m~llUJll Of WHTllfilT VOLUMI NO@ 19 Justice Institute af British Columbia POLICE ACADEMY 4180 West 4th Avenue1 Vancauvar1 ·-"~ -~tish Calumbia1 V&R 4J5 I ISSUES OF INTEREST VOUJME NO. 29 Written by John M. Post December 1987 TABLE OF CONTENTS Page ROADSIDE SOBRIETY TEST - DETENTION - CHARTER RIGHTS Regina v. BONOGOFSKI - B. C. Court of Appeal CA 007055, Novembc~ 18, 1987 DISCLOSURE AND DISCOVERY - ACCUSED ENTITLED TO AMPOULE OF ALCOHOL SOilJTION - S. 7 OF THE CHARTER................ .. .. . ... . ..... R. v. HOLH, County Court of Kootenay Ferrtie No. 430059, August 1987 MUST THE PERSON WO REFUSES TO BLOW BE INFORMED AS OF RIGHT OF THE OFFENCE HE COMMITS? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regina v. JOHNSTON - Vancouver County Court - CC 861023 CRIME STOPPERS - SEARCH WARRANT ISSUED UPON ANONYMOUS INFORMATION - ADMISSIBILITY OF EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regina v. KYRYI1IK and KYRYI1IK - County Court of Vancouver No. CC 860710 - October 1986 OBNOXIOUS DETAINEE 'WHO PROCRASTINATES IN CONSULTING COUNSEL - CHARTER OF RIGHTS AND FREEDOMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TRElfBI.AY and The Queen - Supreme Court of Canada - October 1987 ADMISSIBILITY OF POLYGRAPH - EVIDENCE..... . .............. . .... . ..... The Queen and BELAND and PHILLIPS - Supreme Court of Canada, October 1987 1 3 5 6 8 9 - ii Page CONVICTION ON FINGERPRINT ALONE - OBTAINING PRINT BY MEANS OF SUBSEQUENT ARREST - UNREASONABLE SEARCH - UNI.AWFUL ARREST . . . . . . . . . . . Regina v. SCHWAB - Vancouver County Court No. CC 870443 - September 1987 THE CIAIK OF INNOCENCE! Regina v. HOK and LEUNG - County Court of Vancouver - CC 870383 cr.-.-1........... h .... .... ""'l"' .... ""'.a.~.&............. 11 12 1007 ......,,. ~, !AWFUL AND ARBITRARY ARREST ......................................... Regina v. FAULKNER - County Court of Vancouver Island Victoria No. 42725, July 1987 13 PROSTITUTION IAWS - ARE THE SECTIONS AMBIGUOUS? Regina v. HEAD - B.C. Court of Appeal CA 007153 - Vancouver, June 1987 15 RIGHTS AND LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regina v. AUJLA - County Court of Westminster No. X018157, July 1987 16 ARBITRARY DETENTION UPON ACCUSED REFUSING TO SIGN APPEARANCE NOTICE Regina v. GAGNON - County Court of Westminster New Westminster Registry X018317, October 1987 18 ARBITRARY ARREST AND !AWFUL ARREST Regina v. CHRISTIENSEN - Vancouver County Court CC 870559, September 1987 Regina v. Kearns - CA 006880 Vancouver, October 1987 The Queen and Lee, Supreme Court of British Columbia, Vancouver No. 51-56-07100, July 1987 20 MANNERISM OF SEARCHING PERSON WITHOUT ARREST - NARCOTICS CONTROL ACT. Regina v. O'Reilly - County Court of Prince Rupert No. 9954 T, July 1987 26 - iii - Page CONSTITUTIONALITY OF GUILT IN CARNAL KNOYLEDGE OF A FEMALE PER.SON UNDER FOURTEEN YEARS, DESPITE SINCERE BELIEF OF AGE (s. 146(1) C.C.). Regina v. Ferguson - B.C. Court of Appeal Vancouver CA 003488, September 1987 27 THE MEANING OF PROWLING AND LOITERING . ...... . . ..... ................ 30 Regina v. Willis - County Court of Vancouver Island Victoria, No. 40750-C, June 1987 ADMISSIBILITY OF STATEMENT - CONFLICTING EVIDENCE - CREDIBILITY INDUCEMENT - AWARENESS FOR WHAT PURPOSE STATEMENT MAY BE USED . . . . . . The Queen and Walsh - B.C. Court of Appeal Victoria C.A. No. V00403, June 1987 IS EVIDENCE OF COMPLAINT OF SEX OFFENCE ADMISSIBLE DESPITE THE ABROGATION OF "RECENT COMPLAINT"... . .............. . .. .... .... . . .. .. . Regina v. a/ENS - 33 C.C.C. (3d) 275 Ontario Court of Appeal THE MEANING OF SEXUAL ASSAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 33 35 Regina v. CHASE - Supreme Court of Canada October 1987 UNFOUNDED JUDICIAL SCATHING OF POLICE AND CROWN; CONTROL OVER AGENT IN UNDERCOVER OPERATION; ENTRAPMENT ...... . . . ........... . .. . . Regina v. Gudbranson - B.C. Court of Appeal CA 005837, Vancouver, October 1987 36 LEGAL TID-BITS DEMANDING 'ROADSIDE' BREATH SAMPLES OF PERSON WHO HAS BEEN DRIVING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 IMPROMPTU AND VOUJNTEERED STATEMENT ...... . .. .. ........... .... .. 39 UNREASONABLE SEARCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 TAKING BLOODSAKPLE - UNREASONABLE SEARCH .... ... ........ ... .... . 40 - iv - WORTHLESS CHEQUES - PRESUMPTION OF KNOWLEDGE OF INSUFFICIENT FUNDS • • • • • • • • • • • . • . • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • • • . • • • • . 40 CONSTITUTIONAL VALIDITY OF IDENTIFICATION OF CRIMINALS ACT PROPRIETY OF FINGERPRINTING PRIOR TO CONVICTION ................ 41 SEARCHING WITHOUT WARRANT UNDER N.C. ACT - REENTERINT TO INSTALL VIDEO EQUIP.KENT - UNREASONABLENESS ............................. 42 VIDEO EQUIPMENT USED TO GATHER GAMBLING EVIDENCE - NO WARRANT REASONABLENESS OF SEARCH ....................... . ... . ........... 42 REASONABLE SEARCH - PROTECTION OF INFORMER ..................... 43 WFRA.UDULENTLYW TEIJ..ING FORTUNE .. . . ........ ... ... ··· · · · ········· 44 OFFICER MISREPRESENTING HIMSELF AND THEREBY GAINING ACCESS TO ACCUSED HOME WHERE EVIDENCE VAS DISCOVERED ....... . .. . . . ... ..... 44 SECURITY SEARCH OF UNARRESTED SUSPECT ... : . . ... . .. . . .. . ... . .. . .. 44 ROUTINE STOPPING OF CAR - ARBITRARY DETENTION . .. . .. . .. .. . .. .. . . 45 CARE OR CONTROL OF A BOAT OUT OF GASOLINE 46 ROADSIDE SOBRIETY TEST - DETENTION - CHARTER RIGHTS Regina v . BONOGOFSKI - B.C. Court of Appeal CA 007055 , November 18, 1987 The accused used three lanes of traffic to drive in one direction and, when turning left, he drove over top of a cement divider. From that driving, and the results of the breath tests, it seems safe to say that the accused was quite intoxicated. However, an infringement of the accused's right to counsel superseded and suppressed this fact when the conviction of impaired driving was appealed. The officer, who witnessed the above described driving, decided, despite the atrocious driving and the accused's stumbling when alighting from his car (along with all other typical symptoms of intoxication), that some sobriety tests were in order . Upon completion of those tests, the officer seemed not to have effected an arrest, but made the demand. He gave the accused his Charter goodies and took him in for the breath tests. Defence counsel argued that the accused was detained from the moment he was stopped and the officer saw his condition. However, the officer had not made the accused aware of his rights until he had collected more incriminating evidence. He admitted on the stand to be fully aware of the weightiness of sobriety test results in impaired driving case. As a matter of fact, the defence claimed that without the evidence of the test, the conviction for impaired driving would not likely have resulted. The B.C. Court of Appeal agreed that the accused was detained from the moment he was stopped and that he should have been informed of his right to counsel at that point. Waiting until after the sobriety test was an infringement of the accused's Charter right. The question if all of the evidence should be excluded hinged on whether the officer had acted in good faith. After all, the B.C. Court of Appeal has emphasized (especially in the Gladstone case*) that good faith on the part of the police is an important, if not a decisive factor. Also, that when police comply with the law as it was at the time, they acted in good faith despite precedents that since may have made their actions contrary to the law. Nevertheless the B.C. Court of Appeal decided unanimously: " but, in this case, I think that the finding of a good faith should not be the determining factor. Cst. M. believed, erroneously, that prior to the physical tests he was not detaining Bonogofski. In view of Cst. M's knowledge of the importance of the * Issues of Interest , Volume 22, page 22 - 2 - physical tests in deciding whether to make a demand on Bonogofski, I think that he should have given him the warning under s. lO(C) of the Charter." The evidence was consequently held to be inadmissible. Accused's appeal granted Conviction set aside Acquittal substituted Note: The B . C. Court of Appeal made some comments that may be of interest. The Court said that not every driver who stops for police should be considered to be detained. For instance, stopping a person to make hirnfher aware of a dangerous road condition does not constitute detention. That is where the Court's comment stopped and it did not address the question of detention, when a person is stopped for any kind of infraction of the law. Traffic violations come to mind . It s<..e::-.s irr:po::::.:::-.: to remember that so far there has been no suggestion, in any cases, that detention only occurs when the officer in the circumstances, has the po~er to effect an arrest. Yet, this is a popular belief in the law enforcement community . Detention is included in arrest , but the cases say that there can be detention without arrest and do not ~ to say that power to arrest in the circumstances is a prerequisite to detention . ***** - 3 - DISCLOSURE AND DISCOVERY - ACCUSED ENTITLED TO AMPOULE OF ALCOHOL SOUJTION - S. 7 OF THE CHARTER R. v. HOI.11, County Court of Kootenay - Fernie No. 430059, August 1987 Three months prior to the accused's trial for "over 80 mg" and impaired driving, defence counsel wrote to the prosecutor and demanded, " ... I require a sample of the breath test solution that was identified in the Certificate. I need that for testing by my own expert." Two months later, the prosecutor responded, "I am not prepared to give you a sample of the breath solution nor the alcohol solution identified in the certificate - as there can be no use in having it tested. It would not be the one employed on the occasion, so any inaccuracy (even if there were one) would only be speculative." When the Crown appealed the accused's acquittal for "over 80 mg." defence counsel submitted (as he did at trail) that the prosecutor's refusal to give him the required samples, amounted to an infringement of the accused's right under s. 7 of the charter,* and had appropriately caused the certificate evidence to be excluded at trial. The County Court Judge, who heard the appeal, agreed with the defence and ruled that refusal to supply a representative ampoule of the alcohol standard solution had infringed the accused's constitutional right. He quoted from other precedent setting judgements about the meaning of s.7 of the Charter. It is incredibly broad and includes pre-trial disclosures and discovery rights. In this case, the accused had the right to a sample ampoule to test its suitability. This left the question if that infringement should and could result in suppressing the certificate evidence. Section 24(2) of the Charter is quite specific and only refers to evidence "obtained in a manner that infringed or denied any rights or freedoms ... " Here, the infringement played no part in obtaining any evidence. The Court found no merit in that submission and the appeal judge applied what is known as "the poisonous tree principle" to this issue by saying: "In my opinion, the violation being a denial of fundamental justice, the whole process is affected and not merely the impugned evidence." He further observed that if violations of s. 7 of the Charter, occurring after evidence was obtained, was incapable of triggering consideration for exclusion, then s. 24(2) would be meaningless insofar as a denial of * BOURGET v. The Queen - Saskatchewan Queen's Bench July 1986 (unreported) - 4 - fundamental justice is concerned. Hence, section 24(2) of the Char ter applied. However, would admission of the certificate bring the administration of justice into disrepute. Considering the accused was obliged by law to provide incriminating evidence, strictness of the application of Charter provisions does follow as was recently indicated by the Supreme Court of Canada . * Crown' s Appeal was dismissed. ~ot::: !~ •:::..c·.; cf the " f:riYclc'..!::" ar.d "remarkable" response by Crown Counsel to defence counsel's request, the accused applied to be compensated for his costs. There are ~ow some precedents for such awards if the prosecution or appeal are frivolous or for oblique reasons. However, as the County Court Judge could not see anything unusual or different in substance from other appeals, he did not think this was an appropriate case to set a precedent . ****** * Regina v. THERENS , see Volume 21 , page 1 of this publication 18 C.C.C . (3d) 481 - 5 - MUST THE PERSON WO REF1JSES TO BLOW BE INFORMED AS OF RIGHT OF THE OFFENCE HE COMMITS? Regina v. JOHNSTON - Vancouver County Court - cc 861023 The accused was given four opportunities to provide the breathsamples demanded of him. His failure to provide a suitable sample amounted to refusal and he was convicted accordingly. He appealed to the County Court submitting that failure on the part of the police officers to tell him that he was committing an offence when he failed to provide a suitable sample was an infringement of the accused's Charter right. Defence counsel relied heavily on a decision by the Saskatchewan Court of Appeal* which held that a refusal is not irrevocable and that a suspected impaired driver in circumstances, as in this Johnston case, should be advised that non-compliance with the demand constitutes a criminal offence. This is particularly so, as the offence is unique in that a person on demand of authorities is obliged to provide evidence against himself; a practice contrary to the most basic principles of law. The County Court Judge did not buy the argument and found an Alberta case** more in line with the law. Consistent with that case he found the criminal code does not provide for a person under demand to be informed as defence counsel suggested and that such a warning is unnecessary. There may well be a general policy or courtesy to do so, but Mr. Johnston is presumed to know the law "and if he chooses not to comply with the demand he cannot expect legal advice from the police, particularly as he has been advised and offered the opportunity of contacting legal counsel and seek advice . " Accused ' s appeal dismissed Conviction upheld *JACKIE v. Regina, 26 Saskatchewan Reports, 295 Saskatchewan Q.B. ** R. v. HIRANDO 9 m.v.r. (ALTA Q.B . ) - 6 - CRIKE STOPPERS - SEARCH VAR.RANT ISSUED UPON ANONYMOUS INFORMATION - ADKISSIBILITY OF EVIDENCE Regina v . KYRYIIJK and KYRYIIJK - County Court of Vancouver No. CC 860710 - October 1986 Via anonymous Crime Stopper sources , police were told that marijuana was hydroponically grown at a certain address and was being sold from that place . Observation of the premises did not reveal activities that supported tr~ffi~ !~inb. However, the hy~~o bill was excessive and had trippled within the last year. Upon the information of the anonymous tip and the trippled hydro bill, a Justice of the Peace issued a search warrant. 'What police did not tell the Justice of the Peace was that their surveillance had failed to produce any evidence of trafficking or any other relevant evidence. This should have been included to make full disclosure, argued defence counsel . Furthermore, the details contained in the information were inadequate to satisfy the Justice of the Peace to issue the warrant added the defence. Although the reasons for judg £ment do not say so, it seems that police found when they executed the search ~arrant that their anonymous information was accurate. The whole judgement is on Charter related issues regarding the search being reasonable in the circumstances and whether the evidence found, by means of the flawed warrant, should be admitted. The County Court Judge opened h i s judgment by outlining the quantum changes the Charter had brought to issues of this kind. He acknowledged that, prior to the Charter, the issue of legal propriety regarding the warrant was collateral, a distant issue that received no consideration at a criminal trial. The validity of a search warrant had no bearing on the admissibility of what was found by means of the warrant. Hence, an exploration of the warrant's validity at trial, used to be a superfluous exercise that would only frustrate the trial judge as he had no power to remedy any flaws or shortcomings in regards to the warrant. Even having a warrant quashed by way of prerogative writ may not have caused the evidence to be inadmissible. The Charter, particularly s. 8, has drastically changed all of this. The matter of the warrant's validity is no longer collateral, but a kernel issue to determine if the search was reasonable. If the Charter right under s . 8 may have been infringed the evidence is subject to suppression if the circumstances don't warrant otherwise and where the administration of justice would be brought into disrepute if it were admitted. The Court seemed somewhat dubious about Crime Stopper programs. The information received via that system ought to be the beginning and not the end of an investigation. Furthermore, the results of investigations must be revealed to the J'llstice of the Peace, "whether this assists in the granting of a warrant or not". In any event, an anonymous tip and a trippled hydro bill may raise justified suspicion, but is inadequate to say that the Justice of the Peace was satisfied that the officers had reasonable and probable grounds - 7 - to believe that marijuana was being cultivated in that house. The J udge concluded that Crime Stoppers needed to be watched closely by the judiciary; that the warrant was defective; and that the evidence found must consequently be suppressed. Charges were dismissed. ****** - 8 - OBNOXIOUS DETAINEE WHO PROCRASTINATES IN CONSULTING COUNSEL - ·CHARTER OF RIGHTS AND FREEDOMS TREHBLAY and The Queen - Supreme Court of Canada - October 1987 The accused was pulled over and a demand for breath samples was made of him . He was "violent, vulgar and obnoxious", and obstructed investigation in various ways. He procrastinated and delayed things as much as he could. When he was given a phone t.o com::.act a lawyer he phoned his wife instead. Although it is not too clear, it seems he may have asked his wife to contact a lawyer for him. At least he submitted that such was the case and that he was asked to blow inunediately upon having phoned his wife. No time was allowed to see if a lawyer was going to phone for him. The trial Judge had found that the accused's right to counsel had not been infringed and he was convicted of "over 80 mg." The County Court reversed that conviction and found there was an infringement that called for the exclusion of evidence. Then the Ontario Court of Appeal agreed with the trial Judge and restored the conviction. The accused took his plit}·.: :c :L S;.;.p:::-e:me Court of Canada. Our highest Court held that the accused's rights had been infringed, but for such understandable and provoked reasons that admitting the evidence would not bring the administration of justice into disrepute. Said the Supreme Court of Canada: "Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R v. Hanninen* imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath." That was not quite the cas e with the accused. However, his conduct had been misleading in terms of retaining and consulting counsel . Such conduct is relevant when considering exclusion of the evidence. Accused's appeal dismissed Conviction was restored. * See Volume 28 of the publication, page 1 - 9 - ADMISSIBILITY OF POLYGRAPH - EVIDENCE The Queen and BELAND and PHILLIPS Supreme Court of Canada, October 1987 Five men allegedly conspired to rob an armoured truck . One of the conspirators went to police and told all. Consequently, no robbery took place. The 'drop-out's testimony was the kernel evidence of the Crown's case to show the conspiracy it alleged against the accused. The accused also testified and they denied everything the Crown had adduced. As a matter of fact, they offered to take polygraph tests and submit the results in evidence . A motion was made to allow the tests. The motion had been denied as the evidence of polygraph tests is inadmissible. The accused had this ruling reversed by the Court of Appeal and the Crown appealed this reversal to the Supreme Court of Canada. Our hi~hest Court, dealt in 1978 with admissibility of a polygraph test result in a case where the accused had selected not to testify and attempted to put his story to the jury by means of the test. In other words, in that case, the results of the polygraph test were to substitute for the accused's testimony whereas in this Beland, Phillips case it was asked to be accepted to corroborate their own testimony . In that way, the cases were distinct from one another. In 1962, three men were charged with raping a mentally retarded sixteen year old girl. The Crown, being concerned that this girl would not be believed for fear of fabrication, called a psychiatrist who said that her low mental age lacked the imagination to concoct anything. This was called "oath helping".** No evidence is allowed to boost or establish the credibility of witnesses. They have to carry the day by themselves in examination-in-chief and crossexamination. If this sort of evidence was allowed the Courts would become a circus with reams of witnesses boosting each other's credibility or to make their opponents out as liars. Every witness must assume to be of normal moral character. Only when a witness' credibility is impeached "becomes it worthwhile to deny that his character is bad". In other words, evidence of good character is only allowed to rebut evidence of bad character. Beland and Phillips had testified and the requested polygraph evidence was solely to bolster their credibility by means of a fallible machine. That would fly in the face of the well established rule regarding oath helping. This rule is quite consistent with the rule against past consistent statements. That is also a form of oath helping. This means calling a a person to testify that the witness has made a statement to them consistent * PHILLION v. The Queen [1978 ] 1 S.C.R. 18 ** R. v. KYS.ELKA (1962) 133 C.C . C. 103 - 10 - with his/her evidence to bolster the credibility of what is attested to. rule has two applications: 1. This It precludes an accused person from calling a witness to relate a statement he (the accused) made and that is self serving. 2 . . No witness (an accused or not) may call another witness to relate a statement he previously made; neither may he testify as to the statements he previously made regarding the matter before the Court. Allowing that sort of evidence simply means coming in through the back door in th. IJOi.. b im~~i!f 01 1 B. C. Courts ******* CONSTITUTIONAL VALIDITY OF IDENTIFICATION OF ~ ACT PROPRIETY OF FINGERPRINTING PRIOR TO CONVICTION The two accused were each compelled to attend at the police station for photographing and fingerprinting. The one was so ordered by means of an appearance notice; the other by summons. The charges against these persons are unrelated to one another. Both refused to appear and challenged the validity of the Identification of Criminals Act. This dispute ended up in the Saskatchewan Court of Appeal. This court concluded that it was against the liberty and security of the person (s.7 Charter) to be mugged and printed prior to conviction. The challenged Act provides for this degrading experience prematurely and creates a selective fingerprinting. The Court held that, unless the persons were convicted, they were not required to attend as ordered. Regina v. HIGGINS and Regina v. BEARE 34 c.c.c. (3d) 193 See case note, bottom of page 11. - 43 - Note: On December 17 , the Supreme Court of Canada reversed this decision after a reported 15 minute deliberation by all nine justices . Reasons for judgement will be given on a later date . ****** SF.ARCHING llITIIOUT VARRANT UNDER. N. C. ACT REENTER.ING TO INSTALL VIDEO F.OUII'MENT - RF.ASONABLENESS Police received information that narcotics were stored in a garage. They searched without warrant under s. 10 N.C. Act and found as they were informed. They returned and installed video equipment. The accused was recorded as the person who was handling the narcotics. The trial judge had admitted the video evidence. The Quebec Court of Appeal held that the original search may well have been reasonable, but the planting of the video equipment was a breach of s. 8 of the Charter (reasonable search). As the trial judge had erroneously ruled that s. 8 of the Charter did not apply as the garage was used for criminal purposes, he had given inadequate consideration to the admissibility of the taped evidence. A new trial was ordered. Regina v. ASENCIOS - 34 C.C.C. (3D) 168 ****** VIDEO EQUIPMENT USED TO GATHER GAMBLING EVIDENCE NO WARRANT - REASONABLESS OF SEARCH The accused rented a hotel suite for gambling purposes. Police received information of this, as well as information that the room was to be the scene of a robbery by persons not in any way related to the organizers. With the full knowledge and cooperation of the hotel management, surveillance of the room was maintained and it revealed evidence that the information regarding the gambling was correct. With the assistance of the hotel, video equipment was installed in the room without any sound equipment attached. An abundance of evidence was gained and after three nights of taping police walked in, arrested the principals and seized all kinds of evidence. No authorization or warrants were involved at any time. The . trial Judge rejected all of the evidence and the Crown appealed the accused's acquittals. The Ontario Court - 44 - of Appeal held that video taping is a search and a key consideration was whether the persons observed, by means of the camera, had a reasonable expectation of privacy. No authorization for intercepting private communication could have been issued as none were, or were intended to be recorded. In the circumstances, s. 8 of the Charter does not apply since there was no reasonable expectation of privacy as there were numerous invitations sent out to join the gambling group of about 35 people . Consequently, the video evidence should have been admitted as should the evidence seized upon the arrests. No warrant was needed to enter the room where police had reasonable and probably grounds that an indictable offence was being committed . Crown's appeal allowed and a new trial ordered. Regina v. WONG et al - Ontario Court of Appeal 34 c.c.c. (3d) 51 ****** REASONABLE SE!LJ:!.CH - PROTECTION OF INFORMER The common law and the Supreme Court of Canada have made it clear in the strongest of terms that the iden:ity of a police informer (not agent) must not be disclosed. Since the Charter, defence counsel have made inroads into this dictum. In this case, it was submitted the information that provided the prerequisite grounds for the search was needed to make a full answer and defence to what was alleged . This includes the testing of the search and seizure against s. 8 of the Charter which grants a right to be secure against unreasonable search and seizure. Hence, when for that purpose the information (application) of the warrant is requested or required, the identity of an informer may become known. This creates a self-explanatory judicial dilemma . In this case, the Crown appealed the accused's acquittal on possession of narcotics for the purpose of trafficking. The narcotics were found in the accused's penthouse which was searched with a warrant obtained on the basis of information from a reliable informer. No editing of the sworn information would prevent disclosure of the identity of the informer. The Ontario Court of Appeal held that the informers must continue to be protected; however, in view of the Charter being supreme law, if the identity is revealed even by editing the information the Crown has an option not to proceed, seek consent of the informer to reveal his identity or proceed on the basis of a warrantless search. Crown's appeal allowed and a new trial ordered . Regina v. HUN'IER - 34 C.C.C.(3d) 14 ****** - 45 - •FRAUDUI.ENTLY• TELLING FORTUNE For $15, the accused told a police officer his fortune and future. She was convicted under s. 323(b) C.C. and appealed until she ended up in the Supreme Court of Canada. She claimed that since childhood she enjoyed special powers to predict the future; consequently, her fortune telling was not fraudulent. The Supreme Court of Canada held that as "The accused knows full well that she has no basis for her claim to be able to predict what will happen in people's future", the defence of belief is not open on the facts of the case . Accused's appeal was dismissed . 33 C.C . C. (3d) 220 - LABRDSE v. The Queen ****** OFFICER MISREPRESENTING HIMSELF AND THEREBY GAINING ACCESS TO ACCUSED HOKE WHERE EVIDENCE VAS DISCOVERED A Wildlife officer answered an advertisement offering meat for sale. He did not identify himself and pretended to have a personal interest to purchase some meat. He was invited in the home and he discovered that the meat was wildlife. Charges under Wildlife Act resulted. The trial Judge, however, reasoned that the officer had entered the home for the purpose of search and seizure. The deception, and the fact that the search was warrantless, rendered it unreasonable and the evidence was excluded. The Saskatchewan Court of Appeal upheld this view and observed that when it comes to a man's home, his castle, the authorities must announce their presence and demonstrate their authority by stating their lawful reason for entering. This was not done. The test whether the officer was such an authority is obviously an objective one. Crown's appeal was disallowed and acquittal was upheld. Regina v. RAHFORD - 32 c. c . c. (3d) 221 ****** SECURITY SEARCH OF UNARRESTED SUSPECT The accused was stopped for speeding and symptoms of impairment were detected when the officer spoke to him. A request was made of the accused to accompany the officer to the police car to give a sample of his breath in the roadside screening device. Without asking for permission to do so, the officer - 46 - searched the accused for "security reasons" before he allowed him to enter the police car . He had explained the purpose of the search to the accused. A quantity of marijuana was found on the accused, but the evidence was excluded at his trial for possession of a narcotic as the search and seizure had been unreasonable. This ruling was upheld by the Manitoba Court of Appeal. Said the Court: "~'hile at common law there exists power to search a person as inc~dent to an arrest, a search, apart from statutory authority, cannot precede an arrest and serve as part of the justification". Had the officers grounds for believing that his safety was in danger he should have effected an arrest and then he could have searched the accused. It was the intrusiveness of the search that had some bearing on the Court's finding. If a weapon is wh~t the officer was concerned about a npat down" search would have sufficed. Also, the officer could have asked for permission. However, he had searched as though he had a right to do so. That was an unreasonable intrusion in the circumstances. Crown's Appeal was dismissed . Regina v . HATHE - Manitoba Court of Appeal 32 c.c.c . (3d) 272 ****** ROUTINE STOPPING OF CAR - ARBITRARY DETENTION Accused was stopped for no specific reason and he was asked to produce his driver's licence. He couldn't do so as the licence was suspended. The Saskatchewan Court of Appeal (in a 2 to l decision) found that the stop had constituted arbitrary detention contrary to the Charter . Consequently, the evidence of driving was inadmissible. Accused ' s conviction was quashed and acquittal was entered. Regina v. IRDN - 33 C. C.C. ( 3d) 157 ****** - 47 - CARE OR CONTROL OF A ROAT OUT OF GASOLINE The accused was adrift and signalled another boat passing by. As he was out of gas he was towed into shore. Police attended and concluded the accused was impaired. He refused to give any breath samples and was convicted of impaired boating and refusing to blow. He appealed, arguing that since he was out of gas, he was not likely to do anything with the controls of the boat that would set it in motion.* The County Court Judge disagreed, and held that the accused had the care or control. He was to keep a steady lookout, and use the oars to direct the boat as it drifted. Appeal dismissed Convictions upheld Regina v. TROSELL - County Coert of Vancouver cc 861796 *See R. v. ToeFlls - Volume 22 , page 24 of this publication.