ISSUES OF INTEREST
A Journal Devoted to Topical Policing and Legal Issues for Operational Police Officers in British Columbia

Vol.49No.1

Justice Institute of British Columbia - Police Academy

January, 1998

WARRANTLESS VEHICLE SEARCHES
.

· ~fi7' f~iii ~:i?i;>, .

.--~.~.,..

Bill Pake, B.A. (Hons.) (Police Academy)

: •j

Introduction
Stopping a vehicle on the street is
one of the most common activitl~s in
a patrol officer's day. From the most
routine stop an officer may uncover a
variety of other crimes. Given the way
the Charter has been interpreted by
the courts, police officers must be
careful When making these stops,
particularly when a search of the vehicle might become necessary. Any
search of a vehicle may be deemed
unconstitutional, especially if it is
done without a warrant. The cases
that have addressed the issue of vehicle searches are, in general, quite
confusing. Although there are a few
underlying principles that arise from
the cases regarding vehicle searches,
the validity of any search is always
dependant on the facts of the particular case. The most recent Supreme
Court of Canada decision on vehicle
searches, R. v. Belnavis, 1 did admit
evidence from a warrantless search.
However, the police must be very cautious, since this case was very dependant on the facts. This article is
intended to help police officers gain
an understanding of how the courts
decide if a warrantless vehicle search
is lawful and whether or not any evidence obtained during the search will
be admissible in evidence. With this

THIS ISSUE
Vehicle Searches . ... .. ... . ... ... ... ... .. ... ... 1
Making a Difference ........................ 2
Feeney Warrant ............................... 5
Articulable Cause ............................ 6
Operational Notes ............................ 7

knowledge, the police can properly take
action on the street.

Lawful Search Issues
In general, the courts address three
issues when deciding whether or not a
search is lawful under the Charter.
First, did the accused have a reasonable expectation ofprivacy?2 In making
a determination with respect to privacy
a court will consider the totality of the
circumstances. If the accused is found
notto have had a reasonable expectation of privacy, then there will have been
no breach of the Charter.
If the accused is found to have had
a reasonable expectation of privacy, the
second question asked by the courts
is whether the search itself was reasonable? In R. v. Collins, 3 the Supreme
Court of Canada held that there are three
elements that must be satisfied for a
search to be reasonable:
1. the search must be authorized by
law;
2. the law itself must be reasonable;
and
3. the manner in which the search is
carried out must be reasonable.
A warrantless search is considered
to be prima facie unreasonable under
s. 8 of the Charter. 4
Finally, where a court finds that a
search was not authorized by law, or
that it is not reasonable for other reasons, the court will consider whether
the evidence should be excluded under
s. 24(2) of the Charter. The key factor

,.,..:3

t: '""~..y r~ ···. .

l'-rF ::··

·~.~-flY\

m:~~~ fe~e~ination JJ;~~r

in
thl
is
or not the admission of the evidence
would bring the administration of justice into disrepute. There· are many
factors that are taken into account in
order to decide this question.

Facts of Belnavis
Belnavis was stopped for speeding
by an O.P.P. officer and failed to produce her drivers licence and registration. While Belnavis and a teenage
passenger were outside of the car, the
officer ran computer checks on the car
and Belnavis. While waiting for the
computer queries, the officer spoke to
another passenger in the car, Carol
Lawrence, who was still sitting in the
back seat. It was very crowded in the
back seat, as there were several full
garbage bags on the seat beside Lawrence. The bags appeared to be full of
new clothing with the price tags still
attached. Lawrence and Belnavis gave
differing explanations to the officer as
to the ownership of the bags. Given
that Lawrence was cramped in the
back seat and that there were conflicting stories as to the ownership of the
clothing, the officer believed that there
must be more clothing in the trunk. The
officer opened the trunk and found five
more bags full of clothing. Belnavis
was arrested for outstanding warrants.
The car was towed to the police station and the property seized. Belnavis
and Lawrence were subsequently

(Continued on Page 3)

1

Editor:
Craig MacMillan, B.A., M.A., LL.B. (B.C. Bar)

MAKING A DIFFERENCE
by Paul Tinsley (Police Academy)

Associate Editors:
Steve Watt, M.B.A. (Director, Police Academy)
Paul N. Tinsley, B.A., M.A. (Police Academy)

Editorial Board:
Jack L. Gibson, LL.B. (Crown Counsel)
Judge James W. Jardine (B.C. Provincial Court)
Robert Kroeker, B.A., LL.B. (Saanich P.D.)
Darryl Plecas, Ed.D . (U.C.F.V.)
Judge K.J. Scherling (B.C. Provincial Court)
Harry Stevens, Ph.D. (Police Psychologist)
Sheila Sullivan, B.A., LL.B. (Police Academy)
A. Jeffrey Wright, B.A., M.A., LL.B . (RCMP)

Technical Assistant:
Robyn Towle, Police Academy (528-5779)

CirculatWn:
Dianne Joyal, Police Academy (528-5778)

Publication:
This Journal is published four times a year (January,
April, July, October). The annual subscription rate is
$15. Ratesandspecificationsforadvertisingareavailable from the Technical Assistant Articles appearing
herein do not necessarily express the views of the
Justice Institute, Editor, Associate Editor, Editorial
Boardortheauthor's agency or employer. (ISSN:08408254)

Contributors:
Submissions(750 - 1500 words) on topical operational issues are invited from police officers and individuals in associated professions or disciplines. Articles must be typewritten, double-spaced on letter
size paper, quotations must be indicated, and references fully cited in endnotes. Diskette submissions
in ASCII format (i.e. "Text Only") are preferred.
The Editor reserves the right to alter articles to conform with publication requirements. Contributions
not accepted for publication will not be returned to
the author unless accompanied by a stamped, selfaddressedenvelope.

Reproduction:
All rights reserved. No part of this publication may
be reproduced in any form without prior written permission of the Editor or Associate Editor. A limited
licence to reproduce this publication for training or
education purposes is granted to police departments
and police officers.© 1997.
Correspondence:
All correspondence, subscriptions, payments,
changes of address, contributions, or inquiries may
be sent to: The Editor, Issues of Interest, JIBC
Police Academy, 715 McBride Blvd., New Westminster, B.C., V3L-5T4. Telephone (604) 5285779, Fax: (604) 5 28-5754 or E-mail
ptinsley@jibc.bc.ca

2

The Editorial Board and the Police
Academy wish to congratulate Mr. R.J.
(Bob) Hull on his retirement as Director
of the Police Academy, Justice Institute
of British Columbia (J.l.B.C.), and
Associate Editor of Issues of Interest.
Bob started out as a "poor farm boy from
Saskatchewan" (as he always liked to
say), and in 1956, at the mature age of
18 years, began his policing career with
the Royal Canadian Mounted Police
(R.C.M.P.). Bob served in many
detachments across Canada, both large
and small, from the east to the west.
As Bob always had an interest in
training, he served for five years at the
R.C.M.P. Recruit Training Academy
(Depot) in Regina, Saskatchewan, and
another five years in advanced training
at Fairmont Academy in Vancouver,
British Columbia. In 1980, after 25
years with the R.C.M.P., Bob retired with
the rank of staff sergeant and accepted
a position as Program Director, Recruit
Training, at the J.l.B.C., Police

Academy. After a short term as
Program Director, Bob was promoted
to Deputy Director, and in 1995 was
appointed as Director. For over 40
years, then, Bob has served the police
community. In his 25 years in recruit
and in-service training, Bob has had a
profound influence on policing, and he
will be greatly missed. At the Police
Academy, Bob introduced a tradition
at the recruit graduation ceremonies,
which is a fitting metaphor for a very
distinguished career. Bob would close
the graduating ceremonies by
introducing a ceremonial piece of music
(often heard in the military), entitled
"Sunsef', by saying, "Let us all pause
with the members of the graduating
class and reflect upon their
accomplishments and their future
endeavors in the police service." Bob,
you can now proudly reflect upon your
many accomplishments in policing, and
we wish you nothing but the best in
the future.

Warrantless Vehicle Searches
continued from page 1
charged with possession of stolen
property.
The Ontario Court (General Division)
acquitted both accused. Crown appealed to the Ontario Court of Appeal, 5
where the acquittals were quashed and
new trials ordered. This decision was
appealed to the Supreme Court of
Canada.

The S.C.C. Ruling in Belnavis
The Supreme Court of Canada
looked at three issues. First, did
Belnavis or Lawrence have a reasonable expectation of privacy with respect to the vehicle? Second, was the
search reasonable? Third, if the search
was contrary to the Charter should the
evidence be excluded under s. 24(2)
of the Chartet?
With respect to privacy, the Court
stated that a reasonable expectation
of privacy in a vehicle will depend on
"the totality of the circumstances."
Belnavis was found to have had a reasonable expectation of privacy as she
had possession and control of the vehicle and the owner had consented to
her use of the car. Lawrence was found
to have no connection to the vehicle
beyond being a passenger in it. There
was no evidence that she had any control or special privilege in relation to the
vehicle. Thus, the Court found that she
did not have a reasonable expectation
of privacy in regard to the vehicle.
Therefore, s. 8 of the Charter did not
apply and Lawrence's appeal was dismissed.
Since Belnavis was found to have
had a reasonable expectation of privacy, and the search of the vehicle was
done without a warrant, the Court found
that there hadbeen a breach of hers.
8 Charter rights (i.e. a warrantless
search is deemed unreasonable).
However, in considering s. 24(2) the
Court found that the officer did have reasonable and probable grounds to
search the vehicle. The officer was
found to have properly stopped the vehicle for speeding and could reasonably search it for registration docu-

ments when the driver could not produce any ownership information. The
clothing was also in plain view when
he opened the door to speak to Lawrence. The new clothing in the garbage bags, along with the conflicting
stories of the Belnavis and Lawrence,
gave the officer his reasonable and
probable grounds to believe that the
clothing was stolen. The Court found
that a reasonable person would conclude that there may be more goods
in the trunk and quoted the officer's
cross-examination from trial that "[Lawrence] was crowded by the three garbage bags and that any more stolen
property would of course be in the trunk
and it seemed logical in police workto
check the trunk" [emphasis original). 6
With respect to the admissibility of
the evidence, the Court also referred
to the Stillman7 test in that the evidence
was not "conscriptive". The Court noted
that "Evidence will be conscriptive
when the accused, in violation of his
Charterrights, is compelled to incriminate himself [or herself] at the behest
of the state by means of a statement,
the use of the body or the production
of bodily samples."8 On this basis, it
was held that the admission of the evidence located in the vehicle would not
render the trial unfair.
Further, in considering the seriousness of the breach in relation to
Belnavis, the Court found that the vehicle was not stopped and searched
arbitrarily, the breach itself was isolated
and brief, it was in no way deliberate,
wilful or flagrant, and the officer did
objectively have, and subjectively believed he had, reasonable and probable
grounds to conduct the search. The
violation of Belnavis' Charter right was,
therefore, little more than a technical
one. In this case it was found that the
administration of justice would not be
brought into disrepute by the admission of the evidence. The appeal was
dismissed and the order of the Court
of Appeal directing a new trial was confirmed.

Discussion
Police officers working on the street
should follow the Belnavis case with

caution. It does not give blanket authorization to the police to search any
vehicle that is stopped. The Belnavis
decision is very much confined to the
facts of the case. The starting point
that must always be kept in mind is
that warrantless searches are considered to be prima facie unreasonable
under s. 8 of the Charter. 9 The courts
have decided that where it is feasible
to obtain prior judicial authorization to
conduct a search, that authorization
is a precondition for a valid search and
seizure under s. 8.
There are a number of cases involving warrantless vehicles search where
evidence has been excluded. One example is found in the British Columbia
case of R. v. Klimchuck. 10 Theaccused
was detained after he was seen by an
Esso employee acting suspiciously
around a gas station in the early morning hours. An R.C.M.P. officer found
Klimchuck in a car a short distance
up the road from the station. A C.P.l.C.
query revealed that Klimchuck was
suspected of having previously broken
into vending machines using stolen
keys. Klimchuk's vehicle was
searched and a set of keys was found
hidden behind a loose dashboard
panel. Attrial, the officer who detained
Klimchuck stated that he did not have
enough evidence to support a charge
before the search was conducted. In
this case the Crown was trying to convince the Court of Appeal to adopt the
United States "automobile exception"
for searches with a warrant (i.e. a warrant is not required to comply with the
Fourth Amendment regarding a valid
search and seizure). In the United
States the courts recognized that requiring a warrant was not practical with
respect to vehicle, vessel or aircraft
searches because of their mobility. The
Court of Appeal in Klimchuk refused
to follow the U.S. exception regarding
vehicle searches, asserting that it
would give too much power to the police in relation to search and seizure.
The Court found that the accused was
arbitrarly detained and the keys were
excluded from evidence. According to
the Court, the only time a warrantless
search of a vehicle could be conducted
was if it was done under some statu-

3

tory provision where the law authorizing the search was also found to be
reasonable.
In R. v. Poirier, 11 the accused was
lawfully stopped by police for an offence under the provincial highway enforcement legislation. The accused's
trunk was searched and illegal cigarettes were found. At trial the officer
did not establish in his evidence the
requisite reasonable and probable
grounds for believing that evidence
would be found in the trunk. In this
instance, the Court found that there
was no cpmmon law or statutory provision that would authorize a search
of the trunk. Since the car was
stopped for a motor vehicle offence,
the officer could only search the car
for items related to the car and driver
(e.g. registration papers, drivers licence), unless there were further reasonable grounds for a broader search.
In R. v. Jones, 12 a vehicle was
stopped by police because it was suspected that the driver was impaired.
When the officer approached the vehicle he could smell cannabis coming
through the driver's open window. The
driver was detained for sobriety tests.
His passenger was found in possession of marijuana. The driver was given
a 24 hour drivers licence suspension
and his vehicle was to be towed. The
tow truck driver opened the trunk in
order to access the shock absorbers.
After closing the trunk, the officer
asked him to reopen it. A substantial
number of baggies of marijuana were
found inside. The evidence was excluded under s. 24(2) of the Charter.
The judge found that in order for a warrantless search to be deemed lawful
there must be a ''factual nexus" between the reason for the arrest or detention and the place searched. The
Court decided that there was no connection between the drugs found on
the passenger and the drugs found in
the trunk. There were no reasonable
grounds to believe that there would be
drugs found in the trunk, simply because the passenger was in possession of drugs. The search was
deemed unreasonable and the evidence was excluded.
There have been cases that have

4

upheld a warrantless vehicle search.
For example, R. v. Stephens13 involved
the robbery of a gas station at about 4
o'clock in the morning. The suspects
were seen getting into a vehicle and
driving away. A police officer set up a
roadblock a short distance down the
road from the robbery. Two suspects
were subsequently stopped by the police (at gun point) and advised of the
reason for the stop. When the officer
asked to search the trunk, the suspects
claimed not to have the key. The officer later found the key in the trunk
lock. The officer opened the trunk and
found a handgun and some cigarettes.
Although the car was towed and a warrant was obtained later to further search
the vehicle, the issue was whether the
original search was lawful. The detention of the accused and the search of
the vehicle were found to be justifiable
based on common law. The Court found
that the search was "reasonably necessary in order for the Sergeant to discharge his duty," it was unobtrusive and
a reasonable interference with the freedom of the suspect. The evidence obtained was found to be admissible. 14
In another armed robbery case, R.
v. Catroppa, 15 :a suspect vehicle was
stopped shortly after a robbery, near
the scene. Since a gun was allegedly
used, the officer relied on s. 101 (1) of
the Criminal Code to justify a warrantless search of the vehicle. This section allows for a warrantless search of
a vehicle where a police officer believes
on reasonable grounds that an offence
is being, or has been, committed
against the provisions of the Criminal
Code in relation to firearms. Again,
given the circumstances of this vehicle
stop and the statutory authority to
search, the search was found to be
reasonable and the evidence was admitted.
Finally, in R. v. Smellie, 16 the British Columbia Court of Appeal examined the issue of vehicle searches incidental to a lawful arrest. This particular case involved the stop of a vehicle
and the subsequent arrest of the driver,
a known drug dealer. Reliable source
information along with certain observations by the arresting officers (of drug
transactions) gave the officers the rea-

sonable and probable grounds necessary to take action. The vehicle was
searched incidental to the lawful arrest of Smellie, and the search was
conducted in a reasonable manner
(e.g. no unnecessary damage was
done to the vehicle). The drugs were
found in the vehicle when the officers
removed a loose door panel while conducting the search. The Court concluded that "in searching a vehicle as
an incident of arrest the police are
entitled to at least search the interior
of a vehicle as well as the trunk." 17
Further, the Court found that ''the
search of the interior of Mr. Smellie's
automobile for the purpose of obtaining evidence which went no further than
an examination of the area beneath
the loose panel of the passenger door
was reasonable in the circumstances."18 As a result, the accused's
rights under the Charter were not
breached. The Court dismissed the
appeal and upheld the conviction
(application for leave to appeal to the
Supreme Court of Canada was dismissed without reasons).

Conclusion
There are general principles that
the courts follow when determining
whether a vehicle search is lawful. In
particular, courts will examine whether
the person had a reasonable expectation of privacy (Edwards), whether
the search was lawful pursuant to common law, statutory or judicial authority (Southam) and the reasonableness
of the search (Collins). If a search is
found to be in violation of s. 8 of the
Charter the courts will examine several factors under s.24(2) of the Charterto determine whether the evidence
located during a search will be admitted into evidence. As a general rule,
conscripted evidence, regardless of
whether it is real or testimonial, will
result in an unfair trial and will be excluded (Stillman). Each case will be
decided on the facts known to the officer at the time of the search. Although the Belnavis case may appear

(continued on page 5)

Warrantless Vehicle Searches
continued from page 4

it is feasible to get a warrant, the best
course is to obtain one, unless there
are exigent circumstances.

to give the green light to warrantless
searches of vehicles, it must be followed with caution. While the Court
did admit the evidence in Belnavis,
there was a clear violation of s. 8 of
the Charter. Officers conducting vehicle searches without a warrant must
have the authority either by common
law or statute to search, and be able
to articulate their reasonable grounds
and authority during testimony. Where

Endnotes
1

(1997), 118 C.C.C. (3d) 405 (S.C.C.).
v. Edwards (1996), 104 C.C.C. (3d) 136
(S.C.C.).
3 · (1987), 33 C.C.C. (3d) 1 (S.C.C.).
4
· Hunter v. Southam (1984), 14 C.C.C. (3d)
97 (S.C.C.).
5
· (1996), 29 O.R. (3d) 321.
6· Supra, note 1 at para. 32.
7
· R. v. Stillman (1997), 113 C.C.C. (3d) 321
(S.C.C.); see also, the Operational Notes below where this case is discussed in more
2

·

· R.

detail.
8
· Supra, note 1 at para. 36.
9· Supra, note 4.
10· (1991), 67 C.C.C. (3d) 385 (B.C.C.A.).
11
· (1997), 116 C.C.C. (3d) 551(Quebec Court of
Appeal).
12
[1996] B.C.J. No. 1815 (Q.L.) Chilliwack Registry No. 31828 (B.C.S.C.) January 8, 1996.
13
· [1993] B.C.J. No. 3017 (Q.L.) New Westminster Registry No. X033070 (B.C.S.C.) July 7,
1993.
14
· Ibid., para. 29.
15
· [1992] B.C.J. No. 469 (Q.L.) New Westminster Registry No. X030083 (B.C.S.C.) May 21,
1992.
16
(1994), 95 C.C.C. (3d) 9 (B.C.C.A.).
17
· Ibid., at para. 42.
18
· Ibid., at para. 47.

THE FEENEY WARRANT
Canada's Legislative Response to R. v. Feeney
Cpl. Sheila Sullivan, B.A., LLB. (Police Academy)

History of the Legislation
On May 22, 1997, the Supreme
Court of Canada ("SCC") handed down
its ruling in the British Columbia murder
case of R. v. Feeney. 1 The details of
the case and the main thrust of the
ruling were discussed in a previous
edition of Issues of lnterest. 2 Because
of the implications of the Feeney
decision, an application to delay the
implementation of the decision was
granted by the S.C.C. The federal
government has now passed legislation
to amend the Criminal Code to respond
to the Feeney case effective December
18, 1997 (the "Amendments"). This
article will briefly review the contents
of the Amendments. Under the
Amendments there will be two possible
processes for obtaining authorization
to enter a dwelling house to make an
arrest.

house (new s. 529). This could occur
if at the time the arrest warrant is to
be issued, there are reasonable
grounds to believe the person named
in the arrest warrant is within a
specified dwelling house. If that is
so, then the justice issuing the arrest
warrant may include in the warrant an
authorization to enter the dwelling
house (Form 7 has been amended to
take this into account). The officers
executing the arrest warrant would be
under the additional constraint that
they may not enter that dwelling
house unless at the time of execution
of the warrant, they have reasonable
grounds to believe that the person
named in the arrest warrant is in the
house.

specified dwelling house for the purpose
of arresting a party (named or not) if the
justice is satisfied that there are
reasonable grounds to believe that:

Warrant to Enter

Exigent Circumstances

Arrest Warrant with Entry

The second process under the
Amendments is to obtain a warrant
of entry under new s. 529.1. Under
this section, a justice may issue a
warrant of entry (new Form 7.1)
authorizing the police to enter a

The Amendments also provide for a
warrantless entry into a dwelling house
to arrest a person where exigent
circumstances exist. There is a

The first process provided under the
Amendments will be where the arrest
warrant itself will contain an
authorization to enter the dwelling

(1)

the person is or will be present in
the dwelling house at the time of
execution of the warrant, and

(2)

either:
(a) a warrant of arrest is in force,
or
{b) grounds exist to arrest the
person under s. 495(1 )(a) or
(b), or any other federal
statute.

(continued on page 6)

5

The Feeney Warrant continued from
pages

statutory definition of what constitutes
exigent circumstances, including
reasonable grounds to believe that entry
is necessary to:
(1)
(2)

protect any person from serious
harm or death, or
prevent the imminent loss or
destruction of evidence.

ARTICULABLE CAUSE:
POLICE COMMON LAW AUTHORITY
TO DETAIN A SUSPECT ABSENT
REASONABLE GROUNDS FOR ARREST
Detective Steven Ing, LL.B. (Victoria Police Department)

The common law regarding hot
pursuit into a residence still operates
as another example of what would
constitute exigent circumstances.

(Editor's Note: The following is a
brief synopsis of an article by Steven
Ing from the last issue in which his
name was unfortunately omitted by the
printer).

Proper Announcement

Synopsis

Proper announcement by a police
officer of presence, authority and
purpose prior to entry will continue to
be required, unless there are
reasonable grounds to believe that
announcing entry will expose someone
to imminent bodily harm or death
(including the peace officers), or would
result in the imminent loss or
destruction of evidence.

It is well-settled law that police powers are limited to those provided by
statute or common law. The courts
have also consistently recognized that
a police officer's duty at common law
includes the duties to prevent and investigate crime. Most officers will be
familiar with the cases dealing with the
random detention of motorists during
"road blocks" or "checks stops" designed to detect impaired drivers. 1
These cases have held that detention
of a motorist in those situations, although arbitrary, is justified as an ancillary police power (at common law)
and is a reasonable limit on the right
not to be arbitrarily detained under s.
9 of the Charter. However, these cases
were decided within the context of police roadblocks, which are clearly intended to protect those who use the
public roadways from the danger of
impaired drivers.
Another type of detention (where
an arrest is not made) arising out of
the impaired driving cases is detention
pursuant to a breath demand. However, this type of "detention" only arises
out of a situation where there are reasonable grounds to believe an impaired
driving offence has been committed,
as a peace officer must have reasonable grounds to make the breath demand in accordance with section
254(3) of the Criminal Code.
What is not clear from any of the
"roadblock" cases is when any type of

Telewarrant
A telewarrant will be an option for a
warrant to enter, and the provisions of
s. 487.1 apply (i.e. the same procedure
must be followed as for all other
telewarrants).

Conclusion
This brief review covers only the
highlights of the new Amendments. A
Training Bulletin is available from the
Legal Studies Section of the JIBC
Police Academy. Please contact the
Legal Studies Section of the JIBC
Police Academy ((604) 528 - 5763 or
(604) 528 - 5762) for more information.

Endnotes:
1· [1997] S.C.J. No. 49 (Q.L.) File No. 24752
(22 May 1997).
2· (July, 1997) 48:3 Issues of Interest 1-6.

6

detention outside of an impaired driving scenario will be seen as authorized within a police officer's common
law duties, and specifically, in a situation where reasonable grounds do not
exist. Although it is clear that there is
no statutory power at this time authorizing the detention of a suspect absent reasonable grounds to believe an
offence has occurred, the decision of
the Ontario Court of Appeal in R. v.
Simpsor'f is particularly interesting with
regard to the potential for "investigative detention". The case of R. v. Lal, 3
from the British Columbia Supreme
Court, has also upheld a detention and
search without a warrant based on
"articulable cause." It is recommended
that police officers and departments
explore the developing articulable
cause doctrine based on advice from
their respective legal counsel.

Endnotes
1 See, R. v. Ladouceur(1990), 56 C.C.C. (3d)
22 (S.C.C.); R. v. Hufsky (1988), 40 C.C.C.
(3d) 398 (S.C.C.); R. v. Therens (1985), 18
C.C.C. (3d) 481 (S.C.C.).
2
· (1993), 79 C.C.C. (3d) 482 (0.C.A.).
3 · (Dec., 1996) Van Reg. (B.C.S.C.).

The Staff of the JIBC,
Police Academy wish you a very

HAPPY

IOPERATIONAL NOTES I
R. v.. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.)
Cst. Robert Kroeker, B.A. LLB (Saanich P.D.)

Common law power to search
incidental to arrest does not extend to
search of individual for biological
samples - taking of such samples
constituting unreasonable search and
seizure and violating accused's right
to security of person - While in custody
accused blew nose and threw tissue
away - police recovered tissue from
waste basket and sent for DNA
analysis - accused having refused to
consent to provide samples - search
of waste basket and seizure of tissue
unreasonable - Any evidence, real or
testimonial, that could not be
discovered but for conscription of
accused not admissible at trial.
The accused, 17 year old William
Stillman, was arrested in 1991 and
charged with the murder of 14 year old
Pamela Bischoff. The two had been
partying outdoors with a number of
teens near Oromocto, New Brunswick.
Bischoff was last seen leaving with
Stillman. Her body was found six days
later in the Oromocto River next to a
bridge near where she had last been
seen. Bischoff died as a result of blows
to her head. Semen was found in her
vagina and a human bite mark had
been left on her abdomen.
Seven days after Bischoff had last
been seen alive, Stillman was arrested
by police for the murder. He was taken
to police headquarters and
subsequently met his lawyer while in
police custody. Stillman had been
asked by police to provide hair samples
for DNA analysis, teeth impressions
and a statement. At the time there
were no Criminal Code provisions
allowing for the search of a person and
the seizure of biological samples.
Stillman's lawyer advised police that
Stillman refused to consent to the
taking of any samples or impressions
and that he would not be providing a
statement to police.
Despite
Stillman's lack of consent, and under

threat of force, the police took samples
from Stillman. Police collected scalp
hair samples by passing a gloved hand
through his hair as well as by plucking
hairs. Stillman was made to pluck
some of his own pubic hair. Plasticine
impressions of his teeth were taken
as well as buccal swabs and a sample
of saliva.
Then the police interviewed Stillman
for an hour. He did not make a
statement, but sobbed throughout the
interview. He asked to use the
washroom and when he did so he blew
his nose and threw the tissue into the
garbage. The police recovered the
tissue.
At trial, the case against Stillman
relied heavily on the DNA and dental
evidence. The trial judge found that
the hair samples, teeth samples and
buccal swabs were collected in a
manner that violated Stillman's Charter
rights, but despite the breach the
evidence should be admitted. He found
that the bodily samples were real
evidence and existed independent of
the Charter violation. Further, the
police had the right to seize the
samples as incident to arrest. The trial
judge found that the recovery of the
tissue was not a search and, thus,
there was no violation of Stillman's
rights in that regard.
Stillman was convicted of first
degree murder. He appealed. The
Court of Appeal of New Brunswick
upheld the conviction. On appeal to
the Supreme Court of Canada the
conviction was overturned and a new
trial ordered.
The majority (Lamer, C.J., La
Forest, Sopinka, Cory and Iacobucci
JJ.), found thatthe common law power
to search incident to arrest did not
permit the search for and seizure of
biological samples. The seizure of the
hair samples, teeth impressions, saliva
and buccal swabs violated the
accused's section 7 Charter right to

security of the person and constituted
an unreasonable search and seizure
contrary to section 8 of the Charter.
The majority ruled that the admission
of the evidence would render the trial
unfair and that it had to be excluded.
The majority went on to find that
the seizure of the discarded tissue in
the police station also infringed section
8. Where a person is not in custody,
the police can normally collect and test
a discarded item. Where a person
discards an item it has been abandoned
and that person no longer has an
expectation of privacy in relation to the
item. However, the situation is different
where a person is in custody. When
in custody, whether or not a person
has abandoned a discarded item will
depend upon the circumstances of the
case. Here, the accused had refused
to provide biological samples and the
police were aware of that decision. The
police could not seize the tissue
without the consent of the accused.
However, the tissue was admissible as
evidence and the Charterbreach was
not a serious one and the police could
and would have obtained a warrant to
seize the tissue in any event.
In the course of this decision the
majority entrenched a rule that
unlawfully conscripted evidence (i.e.
evidence that the accused is enlisted
to participate in the discovery or
collection of ) both testimonial (e.g.
statements) and real (e.g. biological
samples), which affects the fairness
of the trial, must always be excluded
under section 24(2) of the Charter. The
only exception is where the Crown
establishes, on a balance of
probabilities, that the impugned
evidence would have been discovered
by the police by an alternative nonco n scri ptive means or that its
discovery was inevitable.
This is an unprecedented extension
of the right against self-incrimination.
No other common law jurisdiction has

7

extended the principle against selfincrimination to physical (or "real")
evidence, except physical evidence
that would not have been discovered
but for the involuntary statement of the
accused (commonly referred to in the
U.S. as the fruit of the poisonous tree
doctrine) . The rule remains firmly
confined to testimonial evidence in
Britain, Australia and the United States.
However, here the majority has stated
clearly that any evidence, be it
testimonial or real, that would not have
been discovered but for the unlawful
participation of the accused in the
discovery of that evidence, will affect
the fairness of the trial and must be
excluded.

R. v. Laurin (1997), 113 C.C.C. (3d)
519 (Ont. C.A.)
The police received an anonymous
tip that the accused was growing
marihuana in his apartment. Police
officers went to the apartment complex.
The accused's unit was on the ground
level. The police went into the side
yard of the apartment complex to look
closely at the accused's window. One
officer came within two inches of the
window. Once there they observed that
the window was covered from the
inside, there was a bright light within
the apartment and condensation on the
window. The police officers then went
into the public hallway of the apartment
building and stood near the accused's
door. There they noted the smell of
marihuana. A search warrant was
obtained and the accused's apartment
was searched pursuant to the warrant.
The police seized a marihuana plant,
some cannabis resin and some growing
equipment. The accused was charged
with cultivation of marihuana and
possession.
The trial judge found that the police
had not breached the accused's right
under section 8 of the Charter to be
free from unreasonable search and
seizure, and admitted the evidence.
On appeal, the Court found that
while the accused had no right to
exclude anyone from the side yard, nor
did the police officers have any right to
be there. The fact that the police came

8

within two inches of the window and
visually inspected the inside of the
window infringed on the accused's
reasonable expectation of privacy. The
search of the window was
unreasonable and that information was
deleted from the Information to Obtain.
Although this information was excised
from the Information to Obtain sufficient
facts remained to support the granting
of the warrant. Despite the Charter
violation and being excised from the
Information to Obtain, the police
observations of the window were
admitted into evidence under section
24(2) of the Charter. The Court
concluded "that exclusion of the
evidence would have a greater negative
effect on the reputation of the
administration of justice than would
its admission".
The Court of Appeal went onto find
that the smelling of marihuana by the
police in the public hallway outside of
the accused's door was not a search.
The police were entitled to be there
and did not depend on the invitation of
the accused. The accused had no
reasonable expectation of privacy with
respect to smells emanating from his
apartment into the hallway.

Statutory Provisions
Bill C-17, the Criminal Law
Improvement Act, S.C. 1997, came
into force June 16, 1997 bringing with
it the following important changes to
the Criminal Code.
1. The list of offences for which wiretap
authorizations may be obtained has
been expanded (see section Part
VI, s. 83, Criminal Code).
2. Section 487 has been amended to
allow for the search of computer
data bases and files. Further, s.
487(2.1) authorizes the use of
printing and copying equipment
present to facilitate such search
and seizures.
3. Telewarrant provisions have been
extended to General warrants (s.
487 .01 (7)), and to DNA warrants (s.
487.05(3)).
4. A new "Body Impression Warranf'

has been created granting police
authority to obtain "any handprint,
fingerprint, footprint, foot
impression, teeth impressions or
other print or impression of the body
or any part of the body" (see
generally, s. 487.091).
5. The common law power to search
without a warrant in "exigent
circumstances" has been codified.
Section 487 .11 now authorizes a
peace officer to search for and seize
anything, without a warrant, that he
could obtain a warrant for under ss.
487(1) or 492.1 (1) but, due to
exigent circumstances, it would be
impracticable to obtain a warrant.
6. The common law "plain view''
doctrine has been codified. Section
489(2) now permits a peace officer
who is lawfully in a place pursuant
to the execution of a warrant or
otherwise in the execution of duties
to seize anything that the officer
believes on reasonable grounds
was obtained through the
commission of an offence, used in
the commission of an offence, or
is evidence of the commission of
an offence. Offence, in relation to
this statutory power, relates only
to federal offences.
There have been several other
amendements to the Criminal Code
not covered here. A Training Bulletin
is available from the Police Academy
regarding some of these other
amendments.

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