoria Registry
109/83
In September 1981, the accused was involved in a fatal motor vehicle accident on Vancouver Island. She was injured and went to her parents home in
Alberta approximately a · month after the accident and found work there.
Police continued their investigation of the accident and contacted the
accused in July of 1982 in the course of their inquiries.
In November of
1982 a warrant was obtained for the accused's arrest on a charge of dangerous driving.
In view of the approaching Christmas season the officers did
not execute the warrant or inform the accused of the charge until January
of 1983.
Even then the warrant was not executed and an arrangement was
made between counsel that the accused would come to Vancouver Island and
appear before a Provincial Court Judge in April of 1983 for her preliminary
hearing.
On that day defence counsel claimed that the accused's rights
under the Charter of Rights were violated.
He claimed that the length of
time to lay the charge in addition to the unreasonable delay to inform her
whence the charge was laid, violated her right to be tried within a reasonable time. The Court agreed, and to remedy the situation the Judge stayed
the proceedings. Then the Crown successfully applied for an order from the
Supreme Court for the Provincial Court Judge to proceed.
The accused
appealed that decision.
To determine i f a delay was unreasonable the B. C.
that the factors to be considered are:

Court of Appeal said

1.

The length of the delay and its relationship to the nature and gravity
of the offence;

2.

The reason for the delay, including whether the accused consented or
was a party to it;

3.

If the accused asserted his rights promptly; and

4.

The prejudice to the accused.

The B. C. Court of Appeal implied that the accused consented to the delay
and did not assert her rights promptly.
She consented to the April date
for the preliminary hearing and when she appeared she objected claiming
unreasonable delay.
The Provincial
hearing.

Court

Judge

was

instructed

to

conduct

the

Accused's appeal dismissed.

*** * *

preliminary

- 33 -

OBLITERATED IDENTIFICATION NUMBERS
PKESUMPTION THAT CAil IS STOLEN ARD THAT POSSESSOR DOWS THAT
Re Boyle and The Queen - 5 c.c.c. (3d) 193
Ontario Court of Appeal
Section 312(2) C.C. provides that obliterated identification numbers on
motor vehicles are in the absence of any evidence to the contrary, proof
that the vehicle was obtained by the commission of an indictable offence.
The section. further presumes that a person who possesses a vehicle with
obliterated identification numbers knows that it was obtained by the commission of an indictable offence.
The accused who possessed a car with obliterated identification numbers was
committed for trial for possession of stolen property.
The Crown had
depended on the presumption of knowledge provided by section 312(2) C.C.
The accused appealed claiming that the section violates the presumption of
innocence and is therefore constitutionally invalid.
The Ontario Court of Appeal found that t:he section provides two presumptions.
The first 01.'le is that we may presume that a car with obliterated
identification numbers was obtained by the commission of an indictable
offence.
The second one is that the person who possesses such a motor
vehicle is presumed to have guilty knowledge that the vehicle was so
obtained.
The Court had no problems with the first presumption and said:
"The
obliteration of the vehicle identification number even in the absence of
any presumption is strongly probative of the illegal history of the
vehicle".
The second presumption, the one in rettpect to guilty k~owledge, however,
was found to be contrary to the presumption of innocence.
The Court, in
essence, applied its own devised test to this reversed onus provision, to
determine i f it was excessive in respect to the presumption of innocence.
Every statutory or common law presumption of a fact has prerequisite
facts. For instance., before it may be presumed that a person has culpable
knowledge of a vehicle's illegal history, the Crown must prove that the
accused had possession of the vehicle and that its identification numbers
were obliterated. If the facts to be presumed (guilty knowledge) is not a
pa:obable or at least a reasonable consequence· of the prerequisite facts
(possession and obliterated numbers) then the provision of the presumption
is excessive.
This presumption applies equally to persons who may not even be able to
tell you where the engine is mounted (never mind the identification
numbers) and a used car dealer who may not adhere to the noblest consumerservice ethics but who knows a stolen car when he sees one.
Furthermore

-

34 -

the possession does not have to be "recent" in regards to the time the
theft occurred. The presumption even applies to Auntie Matilda who inherited the car from grandpa who bought i t in good faith.
This all means that:
a jury, in the absence of evidence to the contrary, is
required by Parliament to find that the accused had the necessary guilty knowledge even i f there is no probative evidence
that the accused in fact had such knowledge".
One may say that Auntie Matilda could never be convicted if this woman, the
epitemy of credibility, took the stand. If her testimony would not amount
to "evidence to the contrary" and not only creates a reasonable doubt but
proves innocence beyond a reasonable doubt, nothing will.
However, the
fact that no police officer or prosecutor would accuse Auntie Matilda and
that no conviction is likely to result, is not the test. The fact that the
presumption may put her in a position of having to disprove (on the balance
of probabilities) that she had no guilty knowledge contravenes the right to
be considered innocent until proven guilty.
The Court, as stated above, held that evidence of an obliterated identification number is constitutionally appropriate proof that a vehicle or a
part thereof was obtained by the commission of an indictable offence. This
coupled with the doctrine of "recent possession" is capable of proving
guilty knowledge on the part of the possessor of such a vehicle. However,
the presumption of knowledge as provided in s. 312(2) c.c. is constitutionally excessive.
Accused's appeal allowed.
Committal for trial quashed

*****

- 35 -

IS POSSESSION OF MARIJUANA A LESSER. AND INCLUDED IN CULTIVATING MAllIJUANA?
Regina v. Powell - B. C. Court of Appeal
1983

CA 000363 Vancouver

November 24,

Mrs. Powell, the accused, split up with her husband in January.
In May
hubbie came back to the homestead to plant marijuana plants over the objections of his wife who occupied the place. The accused did not enforce her
objections as her husband was the joint owner of the property.
In July,
the husband transferred the property in the accused's name.
A few days
late-r -p\Jllice came and found nearly 300 marijuana plants on the property.
The accused was charged. with cultivating marijuana~ but the jury returned a
verdict of possession of marijuana as an included offence.
She appealed
the verdict, not posing the question if in the circumstances she could have
been convicted of "possession" had she been so charged, but whether
"possession.. is an offence included in "cultivation".
To determine if one offence is included in another the included offence
must (1) be described in the enactment creating the principal offence; (2)
it must be described in the count charged*; or (3} at common law, the
offence is one of necessity to commit the principal offence.
Here are some examples respectively:
1.

A person is charged with "aggravated assault" under section 245.2(2)
c.c. If the evidence fails to show beyond a reasonable doubt that the
victim was (as defined in section 245.2(1) C.C.) wounded, maimed,
or disfigured, or that his life was endangered, but substantiates that
the accused assaulted the victim then he can be convicted of the
included offence of assault.
This, as assault is described in the
section (enactment).

2.

A person is charged with attempted murder.
If the count in the
indictment does not describe any mor~ then "that he did attempt to
murder", there is no included offence. Should the Crown fail to prove
specific intent on the part of the accused to take the life of his
victim, he must be acquitted despite the heinous things the evidence
may show be did to the victim.
However, should, for instance, the
count describe that he attempted to murder his victim by "administering noxious things" then if the specific ·intent to cause death is not
proved, the accused may be convicted of the included offence under
section 229 C.C.
This as the offence of "administering noxious
things" was described in the count as a means by which the accused
alledgedly intended to take the life of his victim.

* See section 589(1) of the Criminal Code

- 36 -

3

The common law provision for one offence being included in a more
grave offence is the one that had to be considered in this case.
It
only arises, of course, when the enactment or the count does not
describe a lesser offence.
The test to determine if there is at
common law, an included offence is quite simple. If a certain offence
cannot be committed without committing also a lesser offence, then
that lesser offence is included.
In other words, the lesser offence
must be an act of necessity to commit the major offence.
Or to do
this test backwards, it has been said:
"If the whole offence charged
can be committed without committing another offence, that other
offence is not included."* .But, for example, one cannot commit theft
without being in possession of stolen property; or cannot one drive
without having the care or control of a motor vehicle?

The test then to be applied in this case is i f the accused could be
cultivating marijuana (the alleged offence) without being in possession of
marijuana.
On the surface the question seems outright stupid, and one is
inclined to answer unhesitatingly, "No".
Quoting the Ontario Court of Appeal**, the Court observed that cultivating
is "restricted to activities associated with the growing of plants" and
does not include the process of "maturing the plants, after they were
picked, by drying or curing".
The Crown, to prove cultivation, had to show that the accused took an
active part in the growing of the prohibited plants.
It had not met this
need.
And to support that "possession" is an included offence, the Crown
had to convince the Court that "cultivation" of a plant is impossible
without "possessing" it. The Court responded:
"Clearly, one can bestow labour and attention upon land in
order to raise a crop without being in possession of the crop".
Then there was an additional problem for the Crown.
If proceeded by
indictment, both offences carry the same penalty. Therefore the one is not
"lesser" than the other and may consequently not be included. However, the
Court did not answer that question.
Appeal allowed
Verdict of not guilty entered.

Note:
The question of the offences carrying the same penalty and the one
therefore not being a lesser of fence to the other was addressed in Ferguson
v. The Queen (1961) 132 c.c.c. 112. The Supreme Court of Canada held that
the included offence need not be lesser in terms of gravity or penalty.
All that matters is whether to commit the principal offence it is necessary
to commit the offence sought to be included.

* R. v. Carey (1972) 10 C.C.C. (2d) 330.
** R. v. Gauvreau (1982) 65 C.C.C. (2d) 316

- 37

Another matter of interest is where the description of the included offence
is in only one of the subsections that define the principal offence. For
instance, section 302 c.c. defines that robbery is stealing where
(a)
(b)
(c)
(d)

resietence to the theft was overcome by violence or threat of
violence;
any person , at th~ time of the theft or immediately before or after
the thef'i:, is woundec. beaten, struck or subjected to violence;
any person ie assaulted with intent to steal irom him; or
steals from any person while armed.

One could say that someone could commit robbery without committing
assault. After all, under (d) no assault needs to take place. Therefore,
the latter ought not to be included in the former a However, the B. c.
Court of Appeal held* to have an included offence~ "the lesser offence need
not to be included in all of the definitions of the offence charged". The
judgment implied that where the Crown depends on the included offence being
described in the enactment it must necessarily be included in one of the
definitions. Therefore, "assault" is an included offence to robbery i f it
is proved by the evidence adduced in a trial for robbery, even where it is
not mentioned in the count.

*** **

* Luckett v. The Queen (1980) 50 c.c.c. (2d) 489