POLICE ACADEMY

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

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

SEASON’S GREETINGS
The staff at the Police Academy
would like to wish our “InService:10-8” readers and their
families all the best for this
holiday season. It has been a
pleasure serving British Columbia’s police officers by
bringing them up-to-date on many of the issues facing
them daily as they go about their arduous duties
protecting the citizens of their communities. May this
holiday season bring you good cheer and all the best in
the New Year. Have a safe and happy holiday.
Remember, in God we trust, all others we run on CPIC!!!

TOP COURT RULES STRIP
SEARCHES PRESUMPTIVELY
UNREASONABLE
R. v. Golden, 2001 SCC 83
Toronto police had an operation
underway involving a number of
officers in an area where drug
trafficking was known to take
place. A police officer using a
telescope was located in an unoccupied building
approximately 70 feet across the street from a
sandwich shop. The officer had a clear view into the
shop and could see what went on there. He witnessed
two transactions in which people went into the shop,
receiving from the accused a white substance. The
officer saw the accused take the substance, believed
to be cocaine, out of his hand with the thumb and
forefinger and give it to the others. After the second
transaction, the officer transmitted to other members
of the team a description of the accused. Two other
officers entered the shop and arrested the accused.
One of the officers patted down the accused, looked in
his pockets and found nothing. The officers then
opened a door leading to the basement and brought the
accused there and continued the search. An officer
pulled back the accused’s pants and underwear. Looking
down, he saw some clear plastic wrap between the

Volume 1 Issue 13
December 2001

accused’s buttocks as well as a white substance within
the wrap. The accused was flexing the muscles of his
buttocks in order to prevent the officers from
retrieving the package. On the landing at the top of a
flight of stairs there was some physical interaction
between the accused and the officers. An officer
testified that the accused pushed him at one point and
that he almost went down the stairs. The officer
thereupon pushed the accused against the wall facefirst. There being concern that the landing was not a
safe place in which to continue to search, and not
wishing to go down a flight of steps, the officers
brought the accused into the store. They excluded the
patrons from the shop and secured the premises. The
sole employee present remained in the shop. In a back
area of the shop they had the accused bend over a
table. From the street, it would have been possible to
see only one of the accused’s legs. The officers once
again tried to retrieve the package. The accused was
still using his muscles in such a way as to hold onto it.
The accused then accidentally defecated. An officer
found some dish gloves in the shop that he put on. He
then succeeded in retrieving the package.
The accused was convicted of possession of a narcotic
for the purpose of trafficking and appealed his
conviction on the basis that the evidence should have
been excluded pursuant to ss. 8 and 24 of the Charter.
The majority of the Court examined the long-standing
common law rule respecting the power to search
incidental to arrest. In reviewing the jurisprudence,
the Court continued to recognize that searches
conducted in the absence of a warrant are prima facie
unreasonable, although a search performed incidental
to arrest is an exception to this presumption. At
common law, the police have the right to search an
arrested person for weapons or evidence related to the
arrest. Although a search incidental to arrest does not
generally require reasonable grounds beyond the
grounds necessary to support the arrest, the Court
carved out an exemption to this common rule in cases
of strip searches. In identifying strip searches as
representing a significant invasion of privacy, and often
humiliating, degrading, and traumatic experiences, the
majority held that to undertake this type of intrusive

search, the officer must possess reasonable grounds
justifying the strip search in addition to justifying the
arrest. Strip searches carried out as a matter of
routine or policy, or abusively or for the purpose of
humiliating or punishing the arrestee will be
unreasonable. Furthermore, the Court stated that strip
searches should be conducted at the police station
unless there are exigencies requiring the search be
conducted in the field. For practical purposes, the
following points are noteworthy:

officer lacked independent grounds to believe the
accused had weapons or evidence secreted on his body.
Secondly, the officer lacked reasonable grounds that
the search needed to be carried out at the scene.
Finally, even though the accused resisted the officer’s
attempts to remove the package by clenching his
buttocks, the way the search was carried out
demonstrated considerable disregard for the accused’s
dignity and physical integrity. As a result, an acquittal
was entered.

The common law power to search incident to arrest
does include the power to strip search.
Although permissible as an incident to arrest, strip
searches are presumptively unreasonable and the
onus lies with the police in justifying the search.
In conducting a strip search the police must
possess reasonable grounds that the search is
necessary for safety or evidentiary concerns.
These reasonable grounds are independent from
the grounds justifying the arrest. Mere possibility
that a person has weapons or evidence upon their
person is insufficient.
Searches conducted as a matter of routine or
policy, or to humiliate or punish are unreasonable.
There is a distinction between strip searches on
arrest and strip searches related to safety in full
custodial settings such as a prison. The
appropriateness of routine strip searches of
individuals integrated into a prison population
cannot be used to justify strip searches of
individuals briefly detained by police or held
overnight in cells. Although police officers have
legitimate concerns that short term detainees may
conceal weapons, these concerns cannot justify
routine strip searches of all arrestees and must be
addressed on a case-by-case basis.
Strip searches are to be generally conducted at a
police station except in cases of exigent
circumstances where the police have reasonable
grounds to believe that the search is necessary in
the field such as an urgency to search for weapons
that could be used to harm the officer, others, or
the arrestee.
A person should be provided the opportunity to
remove items themselves or the assistance or
advice of trained medical professionals should be
sought to ensure material can be safely removed.

Editor’s Note: It is important for officers to
recognize that this case applies to a specific type of
search, a strip search, and does not apply to the pat
down or other area searches police officers encounter
on a daily basis. Those types of searches, such as
searching a vehicle in the control of an arrested
person, do not require independent grounds to believe
that weapons or evidence will be located and they
continue to be an exemption to the presumption
requiring a warrant provided there are reasonable
grounds justifying the arrest.

•
•

•

•
•

•

•

In this case, the majority found the manner in which
the search was conducted unreasonable. Firstly, the

Volume 1 Issue 13
December 2001

Complete case available at www.lexum.umontreal.ca/
csc-scc.

ARREST FOLLOWING CONSENT
ENTRY LAWFUL: BREATH
TESTS ADMISSIBLE
R. v. Grothiem, 2001 SKCA 116
A police officer received a
complaint that a vehicle had
struck a tree. The officer
responded and found a damaged
evergreen but no vehicle nor any
debris. The officer noted tire tracks in front of the
tree and a fluid stain on the pavement. A trail of fluid
and a long black skid mark lead up a nearby driveway.
The officer saw a half ton truck in the driveway and
upon going over to look, observed that the front end of
the truck had extensive damage. The officer knocked
on the door of the house, knowing that the accused
lived there with a number of roommates, to ask them
about the accident. Someone yelled, “Come in”.
The officer entered, smelled alcohol, heard someone
shout “cops”, and noticed three men with whom he was
familiar. One of the men had blood on his forehead and
hand, and his injuries were being attended to by his
mother. The accused appeared, was unsteady on his

2

feet, and looked drunk to the officer. The accused
immediately presented the officer with a work-order
relating to the truck’s steering and was about to
explain what happened when the officer asked the
accused who was driving the vehicle. The accused
stated he had been driving and accidentally ran into
the tree while turning into the driveway. Based on
previous dealings with the accused and his demeanour,
gait, slurred speech, and bloodshot eyes, the officer
concluded the accused was intoxicated and was going to
take him into custody for impaired driving causing
bodily harm.
Fearing the other men might intervene if he
confronted the accused in the house, the officer
placed his hand on the accused’s arm and suggested the
two step outside or go to the police car to discuss the
matter. The accused brushed the officer’s hand aside
and braced himself against the door jam, suggesting
through his actions he was not going to accompany the
officer willingly. The officer grabbed the accused and
pulled him through the doorway, hastily advising him he
was under arrest and of his right to counsel. Once at
the car, the officer read the demand and fully
informed the accused of his right to counsel. The
accused was transported to the police station,
exercised his right to counsel, and provided breath
samples over the legal limit.
At his trial, the accused argued the results of the
breath tests should be excluded because the officer
violated the accused rights by arresting him in his
home. The trial judge found the officer had been
lawfully in the accused’s home and had made a lawful
arrest. The accused appealed, and the Court of Queen’s
Bench, although satisfied the officer was lawfully in
the home, found the arrest to be unnecessary because
the officer had identified the driver and could have
achieved breath samples by demand alone (without
arrest) and inappropriate because the arrest in a home
absent exigent circumstances was a grave matter. In
holding that the officer “should have left the premises
and attempted to obtain an arrest warrant…”, the
Appeal Court judge found the arrest unjustified,
contrary to s.9 of the Charter, and excluded the
results of the breath tests. The conviction for driving
while over 80mg% was set aside.
On appeal by the Crown, the Saskatchewan Court of
Appeal divided the issues of the constitutionality of
the officer’s actions along three lines:

Volume 1 Issue 13
December 2001

•
•
•

the lawfulness of the officer’s presence in the home
at the time of arrest
whether the arrest itself was lawful
whether the arrest, even if lawful, constituted an
arbitrary detention

Lawful Presence?
The Court found the officer was lawfully present in the
home of the accused at the time of arrest. Cameron,
J.A. for a unanimous Court stated:
… [the officer] was lawfully in the home at the time of
the arrest. He went to the door not for the purpose of
making an arrest-or of conducting a search or seizurebut for the purpose alone of talking to the occupants
about
the
apparent
accident. That
was
his
intention. And, on knocking on the door he was invited
in. In advance of his being invited in, he had been seen
by the occupants driving up and down the street in the
police car and [the accused] had readied his work-order
to present to the policeman. So the constable's presence
at the door, as a police officer, was more or less
expected. Still he was invited in. During the short time
he was there prior to the arrest, neither [the accused]
nor any of the others had told him to leave. Taken
together, these facts make for a lawful presence in the
home
The importance of the fact the police officer was
present in the home lawfully lies in what would otherwise
have been a trespass and an illegal entry, accompanied by
a violation of [the accused’s] expectations of privacy in
relation to his home and by an in-home arrest without
warrant. Had that been the case, the first of the
questions in issue would have taken on a decidedly
different complexion in keeping, for example, with R. v.
Feeney, …. As it is, however, the central principles of
that case are not engaged. (references omitted)

Lawful Arrest?
An arrest made pursuant to s.495(1)(a) of the Criminal
Code for an indictable offence will be lawful if the
officer had reasonable grounds the accused committed
the offence. Since impaired driving causing bodily harm
is a strictly indictable offence and not one found in
s.553 of the Code, the officer need not consider
s.495(2) (public interest), at least at the time the
arrest is made. In determining whether the officer
possessed the requisite grounds upon which to justify
the arrest, the Court reviewed the applicable standard,
and at para.30 stated:
This requirement … requires that police officers
personally believe they have reasonable and probable
grounds for an arrest and that reasonable and probable

3

grounds in fact exist. Whether such grounds in fact
exist depends upon whether a reasonable person,
standing in the shoes of the police officer, would have
believed that there were reasonable and probable
grounds for making an arrest.
And further, at para.42:
The question of reasonable and probable grounds depends
upon a bona fide reasonable belief in a state of facts
that, if true, would justify the course taken. That the
supposed fact proves not to exist does not render the
belief unreasonable… Second, the assessment did not fall
to be made on the basis a prima facie case in relation to
each element of the suspected offence has to be made
out… (references omitted)

In this case, the Court found the officer believed in
good faith that the accused had committed the
offence of impaired driving (based on the accused’s
condition, the fact and nature of the accident, and the
officer’s experience with the accused on prior
occasions) and that bodily harm resulted (based on an
inference the officer made from the male bleeding
about the forehead and blood on his hand).

Arbitrary Arrest?

opened by a woman, the sister of the young offender.
As a police officer spoke to the woman, the young
offender came up a stairway to the entrance hall where
the officers were standing. It was unclear how the
officers came to be in the hallway. The officers did not
claim they were expressly invited in, however they did
not force their way in nor take advantage of an open
door. The Court found it was likely that, “as often
happens with Winnipeg’s cold climate, no impediment
was placed in their way in order that the conversation
might take place in greater comfort”. An officer
informed the young offender of the outstanding
warrant and asked if the young offender was willing to
come to police headquarters to deal with the matter.
The youth replied “sure” and the officer also told him
that police wanted to speak to him about some other
robberies. The Court framed this encounter in the
following manner, at para. 7:
At no time did the police officers stray beyond the
entrance hall. They did not tell the young offender
directly that he need not agree to accompany them, but
the words spoken were clearly in the nature of a request
rather than a demand. There was no attempt to place
the young offender under arrest until he had agreed to
accompany them to headquarters.

In finding the arrest lawful under subsection 495(1)(a)
of the Code, the Court found the reasonable ground
standard “serves to shield an arrest, made in
accordance with the requirements of subsection
495(1)(a) and suffering no other defect, from attack
on the basis of arbitrariness, at least at the point the
arrest is made”.

Once at police headquarters, the young offender made
a full confession of his involvement in two robberies
after being provided his full Charter rights and the
additional rights accorded to young offenders. The
young offender sought to have his confession excluded
as it was the product of a s.8 violation; the entry of
the police into the residence.

The Saskatchewan Court of Appeal set aside the
judgement of the Court of Queen’s bench and restored
the conviction.

Two appeal court judges, in the absence of clearer
evidence, were unable to conclude that the officers
had “informed consent” to enter the dwelling.
“Assuming” there was a breach of s.8 of the Charter,
the majority concluded, “any Charter violation was of a
technical nature”. Turning to the young offender’s
application to exclude the confession, the majority
held, at para. 21:

ENTRY INTO DWELLING
TECHNICAL VIOLATION:
CONFESSION ADMITTED
R. v. M.C.G., 2001 MBCA 178
Two police officers attended the
apartment of a young offender. The
officers were aware the young
offender had a warrant for his
arrest for failure to appear in court
on a robbery charge. The officers did not possess the
warrant and it did not authorize forced entry into a
residence. The officers knocked on the door and it was

Volume 1 Issue 13
December 2001

Finally, in my opinion, the circumstances surrounding the
arrest of the young offender do not constitute a serious
Charter breach. The police officers acted in good
faith. They did not mislead. They did not overstep what
they believed to be a tacit invitation to cross the
threshold. The arrest occurred only after the young
offender agreed to accompany them to deal with the
subject-matter of the outstanding warrant and to
discuss other matters. It was implicit in the language

4

used that the young offender had the right to
refuse. No force was exercised by the police.

The confession was admitted. Kroft, J.A. of the Court
agreed with the disposition of the appeal by the
majority, but disagreed that there was even a technical
breach of the Charter regarding police entry, and at
para.27 stated:
I must say, however, that in my opinion, there was no
unlawful arrest or breach of s. 8, even of a technical
nature. I am unable to see how this case can turn on
whether the arrest of the young offender took place on
one side of the door sill or the other.

Note-able Quote
“It seems reasonable that a police officer should be
given some freedom to exercise his discretion, based
on experience and knowledge, to determine if there are
reasonable grounds and should not be subject to
constant supervision. A police officer can only do his
job if he is given some flexibility and can exercise his
own judgment1”. B.C. Co.Crt. Justice Campbell

ISP ACTING AS AGENT IN
FORWARDING E-MAIL TO
POLICE
R. v. Weir, 2001 ABCA 181
An Internet Service Provider (ISP),
who at the request of the accused
was conducting a routine repair of
the accused’s electronic mailbox,
discovered an e-mail message that appeared to contain
child pornography and called police. Police requested
the ISP forward a copy of this message. The police,
using this information, obtained a search warrant for
the accused’s residence and seized the accused’s CPU
and some diskettes that contained child pornography.
Included in this data were the attachments from the
original message forwarded to the police from the ISP.
The accused was convicted at trial but appealed his
conviction arguing the ISP acted as an agent of the
state in both opening and in providing the police with
the initial e-mail which provided the basis for the
warrant and therefore his right to be secure against
unreasonable search or seizure was violated.

1

The Alberta Court of Appeal held the ISP was not an
agent of the state at the time it opened the e-mail and
before its contact with the police. However, the ISP
was acting as an agent when it sent a copy of the
message to police at the officer’s request; thus there
was a warrantless search. In upholding the validity of
the warrant, the Court found the information “obtained
from this warrantless search was nothing more than a
confirmation of the information…already received from
the employees of the ISP”. In short, even without this
confirmatory information there still remained
sufficient cause to issue the warrant. The warrant was
valid and the evidence was admissible.
Complete case available at www.albertacourts.ab.ca.

POLICE INTERVENTION
CHECKLIST FOR
ENDANGERMENT
Part 6 of 6

Mr. Richard Dolman
The following notes are from an Internet website
under development at the Justice Institute of British
Columbia to assist police in handling a psychiatric crisis
and to promote wider understanding of mental illness.
The project was initiated by the BC Association of
Chiefs of Police Mental Health Committee, and
supported by a multi-agency group. Funding is from the
Ministry of Health Services and the Justice Institute.
Comments and suggestions to the author are welcome
at: almond@direct.ca
One of the key decisions police need to make when
intervening under sec.28(1) of the Mental Health Act
(MHA) is whether the subject’s behaviour is “likely to
endanger” themselves or others. If the answer is yes,
and the subject appears to have a mental disorder (as
described in Part 5 of this series), then police may
apprehend and transport the person to hospital. The
degree of apparent mental disorder must be more than
eccentricity or odd ideas. The MHA says it must
cause serious impairment of the subject’s ability to
react appropriately to their environment, or to
associate with others. A suicide attempt, violence or
psychosis are strong examples.
The degree of endangerment is not defined for police
purposes in the MHA, but includes likely endangerment
as well as actual immediate danger. Here are examples

R. v. Gordon [1984] B.C.J. No. 1200 (B.C.Co.Crt.)

Volume 1 Issue 13
December 2001

5

of endangerment, followed by key questions and
answers:
•

Apparent or actual attempt at suicide or serious
self-harm.

•

Strong suicidal or self-harm ideas or impulses, with
history of previous attempts or with a plan.

•

Unprovoked threats of violence or committing
unprovoked violence to self or others.

•

Causing or inviting unprovoked serious injury or
damage to self or others.

•

Taking uncontrolled and reckless risks to physical
well-being.

•

Suffering - Gross self-neglect causing poor
personal hygiene, injury, infection, starvation, or
abuse

•

Acting or likely to act unsafely due to command
hallucinations
(feels
compelled
by
dangerous/harmful voices or visions to engage in
unsafe behavior).

•

Acting or likely to act unsafely on delusional
beliefs (examples: Paranoia - “enemies, aliens.”
Grandiosity - “special powers,” superhuman).

•

Unsafe status increased by: a) Undiagnosed or
unmedicated mental disorder with increasing
symptoms; b) Psychiatric symptoms are coupled
with chronic intoxication - drug or alcohol abuse;
or with treatment failure; or lack of support from
health care system; or severe stresses in daily life;
c) Previous history of high-risk or violent behavior
or disabling symptoms; d) Pattern of deteriorating
mental and physical health; e) Previous mental
crisis, previous hospitalization; f) Family/friends
concerned about changes in habits, behavior or
moods.

Q: Is there a duty to warn to protect public
safety? Yes. If a subject with an apparent mental
disorder seriously threatens a specific person or group,
then police have a duty to protect public safety.
Others, including health professionals also may have an
ethical or legal duty to warn or protect public safety,
which over-rides privacy concerns. BC privacy
legislation does not prevent public agencies from
releasing client information to third parties where the
client consents, or the info will be used for the same

Volume 1 Issue 13
December 2001

purpose for which it was collected (e.g. continuity of
care), or in compelling circumstances that affect
anyone’s health or safety (see Appendix N in the Guide
to the BC Mental Health Act).
Q: What if criminal behavior is involved, as well as
apparent mental disorder? For a minor offence, police
have limited discretion to informally divert the subject
to a hospital, or arrest and take the subject to a police
lockup, where the subject can have a medical
examination. The court has several options including
diversion, remand, or stay of proceedings. Possible
outcomes: Acquittal; Conviction; Unfit to stand trial or
Not Criminally Responsible due to Mental Disorder,
with committal to Forensic Hospital; or conditional
release orders.
Q: What if the situation does not meet police
criteria for intervention? a) Advise the family or
friends about alternative intervention via judicial
warrant, which has broader criteria (aimed at
preventing substantial mental or physical deterioration,
or protecting the person or others). Anyone can apply
for a warrant to a judge or justice of the peace using
Form 9, (see pages 62-3 in the Guide to the BC Mental
Health Act); b) Telephone the subject’s doctor or case
worker or family; c) Refer the subject to a Mental
Health Center, outreach, advocacy, consumer support
groups, or after-hours emergency mental health
services.
Q: What if subject is unruly at hospital? Police
have authority to help control an unruly subject. Police
need to attend at hospital until authorized medical
staff can take over custody safely.
Editor’s Note: The Police Academy would like to thank
Mr. Richard Dolman for his contribution of the 6 part
Mental Health Act series adapted exclusively for the
“In Service:10-8” newsletter.

POLICE PAY USER TO TAG
DEALER: NO ABUSE OF
PROCESS
R. v. Win, 2001 BCCA 604
The accused sold crack cocaine to an
undercover police officer on seven
separate occasions. In total, the
accused sold the officer 15.4 grams
of crack cocaine for $1,225. Prior to

6

the purchases, the police received information that the
accused was selling crack cocaine out of his Quick Stop
Food Store. The officer attended the store, advised
he wished to make a purchase, produced a $20 bill, but
the accused informed the officer that he did not know
what the officer was talking about. About one month
later, the officer went to a nearby pub and asked a
group of labourers where he could “score”; the officer
did not mention crack cocaine nor ask anyone to obtain
drugs for him. One of the labourers offered to buy the
officer a rock of crack for $25 but would not take the
officer to the source. The officer gave the man the
money and the man left. The officer exited the pub
and observed the man coming out of the accused’s
store. The man delivered the cocaine to the officer
and informed him that he obtained it from “a store at
the corner”. The officer left the pub and attempted a
direct purchase from the accused but was
unsuccessful. About two weeks later the officer
returned to the pub and gave another man $45 for the
delivery of 2 rocks of cocaine. The following day a
third man in the pub took the officer to the store and
introduced him to the accused. In exchange for the
introduction, the officer agreed to pay the third man a
small fee. As a result, the officer subsequently made
several purchases from the accused.
The accused argued that the officer committed an
illegal act by paying the three private citizens (two in
obtaining the drugs, one for the introduction) and was
therefore aiding and abetting the men, who were not
employed as police agents. In doing so, it was
contended that the police conduct amounted to an
abuse of process and the accused was entitled to a
judicial stay of proceedings. In agreeing with the trial
judge’s conclusion that there was no abuse of process,
the BCCA dismissed the accused’s appeal finding the
conduct of the police “would not shock the conscience
of the community”:
[The officer] did not recruit the three men to commit a
criminal offence for him. He simply responded to their
offers to assist him in the purchase of drugs. It is
common practice for undercover drug officers to make
contact with drug dealers through drug users. In my
opinion there was no illegality in the conduct of [the
officer] in his dealings with the men in the pub.

APARTMENT ENTERED &
SEARCHED W/O WARRANT:
EVIDENCE ADMITTED
R. v. Hofung (2001),
Docket:C31904 (OntCA)
An undercover police officer purchased
heroin several times from a suspect.
During a culminating drug deal ending
the
4-month
undercover
drug
investigation, police arrested one
suspect in a car outside an apartment and a second
suspect in the lobby of the same apartment building
after he had exited an apartment unit. The officers
concluded that this unit was the source of the drugs,
that a quantity of drugs remained inside the apartment,
and the person who supplied the drugs to the two
arrested suspects was in the unit. Police forced entry
into the apartment without a warrant and arrested the
accused. Several firearms were observed in a bedroom
cabinet. Police secured the apartment and obtained a
search warrant to seize the weapons. Police also located
two loaded handguns under a couch in the living room.
The Ontario Court of Appeal assumed (without deciding)
that the warrantless police entry and search of the
apartment was a violation of s.8 Charter. Following a
s.24(2) Charter analysis (in deciding if the admission of
the evidence would bring the administration of justice
into disrepute) the Court admitted the evidence. In
admitting the evidence, the Court recognized that “a
warrantless arrest and search incidental thereto in a
private dwelling is a serious Charter violation” but the
police had “well-founded” concerns “about weapons inside
the apartment” in light of the unfolding events that day.
Complete case available at www.ontariocourts.on.ca.

CLASS 84 GRADUATES
The Police Academy is pleased to
announce
the
successful
graduation of recruit Class 84 as
qualified municipal constables on
November 16, 2001.

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

Volume 1 Issue 13
December 2001

7

www.jibc.bc.ca.

DELTA
Cst. Bill Kim
ESQUIMALT
Cst. Teri-Lynn Potter
Cst. Kim Taylor
NEW WESTMINSTER
Cst. Andrew Perry
PORT MOODY
Cst. Chris Burtch
STL’ATL’IMX
Cst. Dwayne Honeyman
VICTORIA
Cst. Marie Bourque
Cst. Michael Miller

VANCOUVER
Cst. Daniel Ames
Cst. Christopher Berda
Cst. Jason Doucette
Cst. Hans Dykman
Cst. Paul Gies
Cst. Philip Heard
Cst. Derek Hill
Cst. Desiree Luebkemann
Cst. Ryan Masales
Cst. Ara Pehlivanian
Cst. Aaron Roed
Cst. Ryley Swanson
Cst. Mark Tasaka
Cst. Michael Thrower

Congratulations to Cst. Derek Hill
(Vancouver), who was the recipient of
the British Columbia Association of
Chiefs of Police Shield of Merit for best
all around recruit performance in basic
training.
Cst.
Michael
Thrower
(Vancouver) received the Abbotsford Police Oliver
Thomson Trophy for outstanding physical fitness. Cst.
Mark Tasaka (Vancouver) was the recipient of the
Vancouver Police Union Excellence in Academics award
for best academic test results in all disciplines. Cst.
Daniel Ames (Vancouver) received the British Columbia
Federation of Police Officers Valedictorian award for
being selected by his peers to represent his class at the
graduation ceremony. Although not formally recognized
at the graduation ceremony, Cst. Hans Dykman
(Vancouver) was the recipient of the Abbotsford Police
Recruit Marksmanship award for highest qualification
score during Block III training (50/50).

UPCOMING POLICE ACADEMY
COURSES
The 2002 calendar of courses
and programs offered by the
Police Academy at the Justice
Institute of British Columbia is
now available. Call (604) 5285753 to have one mailed to you,
or
view
it
online
at

Volume 1 Issue 13
December 2001

In addition to the regularly scheduled in-service
courses offered by Advanced Programs at the Police
Academy, several specialty courses are being offered
in 2002 that are open to all members:
• LSI Course on Scientific Content Analysis
(Statement Analysis)
February 12 – 14, 2002 Basic course, $775 per
participant.
February 18 – 19, 2002 Advanced course, $665 per
participant
• LSI Course on Art of the Confession
February 20 – 21, 2002, $665 per participant
• Reid Technique of Interviewing and Interrogation
April 22 – 24, 2002, Basic course, $540 per
participant
April 25, 2002, Advanced course, $220 per
participant
Note: for participants who register for both the Reid
Technique courses, a reduced registration rate of $710
is available.
To register, contact the Justice Institute of British
Columbia Registration Office at (604) 528-5590.
Registration is open to all members.
Course
participants will receive a receipt for income tax
purposes.

LACK OF POLICE CANDOUR
RESULTS IN ACQUITTAL
R. v. Owen,
(2001) Docket:C32794 (OntCA)
The Ontario Court of Appeal
overturned the conviction of the
accused who had been found guilty
of assaulting a police officer and
sentenced to 22 days in jail and one
year probation. The Court found the trial judge had
erred when he applied a different standard in
assessing the credibility of the accused than that of
the police officers. In this case, the trial judge
rejected the evidence of the accused largely on the
grounds of his demeanour and identified only one minor
contradiction; whether the blinds in the room where
the assault occurred were open or closed. The police
officers denied collaborating in the preparation of

8

their notes although the trial judge found they had.
Despite this flaw in the police officer’s credibility
evidenced by their lack of candour and the “importance
of their notes as a record of the alleged assault”, the
OntCA found the trial judge “took a much more lenient
approach when assessing the evidence of the police
officers despite a serious weakness in their testimony”.
In doing so, the trial judge committed a legal error in
applying a stricter standard of scrutiny to the accused
than he did to the Crown witnesses. As a result, the
Appeal Court entered an acquittal.
Complete case available at www.ontariocourts.on.ca.

IMPORTANCE OF OFFICER’s
NOTES UNDERSCORED
R. v. Hallman, 2001 BCSC 1355
Police received an anonymous Crime
Stoppers tip that a person named
“John”, who drove a later model
Corvette, was growing marihuana. A
police officer walked by the premises, noted no odour
of marihuana, and thus considered the tip to be
unsubstantiated. Another Crime Stoppers tip was
received and the tipster provided a licence number of
the Corvette. Police queried the license number and
found it to be registered to the accused. The officer
attended the residence and picked up the garbage bag
set out in the alley, examined its contents, and found it
to contain an airline ticket and employment insurance
statement in the accused’s name and some empty
containers of nutrients for hydroponics. Again, no
odour of marihuana was detected. The following day
the officer went onto the neighbour’s property, with
permission, and smelled growing marihuana and
observed one basement window covered with material
and the upstairs inside drapes closed; no condensation
was observed. Police made no notes of the visit. The
following day police attended a justice of the peace
with an unsworn information containing the basic
information; but there was material facts not disclosed
such as; no smell of marihuana on the day the officer
examined the garbage bag, police checks of the name
and vehicle provided no further information,
condensation was not noted on any of the visits, the
information stated the basement windows were
covered when the officer only observed one of the
three windows, and the information described the

Volume 1 Issue 13
December 2001

second tip as an “update” without confirmation the two
Crime Stoppers tips were from the same source.
In addition, the officer failed to describe the smell
detected as “growing” marihuana, although the J.P.
wrote this into the information. The JP also added an
additional statement about the officer’s familiarity
with marihuana growing operations. Although the
officer testified the additions were made before the
information was sworn, it was apparent from the face
of the affidavit that it was re-sworn following the
addition of the amendments. The only note in the
officer’s notebook was “checked and signed by JP”.
After returning to the police office and briefing other
officers, police attended to the residence to execute
the warrant where the front door of the residence was
kicked in. One officer testified police knocked while a
second officer could not recall whether he knocked or
rang the doorbell. The only note in the officer’s
notebook was “hard entry”. Among other issues, the
accused argued both his s.8 and s.10 rights were
infringed on the following basis:
•
•
•
•

conduct of the J.P. (s.8)
sufficiency of the information to obtain (s.8)
the no-knock procedure (s.8)
denial of access to counsel (s.10)

Conduct of the JP
The Court found the justice of the peace had crossed
the line between remaining impartial and becoming an
agent of the police when he actively suggested material
changes to the information to obtain and made the
additions himself after the affidavit had been sworn.
The manner in which the warrant was issued was
unreasonable and thus a violation of the accused’s s.8
right to be secure from unreasonable search and
seizure.

Sufficiency of Information
In addressing whether the information itself was
sufficient to support the issuance of a search warrant,
the Court was not satisfied the information was
reliable because of misleading assertions and the
failure to mention material facts. After excising the
unreliable information, the only item left was the
nutrient label found in the garbage. This alone was
insufficient to justify the search and therefore the
search was unreasonable.

9

No-Knock Procedure
With respect to the entry, the Court found the manner
of entry was unreasonable because the police failed to
first knock and announce their presence prior to entry.
The officer’s lack of notes and the accused’s testimony
that he was a light sleeper and awakened by a loud bang
(the door being kicked in) was sufficient to convince
the Court police failed to knock:
I conclude that the police entered the residence without
first knocking. The door was kicked open with one blow
that awakened the accused in his bedroom down the hall
on the main floor. The unlawfulness of this entry into a
private residence has been made clear in British Columbia
in several authorities….There was no real threat of
violent behavior here and no real attempt by police to
suggest that there was. Nor was any other explanation
offered for the conduct. (references omitted)

Access to Counsel
The accused argued that his right to counsel was
violated because he was denied an opportunity to call
counsel at the time of his arrest; at his home. The
officer testified the accused said he would call his
lawyer at the police station. The Court found the
accused failed to establish his right to counsel was
violated commenting the notes of the officer were
“clear,
made
contemporaneously,
and
were
unchallenged”.
In excluding the evidence and acquitting the accused,
the Court stated, at para.46:
The evidence obtained is real evidence of a relatively
unsophisticated marihuana grow operation. It existed
irrespective of the violations. In this case, the violations
are serious. The justice of the peace erred in his duty of
impartiality. The officers failed to provide full and frank
disclosure to the issuing justice of the peace, following a
practice of providing only information that furthered the
investigation without regard to whether the information
undisclosed was of a material fact. The hard entry to a
residential premise is always a serious matter especially
when no satisfactory explanation is offered. This is
compounded here by the fact that police obtained the
search warrant in a manner that violated the accused’s s.
8 Charter rights. Exclusion of the evidence is warranted
here despite the seriousness of the charges given the
seriousness of the combined breaches.

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

Volume 1 Issue 13
December 2001

BAD HEADACHE NO EXCUSE
FOR GUILTY PLEA
R. v. Eastmond,
(2001) Docket:C33638 (OntCA)
The accused, who was represented
by counsel, pled guilty to assault.
During the preparation of a presentence
report,
the
accused
advised the probation officer he
knew his actions were “inappropriate” but denied
portions of his statement to police and stated he only
pled guilty because his lawyer told him to do so. As a
result, the accused’s lawyer withdrew, and new counsel
argued that his guilty plea should be struck because
the accused did not understand the proceedings, was
confused, upset, and he had a bad headache when he
pled guilty. The accused had a grade six education, his
ability to read and write English was limited, and he
had been before the criminal courts on four previous
occasions. In rejecting the accused’s appeal that the
guilty plea should be struck, the Ontario Court of
Appeal found the accused failed to discharge the onus
of establishing the plea was invalid:
A guilty plea entered in open court, particularly by an
accused represented by counsel, is presumed to be a valid
plea. An accused seeking to set aside that plea bears the
onus of demonstrating that the plea is not valid. There is
nothing in the record of the proceedings in which the
plea was entered that raises any concern about the
validity of the plea, or which would have necessitated
that the trial judge make some specific inquiries of the
appellant personally to satisfy himself that the plea was
valid. The facts read in by the Crown were
straightforward, simple and fully supported the
allegation. The accused pleaded guilty personally and was
represented by experienced counsel who acknowledged in
open court the correctness of the facts referred to by
the Crown.

Complete case available at www.ontariocourts.on.ca

ODOUR OF MARIHUANA
JUSTIFIES SEARCH
R. v. Cornell, 2001 BCPC 265
Police were working a Counterattack
roadblock when they stopped a
vehicle driven by a male and
occupied by the accused. The

10

officer attending to the driver’s side of the vehicle
“discerned the smell of smoked marihuana emanating
from the vehicle”. As a result, the officer directed
the driver to pull off to the side of the road. A second
officer also attended to the vehicle and spoke to the
passenger (the accused). The officer asked the driver
to step from the vehicle, searched him and the vehicle,
but found nothing. The cover officer dealing with the
accused (passenger) also detected a “fresh smell of
smoked marihuana” emanating from the vehicle, and
after asking the accused to exit the vehicle and
entering into a conversation smelled smoked marihuana
on the breath of the accused. The officer formed the
opinion he had reasonable grounds to believe an
offence had just been, or was being committed. The
officer detained the accused for possession of a
controlled substance, provided the appropriate
warnings, and searched him. The officer found a white
substance believed to be cocaine on the accused that
led to the charges before the Court.
The accused argued the odour of marihuana emanating
from a motor vehicle together with the smell of
marihuana on the breath of the person did not justify
the personal search of the accused. In rejecting the
accused’s submission, the Court held, at para. 17:
…when a person detects an odour of marihuana, there is a
reasonable causal connection to believe that the person
who is in a confined space from which the odour is
emanating may reasonably be suspected to have been
involved in the creation of the smoke.

And further at para. 21:
The question is whether experienced police officers who
detect a distinct odour of smoked marihuana have
reasonable and probable grounds to believe that an
offence has been committed or is still being committed.
In all the circumstances that are described to me in this
case, it is my view that [the officer] had reasonable and
probable grounds to form that belief, to detain, and to
undertake a search incidental to that detention.

In finding the search lawful, the cocaine evidence was
admitted and the accused was convicted.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
“Just because it’s common sense doesn’t mean it’s
common practice.” Will Rogers

Volume 1 Issue 13
December 2001

B.C.’s TOP COURT RULES LAW
OFFICE WARRANT PROVISION
UNCONSTITUTIONAL BUT
SUSPENDS REMEDY
Festing v. Canada, 2001 BCCA 612
In a 2-1 decision the British
Columbia Court of Appeal struck
down the provisions of s.488.1 of
the Criminal Code respecting the
mechanism for claiming solicitorclient privilege of documents seized from law offices
under a warrant. Furthermore, the Court found “that
s. 487 of the Code breaches s. 8 of the Charter to
the extent that it authorizes the search of law
offices and the seizure of documents therein in the
absence of adequate safeguards for solicitor-client
privilege”; safeguards s.488.1 does not adequately
address. As a remedy, the Court held the words
“other than a law office” should be read into the
provisions of s.487:
s.487(1) Criminal Code
A justice who is satisfied by information on oath in
Form 1 that there are reasonable grounds to believe
that there is in a building, receptacle or place, other
than a law office, . . . .
However, the Court suspended both the striking
down of s.488.1 and the reading in of “other than a
law office” into s.487 pending the decision of the
Supreme Court of Canada in four related appeals
originating from Ontario, Alberta, Newfoundland, and
Nova Scotia scheduled to be heard this month.
Complete case available at www.courts.gov.bc.ca.

HIT & RUN: AVOIDING
DETECTION DIFFERENT THAN
AVOIDING IDENTIFICATION
R. v. Perreault, 2001 BCSC 1481
The accused was operating a vessel
in English Bay to see a fireworks
display when his boat collided with
another vessel at about 10:30 pm
causing
irreparable
damage.
Immediately following the accident, the accused asked

11

the damaged vessel operator (victim) whether he had
any insurance. The victim responded he did not. The
accused provided a cell phone number of a friend who
was on board another boat in English Bay who may be
able to assist. The victim called the number but there
was no response. The victim told the accused that his
two passengers had been injured and that he was going
to call 911. As he made the call, the accused left the
area; he did not leave his name nor render any
assistance. Four hours after the accident the accused
called police to report the accident and ensure
“everything was okay”.
The accused testified to the following: the boat he
collided with had no lights; during the collision he was
knocked down and was cut over his eye; his passenger
was hysterical and he believed she had a broken arm;
he asked if the others on the victim’s boat were okay
and received a response they were fine; he gave his
friend’s cell phone number for assistance; he left
because his passenger was panicky; he had no reason to
believe the other people required assistance; and he
had not given his name because no one asked for it.
In its analysis, the Court acknowledged s.252 of the
Criminal Code is to be read disjunctively; if the accused
fails to do any one of the activities prescribed by the
section, it is presumed their failure to do so was for
the intent to escape criminal or civil liability. The Court
dismissed the accused’s appeal and accepted the trial
judge’s rejection of the accused’s evidence as to why
he left the scene of the collision without leaving his
name and address:
The evidence that the [accused] telephoned the police to
report the accident four hours after the event is not
incongruent with a finding that at the time he left the
scene of the collision without giving his name or address
he did so “to avoid detection and with intent to avoid civil
or criminal liability or both”.
Additionally, in my view, the evidence that the [accused]
provided the cellular telephone number of a friend…
through which it may have been possible to eventually
have identified him is also not incongruent with the trial
judge’s ultimate finding. The term “avoiding detection” is
not synonymous with avoiding identification. Avoiding
detection has a broader meaning than avoiding
identification and includes the notion of taking action to
avoid the detection of facts which may lead to criminal or
civil liability. For example, if an accused is intoxicated
and stops at the scene of an accident he is involved in,
but leaves before the police arrive it could be concluded
that he left to avoid detection of his condition but not
necessarily his identity.

Volume 1 Issue 13
December 2001

The [accused’s] removal of himself from the scene
without leaving a name or address would have the effect
of preventing an immediate follow-up on his state or his
or his passenger’s immediate version of the events by any
investigating authority and could impede the progress of
any investigation into his civil or criminal liability.
Although the [accused] did leave information … (his
friend’s cellular telephone number) that may have led to
his identification eventually, that has been held
insufficient to discharge the duty in s. 252(1). (emphasis
added)

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

SENIOR OFFICER
CHALLENGES APPOINTMENT
OF CHIEF & DEPUTY
Stuckel v. Abbotsford Police Board,
2001 BCSC 1492
A senior police officer with the
Abbotsford
Police
Department
recently had his application in
Supreme Court to set aside the
Police Board’s appointment of a new
Chief Constable and Deputy Chief Constable dismissed.
Following the resignation of the former police chief,
the Police Board did not announce the vacancies nor
conduct a competition prior to appointing the new chief
and deputy. The senior officer argued that the police
board was obligated to hold a competition for the
vacant positions and their failure to do so was unfair.
In dismissing the application, Grist J. stated:
The petitioner's application rests upon there being a duty
owed to him by the Police Board requiring a process of
appointment that would make the Chief Constable and
Deputy Chief Constable positions the subject of a
competition open to the Senior Officers of the
Department. [T]his obligation can only be found in
circumstances where a legitimate expectation of such a
practise is founded on the past conduct of the Board or
on a personal assurance to the petitioner.
The material falls short of establishing a personal
assurance. The petitioner's evidence is that on an earlier
occasion he was encouraged to remain with the
Abbotsford force by the former Chief Constable. He was
told that if he remained with Abbotsford he could
expect advancement. At its strongest, this assurance
does not stipulate any particular process nor could the
Chief Constable bind the Board in its power to appoint to
the two senior positions.

12

And further:
Lastly, the evidence of past appointments does not
demonstrate a practise of conducting competitions in
every case, preceding senior appointments. The Board has
relied in the past on assessments formed as a result of
previous competitions rather than calling for new
competitions. The impugned appointments appear to have
been determined in like fashion. The past experience
cannot therefore found a legitimate expectation of a
competition in this instance. Accordingly, the petitioner's
application must be dismissed.

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

SEARCH INCIDENT TO
ARREST DOES NOT REQUIRE
INDEPENDENT GROUNDS TO
SEARCH
R. v. Le, 2001 BCCA 658
Police received information from a
reliable informant that narcotics
were being sold from a rooming
house. As a result, the officer
walked by and observed a few people
push a buzzer on the building, enter, and exit shortly
thereafter. The officer was familiar with the building
from a drug search conducted several years earlier.
The following day the officer set up surveillance and in
a 50 minute period observed 8 people push the buzzer,
enter, and “a moment or two later” exit. One of the
persons was observed smoking crack cocaine after
leaving. The next day, an undercover officer went to
the building and made a purchase from an occupant of
the upstairs suite. Another officer also had
independently received information from an informant
about drug trafficking occurring at the building. Police
applied for and obtained a warrant to search the upper
rear suite of the building. During the time police were
obtaining a warrant, police observed 12 other people
enter and exit the building.
Police executed the warrant and an officer, who was
the last officer to enter the suite, found the accused
just inside the front door. Among three other persons
arrested in the suite, the accused was arrested for
possession of a controlled substance for the purpose of
trafficking and advised of his rights. The officer who
arrested the accused turned him over to a second
officer who identified the accused from a driver’s
licence that showed an address other than the one

Volume 1 Issue 13
December 2001

being searched. The officer found a key to the suite,
$2840 in his front pocket including $140 buy money
used by police earlier, $465 in his wallet, and a book
containing only handwritten figures and calculations. At
trial the accused was convicted on three counts of
possession for the purpose of trafficking. The trial
judge found the search was not unreasonable because,
even if the officer did not have reasonable grounds
with respect to the accused, he at least had an
articulable cause and the resulting search would be
lawful as an incident to the detention for weapons or
evidence.
The accused appealed his conviction arguing the police
violated his rights to be secure from unreasonable
search and seizure. It was asserted the accused’s mere
presence in the suite for which the police had a search
warrant was insufficient to provide reasonable grounds
for arrest. The accused submitted the police lacked
reasonable grounds to arrest him “because there was
no information which identified him as one of the
persons involved in the drug trafficking activities
taking place from the premises before the police
executed the search warrant”. Thus, if the arrest was
unlawful the resulting search would be unreasonable
and therefore the fruits of the search are
inadmissible. In dismissing the accused’s appeal, the
BCCA found the police had the requisite grounds for
arrest. It was not necessary for the police to have
identified all the persons involved in the drug
trafficking activities to support reasonable grounds
that persons within the premises were involved. As a
result, the subsequent search was valid as an incident
to lawful arrest. Rowles J.A. for a unanimous court:
The scope of the long-standing common law power of
search incident to a lawful arrest was first considered by
the Supreme Court of Canada in Cloutier v. Langlois ….
That case established that a search incident to arrest
does not require reasonable and probable grounds beyond
the grounds that were sufficient to support the
lawfulness of the arrest itself.
The power to arrest, and the power to search as an
incident of arrest, are analytically distinct. The doctrine
of search incident to a valid arrest is not founded upon
considerations of reasonable grounds to search but
rather flows from the fact of the arrest itself, and the
need to prevent the escape of the arrested person, to
check for the presence of weapons, and "... the prompt
and effective discovery and preservation of evidence
relevant to the guilt or innocence of the arrested
person": …. An officer searching need not have any

13

reasonable grounds for believing that the search will be
productive of evidence of the offence or of weapons: …
The power to search upon arrest depends, however, upon
the existence of proper underlying grounds for a lawful
arrest. The search must have been carried out as a valid
"incident" of that arrest, and the search must be carried
out in a reasonable manner: … (references omitted,
emphasis added)

With respect to the trial judges comments concerning
the search for contraband as a result of the
investigative detention supported by articulable cause,
the BCCA found the judge erred in this regard:
[I]nvestigative detention does not provide a foundation
for a search for contraband”. (emphasis added)

issued without the information obtained from the search
of the garbage bags. The court held that placing the
material in the garbage signified that the material was
no longer something of value or importance to the person
disposing of it and there was no longer a reasonable
expectation of privacy in respect of it3. However,
garbage collected from a garbage can inside a hotel
room still occupied by a person was a seizure because it
was not yet abandoned (the person maintained control
over the garbage and therefore, a privacy interest in
it)4. In R. v. Wells (2001) Docket:C13744 (Ont.C.A.),
police rented a hotel room that had been previously
rented by a suspect in their murder investigation. Inside
the room police found evidentiary items (including a tshirt and jeans with blood stains) which were collected.
The Court held:

Searches incident to investigative detention are only
proper if conducted for safety reasons2.

In my view, the evidence reasonably supported the
conclusion that, in his haste to leave the jurisdiction, the
[accused] abandoned the items left in his hotel room.
Furthermore, the appellant was delinquent in his rental
payments and he probably was not maintaining any further
lawful possession interest in his personal belongings in the
hotel room. (emphasis added)

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

THE PRINCIPLE OF
ABANDONMENT: SEIZING
GARBAGE
Sgt. Mike Novakowski
Because s.8 of the Charter
focuses
on
a
person's
reasonable expectation of
privacy,
a
person
who
deliberately
abandons
or
discards material may no
longer have a subjective
expectation
of
privacy
concerning the material. Any s.8 Charter issue will focus
on whether the accused maintains any privacy interest in
the thing abandoned or discarded. If the Crown can
establish that the thing was “abandoned” (i.e. the
accused relinquished their privacy interest in the thing)
then there is no seizure and s. 8 does not apply. In R. v.
Krist (1995) 100 C.C.C. (3d) 58 (B.C.C.A.), police seized
two garbage bags that were left on the curbside for
sanitation pick up at a residence the police had
information was the site of a marihuana grow operation.
The seizure of the garbage bags by police was described
as "entirely speculative". After examining the contents
of the bags, the police applied for and were granted a
search warrant that would not have otherwise been

Where a person does not have an expectation of privacy
in a discarded item, such as a tissue obtained by police
for DNA testing, the item is not seized by police but is
gathered, and is admissible as an exhibit in the trial5.
Caution must be taken when relying on the principle of
abandonment respecting persons who are in the custody
and control of the police. In R. v. Stillman [1997] 1 S.C.R.
607, the police seized the tissue used by the accused to
blow his nose (for DNA testing) while he was in police
custody at the police station. The accused had earlier
refused to provide bodily samples. In addressing the
issue of abandonment in this circumstance Cory J. for
the majority at para.58:
The difficulty with this argument [of abandonment] is that
when an accused person is in custody, the production of
bodily samples is not an unforeseen occurrence. It is simply
the inevitable consequence of the normal functioning of
the human body. The police are only able to profit from
the production of the samples because the accused is
continuously under surveillance. For this reason it is
somewhat misleading to speak of “abandonment” in the
context of evidence obtained from an accused who is in
custody.

3
4
2

See Volume 1 Issue 7 of this publication.

Volume 1 Issue 13
December 2001

5

See also R. v. Hallman 2001 BCSC 1355.
R. v. Love (1995) 102 C.C.C. (3d) 393 (Alta. C.A.)
R. v. Legere (1994) 95.C.C.C. (3d) 139 (N.B.C.A.) at p.167.

14

A person in custody will necessarily produce items
containing bodily fluids and because of their custody will
have no choice but to discard those substances in
receptacles under police control. Whether a person
relinquishes any privacy interest in the samples while in
custody will be determined on a case-by-case basis.

CUSTOMS ARREST BY
MUNICIPAL OFFICER
JUSTIFIED UNDER CODE
R. v. Bienvenue,
(2001) 155 CCC (3d) 442 (QueCA)
The accused was stopped by a
municipal police officer after the
officer received information from
the RCMP that the accused entered
Canada at a closed border crossing. The RCMP were
alerted by the US Border Patrol after they detected
the crossing through electronic sensing and
photographic devices. The accused, who was driving a 4
x 4 truck matching the description provided, was
stopped 26 minutes after the detected crossing in an
area in which there was little traffic. In the vehicle
police located 200 bottles of wine from the United
States. The accused argued he was illegally and
arbitrarily detained contrary to the Charter, and that
the ensuing search and arrest also violated his rights.
The Customs Act creates a summary conviction offence
for persons who fail to forthwith present themselves
at the nearest customs office designated for that
purpose that is open for business. In addition, anyone
who fails to report all goods imported commits a dual
offence. The Quebec Court of Appeal found the
officer had reasonable grounds to believe an offence
was committed and the grounds offered were both
subjectively held and objectively verifiable. The
officer had received information from the RCMP that
he was entitled to rely upon and had made the stop at a
time after the crossing when the accused could not
have reported to an open Customs office. Since the
officer believed the accused “was in the process of
committing an offence under the [Customs] Act when
he intercepted him”, he was therefore entitled to
arrest pursuant to s.495 of the Criminal Code.
Alternatively, the Court also reviewed the search,
seizure, and detention provisions of the Customs Act.
In this regard, the Court found the word “detention” in

Volume 1 Issue 13
December 2001

s. 104 of the Customs Act does not refer to the
detention of people, but only to things. Thus the
officer was not entitled to simply rely on s.104 as a
power of detention. However, the municipal police
officer was entitled to detain the accused by operation
of s.99(1)(f) and s.104 of the Customs Act:
In exercising their powers of search, seizure and
detention of things, including conveyances, officers will
generally-if not invariably-interfere with the freedom of
movement of the persons whose conveyances are stopped
for that purpose.

Although a municipal police officer does not generally
have the authority of an “officer” as defined in the
Customs Act, s.104 allows an “officer” (which by
definition includes an RCMP member but not a municipal
member) to call on other persons to assist in exercising
any power of search, seizure or detention. Any person
so called upon is authorized to exercise these powers.
In this case, the RCMP called upon the municipal police
for assistance. Thus, the municipal officer acting under
s.104 was entitled to detain the accused by operation
of s.99(1)(f) which permits the stopping and searching
of conveyances.

OFFICER PROTECTED WHEN
ACTING ON INVALID
CPIC ENTRY
Lord v. A.G. Canada et al,
2001 BCSC 212
The plaintiff sued the Abbotsford
Police Department, among others,
alleging false arrest and false
imprisonment arising from the
arrest of the plaintiff. The
plaintiff’s wife also sought damages for nervous shock
resulting from her husband’s arrest and imprisonment.
The plaintiff was convicted of trespassing under the
Corrections and Conditional Release Act for refusing to
leave Kent Institution where he was visiting his son, an
inmate. The plaintiff was placed on probation for one
year with the condition that he not attend or enter any
federal institution in Canada. A RCMP detachment
entered the probation order on CPIC with the one-year
expiry date. The plaintiff appealed his sentence and his
probation term was reduced by 6 months.
Unfortunately, CPIC was not updated and maintained
the initial one-year probation order date. The plaintiff
began to visit his son again, this time at Matsqui

15

Institution. An incident occurred where the
Abbotsford Police were called and the officer who
attended queried the plaintiff on CPIC. On the basis of
the outstanding probation order entered on CPIC, the
officer arrested the plaintiff for breach of probation
and took him to the police jail.

Policing, along with the British
Columbia Association of Chiefs of
Police and the Justice Institute of
British Columbia (JIBC), will be
hosting the “2002 Diversity in
Policing Conference” at the JIBC.

The plaintiff informed the officer of the amended
order, but was unable to produce a copy. While at the
police office, the officer made two inquiries about the
status of the probation order with the RCMP agency
responsible for the CPIC entry. The officer was
advised the probation order was still in effect and
received a copy by fax. The plaintiff’s wife attended
the Abbotsford Police Department and advised the
station NCO that the probation order was no longer in
effect. The NCO told the plaintiff’s wife that he would
act on the new order if she could produce a copy. A
relief NCO released the plaintiff after the plaintiff’s
wife attended with a copy of the valid order. In
dismissing the action against the Abbotsford Police,
the Court noted an arrest based on an invalid court
order or warrant does not necessarily render the
arrest a false arrest:

The conference will emphasize the importance of
diversity in policing and will examine the following
values:
•
understanding individual communities better
•
building valuable trusting relationships
•
safety and security
•
community representation
•
proactively solving community concerns
•
community policing in action
•
responsive and sensitive police service
•
communities policing communities
•
the police are the community, the community
are the police
•
partners for life
•
stronger together

In this case, the police officers acted in good faith on
what they considered to be a valid warrant under the
authority of CPIC. They listened to [the plaintiff’s]
protests and made diligent inquiries to determine if the
Probation Order was defective. They asked him to
produce the documentation and they asked him if he
wanted to speak to a lawyer. They believed that if they
released him, he would return to the Institution and
continue committing the offence. It was unfortunate
that because the incident occurred on November 11, a
statutory holiday, the Court Registry was closed. He was
released when [the plaintiff’s wife] produced the
necessary documentation to show that he was not in
breach of the apparently valid Probation Order.

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

DIVERSITY IN POLICING
CONFERENCE
JANUARY 25-26, 2002
JIBC

“Working Together for
Safety & Security”

The British Columbia Special
Committee on Diversity and

Volume 1 Issue 13
December 2001

Location:

JIBC
715 McBride Blvd.
New Westminster, BC

There is no charge for this conference.
As the facilities can only hold a maximum number
of people, registration is required to reserve a
seat. Please contact the conference coordinator,
S/Sgt. Murray Lunn, via email at mslunn@jibc.bc.ca
to register and please be prepared to provide the
following information:
•
name
•
rank
•
organization
•
postal address
•
telephone number
•
email address.
Once all seats have been reserved, we will maintain
a waiting list in the event a seat becomes available.
For more information, check out the Police
Academy website at www.jibc.bc.ca or contact the
coordinator, S/Sgt. Murray Lunn at (604) 5285824.
For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police
Academy at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

16