m11u1~ Of mNT(lil?llT

YOLUMI NO® I '

. c.

Justice Institute of British C.olumbia

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V&R 4J5

ISSUES OF INTEREST
VOLUME NO. 26
Written by John M. Post
December 1986
TABLE OF CONTENTS

Page
Learning Location of Contraband by Threat Admissibility
of Evidence and Statements . .. . . . . . . . ... . . ... . . . . .. . . . . . . . . . . . . . . . . . .
Regina v. Sowers, B.C. Court of Appeal November CA 004270, October 1986
Rit and Run Provisions in B.C. Motor Vehicle Act
Vagueness of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
R~gina v. Rowley, B.C . Court of Appeal
Vancouver Registry CA 005213, September 1986
Search Upon Suspicion - Reasonableness Exclusionary Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. Glowa , B.C. Court of Appeal Vancouver Registry CA 004425, March 1986
How Much of a Drug or Narcotic must a Person Possess
Before He Collllllit an Offence?............................. . ....... . ..
Regina v. Brett . B. C. Court of Appeal
CA 004498 - Vancouver Registry

Is Climbing a Pence which totally encloses a Yard
Breaking and Entering? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. Fajtl, B.C. Court of Appeal CA 004874 Vancouver Registry, September 1986
Theft and Mischief to Prevent the Crime of Abortion
Regina v. Demers, B.C. Court of Appeal CA 04852 - Vancouver Registry, September 1986

1

2

5

7

9

11

- ii -

Page
Consent to Assault - Can a Person License Another to
Commit a Crime of which He will be the Victim? . ............. . ... ...
Regina v. GUR . 27 C.C.C. (3d) 511
Nova Scotia Supreme Court - Appeal Division

13

Non-disclosure of Confidential Information Claimed
To be Needed by the Defence for a fair Trial Public Interest and Private Interest ........ . .... . .. .. ... . ........
Regina v. Kevork . Balian and Gharakhanian - 27 C.C.C. (3d) 523
Ontario High Court of Justice

15

Warrantless Video Monitoring of a Public Washroom
To Gather Evidence of Gross Indecency - Unreasonable
Search and Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. Lofthouse, 27 C.C.C. (3uj 553
District Court of Ontario

18

Search Warrant Issued for Period of Eight Days to
Aqcommodate Search and the Arrest of a Wanted Person
Regina v. Coull and Dawe, B.C. Court of Appeal Victoria V000285, December 1986

22

Assault - Consent - Self Defence - Intent
Regina v. QUIDING. County Court of Westminster.
No. XO 15790, May 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dangerous Driving and Impaired Driving Charges
Arising from One Act of Driving ...................... .. . .. .........
STALINSKI and The Queen, The County Court of Kootenay,
Nelson Registry CC180/1985, May 1986
Propriety of Multiple Convictions Arising from one Delict Overlapping Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Queen v. Prince, Supreme Court of Canada November 1986
Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Queen and COUPAL, B.C. Court of Appeal,
Vancouver Registry CA 003627, November 1986

24

26

27

31

- iii -

Page
Police, During Search of a House, Answer the Telei;;hone
and Impersonate the Occupant. Does this Amount to
Interception of a Private Communication? ......... . . . .......... . ... .
Regina v. CHARTRAND, County Court of Vancouver,
Vancouver Registry No. C84 1915, November 1986
Counselling to Commit Murder - Contract Killing
Regina v. NEWSOM. County Court of Vancouver,
No. CC86 0939, November 1986

34

I

37

Conviction on an Unexlained Single Fingerprint .............. . .

39

Is "Speeding" in British Columbia a "strict" or "absolute"
liability offence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

Failing to Pull Over for Police and Careless Driving Dual Offences Arising from One Incident ........................

40

Discriminatory Sex Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41

Seized Property - The O?mer - The Charter ................. . ...

41

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LEGAL TID-BITS

Learning Location of Contraband by Threat
Adaissibility of Evidence and Stateaents
Regina v. Sowers, B.C. Court of Appeal November CA 004270, October 1986

The accused was suspected of having robbed a bank-teller. Several months
after the robbery the police had reasonable and probable grounds to obtain a
warrant for the accused's apartment to search specifically for two handguns.
The accused was friendly and cooperative and at first denied any knowledge
of the guns. The officers assured him they would find the weapons but gave
the accused an opportunity to te 11 them where they were.
If not, they
reminded him, they would have "to tear the place apart" and that could cost
the accused his damage deposit. Following this, the accused said: "One gun
is in a suitcase and the other is in the bedroom".
Following this, the· officers ~iscussed the robbery with the accused:
"A witness saw you come in the building and recognized you from
the bank robbery" was the untrue statement by one of the officers.
"You might as well get it over with and "fess up" was the followup suggestion. That the accused did by saying: "I guess I am the
guy that did it".
He also told how he used the guns from the
crime to pay off some debts. About ten hours later the accused
was asked to and did write out a complete confession.
During his trial for armed robbery no Charter arguments were raised as
everything in terms of reasonableness and other rights of the accused had
not been infringed.
However, defence counsel argued that the statement
t~lling police the location of the guns was hardly voluntary.
"Tell us or
we 'tear your place apart" was in essence the threat that preceded the
statement. The confession in regards to the robbery was obtained by clear
deception and trickery. These, submitted the defence, are hardly facts that
can support a finding of voluntariness on the part of the accused. However,
the statements were admitted in evidence and the accused appealed the
conviction that followed.
The B.C. Court of Appeal could not substitute their opinions that lead to
the finding of fact by the trial Judge in regard to the voluntariness of the
statement. However, the Court of Appeal levied considerable criticism at
the officers.
The language used ("tearing the place. apart") was
inappropriate and would, i f becoming a practice, constitute an adverse
reflection on the administration of Justice. Said one Justice: "Had I been
the trial Judge in this case I would have held a different view about the
admissibility of this evidence than the trial Judge did".
The B.C. Court of Appeal said it was reluctant in dismissing the accused's
appeal as they did "deplore the conduct of the police in this case and the
trickery used by them . .... . ".
Accused's appeal dismissed
Conv~ction upheld

- 2 -

Hit and Run Provisions in B.C. Motor Vehicle Act
Vagueness of Law
Regina v. Rowley, B.C. Court of Appeal
Vancouver Registry CA 005213, September 1986
The Crown proved that the accused drove a taxi and collided with the cyclist
who fell on the back of the cab and then onto the road.
The taxi never
stopped and due to the cyclist taking the licence number the accused was
found and identified as the driver.
He was consequently convicted of
"failing to remain at the scene of an incident". (s.62 (1) m.v.a.)
The accused successfully appealed the conviction to the County Court
submitting that s.62 m.v.a. is unconstitutional in that it contravenes s.7
of the Charter of Rights and Freedoms. A principle of fundamental justice
is that it has to be cl~ar _and specific and where it creates an offence, it
must leave no doubts what behaviour it prohibits. To say that a person must
remain on the scene of an incident in which he is involved on a highway is
simply too vague and not a "reasonable limit" to the right provided for in
s. 7 of the Charter.
The Crown appealed the County Court ' s reversal of the accused's conviction
to the B.C. Court of Appeal.
In 1980 (pre Charter days) similar language in the then "hit and run"
section of* the Motor Vehicle Act was also challenged before the B.C. Court
of Appeal.
"Vagueness" was al so then the argument and it was submitted that
consequently the section created "no offence known to law". After all, what
is an incident? It could be an angry verbal exchange with another motorist.
In 1980, the Court of Appeal totally rejected the defence arguments and said
that if common sense prevails the section is clear. It speaks of returning
to the scene, exchange documents in respect to civil liability and rendering
assistance to injured persons.
What else does this describe - but a
collision; a simple accident. In this case, however, the Court had to apply
the Charter provisions to the legislation to test it for constitutional
clarity; "to consider the vagueness of the word 'incident' in its broadest
literal meaning and not in the meaning already determined" (in the 1980
Soltys case).
The Court adopted a U.S. "test of vagueness" which states
that a law is vague when "it fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by statute".
The following sentences express the sentiments of the B.C. Court of Appeal
in response to the defence arguments that the section was riddled with
vagueness:

*

R. v. Soltys, 8 M.V.R . .59

- 3 -

The following sentences express the sentiments of the B.C . Court of Appeal
in response to the defence arguments that the section was riddled with
vagueness:
"To the contrary, any reasonable person driving a motor vehicle
would or should know that where an accident has occurred on a
highway in which his car is directly or indirectly involved he
must remain or return to the scene of that accident" ......... .
" .... the impugned section neither fails to give fair notice nor
encourages arbitrary and erratic exercise of police powers" ....
The B.C. Court of Appeal agreed with a U.S. dictum that . ... "One to whose
conduct a statute clearly applies may not successfully challenge it for
vagueness....
Although the Gourt · did not spell this out, it did subtly
suggest that a person who knocks down a cyclist and has the victim roll over
his vehicle and then claims the law that tells him to remain at the scene of
an incident has such a vagueness about it that he was not sure it applied to
him in such circumstances, is absurd.
couent:
The above-mentioned principle that "one to whose conduct a statute clearly
applies may not successfully challenge it for vagueness" is not one created
in this case by the B. C. Court of Appeal.
It was adopted from U.S.
*
jurisprudence.
What this in essence means, is that vagueness of law a person is accused of
having offended, is only a valid constitutional issue if that law is vague
considering the events and circumstances in which the accused person was
involved. In other words, there is nothing vague about law where events and
circumstances would have conveyed to any reasonable person that it applied
to him in those circumstances. This means that there may be incidents of
"hit and run" of less flagrant and conspicuous circumstances in which s. 62
(1) M.V.A. is wanting for vagueness.
An accused person can challenge the valid! ty of law in respect to the
jurisdictional competence (vires) of the government that enacted it: or on
account of excessive "breadth" (overbreadth) in that it is too much of a
catch-all in regard to constitutionally protected conduct;
being
discriminatory; inconsistent with the Charter of Rights and Freedoms; etc.

*

Parker v. Levy, U. S . 733, 756 , 41 L. Ed. 2d. 439 [1974]

- 4 -

The Courts are, if the challenge is successful, empowered to declare such
law without force or effect. It seems that "vagueness" is no cause for such
a declaration but is a constitutional defence if the law is too vague to
clearly capture the accused ' s alleged culpable behaviour.

••••••

- 5 -

Search Upon Suspicion - Reasonableness - Exclusionary Rule

Regina v. Glowa, B.C. Court of Appeal Vancouver Registry CA 004425, March 1986
Police found a pi ck-up truck parked around midnight, in a district
frequented by prostitutes, many of whom were active drug abusers. Checking
the licence number they found the owner (the accused) was on parole for
armed robbery and upon checking the truck they found the accused behind the
wheel and his passenger to be a person who was awaiting trial for possession
of narcotics. The officers searched the truck and found a knife on the seat
next to the accused. The knife was one that opens automatically by pressing
a button attached to.the handle. Consequently, the accused was convicted of
possessing a prohibited.wea~on. (s. 88(1) C.C.)
The trial judge had found that the search of the truck was "unreasonable"
and had infringed the accused's right under s.8 of the Charter. Yet she had
allowed the knife as an exhibit in evidence. The accused argued that the
evidence should have been excluded under s. 24(2) of the Charter.
The reason why the trial Judge had found the search to be unreasonable was
that they had acted on a 'hunch', but no reasonable grounds for believing
-:r.~: drugs were kept in the vehicle.
Therefore, the search was unlawful,
she had reasoned. However, both the trial Judge and subsequently on appeal,
a County Court Judge found that admission of the knife in evidence would not
bring the administration of justice into disrepute. The accused then took
his plight to the B.C. Court of Appeal.
That Court reasoned that considering all of the circumstances, including the
area in which they were parked, the accused and his companion could not have
had any real expectation of privacy.
The off ice rs had not acted
capriciously, carelessly, or out of malice.
They acted reasonably.
The
Court concluded that admission of the evidence did not bring the
administration of justice into disrepute. It even had serious doubts if the
search and seizure had, in fact, though unlawful been unreasonable and hence
contrary to s.8 of the Charter.
Said one Justice:
" .... I cannot accept the ruling that the search and seizure
infringed the appellant's Charter right under s.8.
To acquit a
man known to be a long term parolee from a prison term imposed for
armed robbery for want of evidence of possession of a prohibited
weapon because the search and seizure was made in suspicious
circumstances on a general rather than a specific suspicion would.
to my mind, bring the administration of Justice into disrepute".

- 6 -

-

Admission of the evidence simply would not endanger the public's confidence
in the integrity of the judicial process.
Accused's appeal dismissed
Conviction for possession of a prohibited
weapon upheld

Considering the well known views of the B. C. Court of Appeal on the
exclusionary rule (in essence the application of s. 24(2) of the Charter)
this case was quite predictable in terms of content. However, hovering over
this C~urt' s reasoning i~ the Supreme Court of Canada decision in the
Therens case. -Defence _ counsel used that Court's language in submitting
that the search was unreasonable and that automatically a flagrant
infringement of the accused's right occurred. In other words, he submitted
there was a strict exclusionary rule or at least, that all infringements of
a right or freedom by means of which evidence was obtained, would shake the
public's confidence in the integrity of the judicial process if it allows
such evidence to be admitted .
There is a tremendous gap between the defence's interpretation of the
Therens decision and the application of s. 24(2) of the Charter ind that of
the B.C . Court of Appeal which has maintained its original views * on these
issues.

*

See Volume 21, page 1 of this publication

**

See Vo 1 ume 22, page 20,
Regina v Gladstone

Regina

v Rodenbush and Rodenbush,

and

- 7 -

How •uch of a Drug or Narcotic •ust a Person
Possess before he collJllit an Offence?
Regina v. Brett, B.C. Court of Appeal
CA 004498 - Vancouver Registry

Police found a cigarette filter on the accused which was later discovered to
contain Talwin. Needless to say, the officers did not know that the filter
(which was found in a pill vial) contained Talwin, but they suspected as
much and asked the accused who readily admitted it. He said he "cranked"
about an hour ago. The County Court Judge who heard the accused's appeal,
did set aside the conviction of "possession" and substituted an acquittal.
The Crown appealed that decision to the B.C. Court of Appeal.
.

. ..

In the early seventies there were judicial precedents that a person ought
not to stand convicted for the possession of traces of illicit narcotics or
drugs unless it could be shown it was the remnant of a larger quantity. In
respect to the quantity it was to be a "usable" one. Anything less, though
it is not the "equivalent of nothing", does not offend what parliament tries
to control. In England the Courts ruled similarly and the principle seemed,
in Canada, to become the accepted test to determine if there was sufficient
of the illicit substance to determine if either the Narcotics Control Act or
the Food and Drug Act had been offended.
However, in 1982 the British House of Lords had the following to say about
the test:
" .... . . I have concluded that the 'usa~ility' test is incorrect
law. The question is not 'usability ' but possession".
The B.C. Court of Appeal agreed with that statement and held that the County
Court Judge had erred in law when he ruled that the ·crown had to s().ow that
the accused possessed a usable quantity of Talwin. Furthermore, the Crown
had shown that the traces of Talwin were the remnants of a usable quantity.
The admissible statement by the accused proved that and all the essential
ingredients of possession such as control and knowledge.
The Court warned that:
" ...... the importance and determination factor in this case is the
respondent (the accused) admitted that he was in possession of a
prohibited drug. What the outcome would be if no such admission
had been made will have to be determined in a future case " .

- 8 -

In other words, the Court warned (though they did indicate their views on
the usable quantity test) that this case may not serve as a precedent.
Afterall, the Crown did show possession, control, and knowledge in relation
to an illicit substance, the remnant of a quantity sufficient to "crank" an
hour ago.
Crown appeal allowed
Note: There are quite a number of cases in respect to possession of traces
of drugs or narcotics which resulted in acquittals.
However, in most of
these cases, the issue of 'knowledge' caused the problems for the Crown, and
not the quantity.

••••••

- 9 -

Is Cliabing a Pence which totally encloses a Yard
Breaking and Entering?
Regina v. Fajtl, B.C. Court of Appeal CA 004874 Vancouver Registry, September 1986

Police had found the accused inside a scrap yard which was totally enclosed
by a 10 ft. high fence topped with barbed wire. There was also a building
within this enclosure. The accused had climbed the fence and allegedly had
sacks containing brass ready to be taken out. Consequently, the accused was
convicted of breaking and entering with intent to commit an indictable
offence.
He appealed the conviction arguing that the enclosure was not a
"structure" (s. 306(4) (b) C.C.) and that climbing the fence does not amount
to "breaking and entering" as entry was not gained through "a permanent or
temporary operiing"; (i. 308 (b) (ii) C.C.).
Surreptitious entries of locked up and completely enclosed commercial
"yards" have resulted in breaking and entering convictions before . In 1964,
the Supreme Court of Canada * dealing with the breaking and entering of a
mobile bunkhouse, discussed the meaning of "structure".
Said the Supreme
Court of Canada:
"In all cases we must be guided by what I may call the intentions
of the structure, and must enquire with what intention it was
made".
This has resulted in several provincial superior Courts finding that such
fenced enclosures are structures.
In relation to a fenced structure, the
Court held that i t must be substantial in size, built up from component
parts and intended to remain permanently on a permanent foundation. Even if
some parts are moveable, it will still be a "structure" The B.C. Court of
Appeal agreed with its Nova Scotia counterpart which was of the opinion that
an enclosed and permanently fenced commercial "yard" was included in the
. . t1on
.
Supreme Court of Canada's d e f in1
o f structure ** .
In that case, the
accused also gained access by climbing such a fence which the Court
concluded was gaining access through a permanent or temporary opening. The
B.C . Court of Appeal also agreed with that conclusion.
Accused Appeal dismissed
Conviction of Breaking and Entering upheld

*

Springman v. The Queen, [1964] 3 C.C.C. 105

**

R. v. Thiebault, [1982] 66 C.C.C. (2d) 422

- 10 -

Note: The accused had heavily relied on a case decided by the B.C. Court of
Appeal in 1966* where it quashed a conviction of Breaking and entering as a
garage "with one open end" (assumed to be some sort of car-port) was not a
"permanent or temporary opening" within the meaning of the criminal code.
The B. C. Court of Appeal did not say that the Sutherland decision had not
survived the subsequent Supreme Court of Canada's version of "structure" but
conceded that it had been "severely circumscribed" .

*

R. v. Sutherland, (1966] 58 WWR 441

- 11 -

Theft and Mischief to Prevent the Criae of Abortion Regina v. Demers, B.C. Court of Appeal, CA 04852 Vancouver Registry, September, 1986

The accused, a man who strongly believed that the abortion proceedings at
the local hospital were illegal, in that doctors performed the surgery
without a "valid" requisite certificate from the "medical therapeutic
committee", made his way into an operating theatre and stole an aspirator.
He took it home, damaged the equipment so it was inoperable, delivered it
back to the hospital and phoned the police. He was consequently convicted
by a jury of theft, possession of stolen property and mischief. The accused
appealed the convictions.
-

Firstly, the accused had not been allowed to lead evidence that the
certificates the doctors had when performing abortions were invalid as they
were not issued, upon the committee being satisfied that continuation of the
pregnancy would likely endanger the life or health of the mother.
Second! y, the accused argued (as what was taking place in the hospital
amounted to an offence under section 251 C.C.) he was by virtue of s.27 C.C.
authorized to use as much force as was reasonably necessary to prevent the
commission of an offence.
Both grounds for appeal were found to be without merit.
At the time the
accused removed the equipment there was no abortion being performed or about
to take place.
The defence the accused raised is dependent upon actions
nece.ssary to prevent immediate situations.
Therefore, i t would be
superf 1 uous to adduce evidence in respect to the validity of the
certificates as s.27 C.C. was not intended to apply in the circumstances as
they were when the accused committed the offences.
Couent:
What is somewhat surprising is that no issue was taken with the multiple
convictions for theft and possession of the goods stolen. Ever since the
offence of "receiving" property obtained by means of an indictable offence
was changed to "possession" of property so obtained, the latter seems an
included offence to theft because it is "an act of necessity". Considering
the definition of possession ins. 3(4) C.C., it seems impossible to commit
theft without possessing the stolen goods.
Possession of stolen goods
appears to be as included in theft as theft is in robbery. Section 589 C.C,
the section that provides for the divisability of indictments and thereby
creates the principle of included offenses, does not provide for an offence
to be included in another offence due to the former being an act of
necessity to commit the latter. This has been argued upon pleas of double
jeopardy (autrefois acquit autrefois convict, meaning:
"I have been

- 12 -

acquitted or convicted of this very charge or of one connected with it by
means of the concept of included off~nses, arising from the same incident").
There are many examples of this in case law. Even if one wanted to argue
that section 589 C.C. is exhaustive (no offence is included in another
offence other than provided by that section or other specific provision),
one would think that the principle established by the Supreme Court of
Canada* in 1974 would apply.
I t provides that a person must not be
convicted of more than one offence arising from one delict. This principle
deals with those offences not included but which overlap with one another.
At least, theft and possession seem to do that.

*

Kienapple v. The Queen, (1975] S.C.R. 729 The principle is discussed in Volume 22 in Regina v. Krug,
on page 2

- 13 -

Consent to Assault - Can a person License another to Coamit a Criae of which he will be the victia?

Regina v. GUR, 27 C.C.C. (3d) 511
Nova Scotia Supreme Court - Appeal Division
The accused was put on notice by his girlfriend that all relations between
He did not take this lightly and one night, after
them were terminated.
having been drinking, he went to the girl's home, and gained entry to her
bedroom and bed.
A Mr. Rafuse who lived in the basement of the house
arrived home in the early morning hours and noticed the accused's truck
parked in front. He went to his quarters but became increasingly concerned
about the safety of the girl. He was aware of the violent tendencies of the
accused and he decided to cqeck on the girl.
He first phoned police and
then went upstairs ·taking· a draw knife with him. He left the knife on the
main floor before going to the top floor where he made his inquiries from
the hallway. The answer he received from the girl did not allay his fears
for her and he made further verbal inquiries. This infuriated the accused
who came out of the bedroom, completely naked, brandishing a knife.
He
chased Mr. Rafuse down the stairs and then returned to the girl's bedroom
where he dressed himself while pledging that he was going to kill Rafuse.
The two men were stabbing at each other when police arrived. Both required
medical attention for minor wounds to arms and hands. As a result of this
encounter, the accused was convicted of "possession of a weapon for the
purpose of committing an offence" (s.85 Criminal Code).
The offence, of
course, was assault on Mr. Rafuse.
However, the accused contended that
there was no assault.
In appealing his conviction the accused maintained
that Mr. Rafuse participated willingly in a fight and, therefore, whatever
the accused did to him, was done with consent. The defence claimed that Mr.
Rafuse wanted to fight and in the circumstances, the burden of proof was on
the Crown to show that he did not consent.
The Appeal Division of the Nova Scotia Supreme Court held that consent
played no part in the Crown 1 s case at all.
Al though the definition of
assault in the Criminal Code does say that assault is a touching without the
consent of the person touched, assault with a weapon or of a kind where
there is a degree of violence that bodily harm is a probable consequence,
the crime is of such gravity that no person, including the victim, can
license anyone to commit that crime. The way that the accused aggressively
pursued Mr. Rafuse with a knife in retaliation for what he (the accused)
considered an intrusion, amounted to assault whether or not Mr. Rafuse
consented to the contest. Where a person may, in law, be able to consent to
a fair fight, he cannot consent to have bodily harm inflicted upon him.

Accused's Appeal Dismissed

- 14 -

Despite the abundance of text on this issue of consent it cannot be said
that the law is clearly established. The instructions to the jury by the
trial judge, in this case, was a prime example of this, as are decisions by
other Courts of Appeal. This synopsis does not include the details of these
different views.
It does, however, reflect what can be considered the
common denominators of the common law surrounding this issue. Particularly,
assaults committed in sports are very difficult in regards to consent, such
as implied consent when participating in a contest. Prize fighting cases
and debates about this so-called sport where the objective of the
participants is to render the brain (the most puzzling and miraculous organ,
which when dead, is at common law the equivalent to physical death) of his
opponent temporarily non-functional.
The question remains whether a prize
fighter in 'law •. is a.ble .:to .lioense ·(by consent) his opponent to inflict that
harm to him. At the risk of exposing my personal bias, I predict that due
to the incredible· economic gains to those who exploit young athletic men.
the issue of legality and moral propriety is not likely to be challenged.

* * * * *

- 15 -

Non-disclosure of Confidential Inforaation Claiaed
To be Needed by the Defence for a fair Trial Public Interest and Private Interest

Regina v. Kevork, Balian and Gharakhanian - 27 C.C.C.(3d) 523
Ontario High Court of Justice
The accused were charged with the attempted murder of a foreign diplomat and
conspiracy to murder that diplomat. During the preliminary hearing defense
counsel asked police investigators questions that would have revealed
information the Canadian Security and Intelligence Service considered
confidential and a representative of that service objected to the questions
to be answered.
The accused took their request for the information they
claimed to be essential to make a full answer and defence to the
allegations, to the- Federal Court.* As the information was to be used only
to discredit a Crown witness and not to counter any of the elements of the
alleged offenses: and as the information they applied to have disclosed was
possibly helpful in their defence; and as it was to be used not at a trial
but a preliminary hearing which could at worst result in a committal, the
State interest in national security did supersede the interest of the
accused ..
When the accused were tried for the alleged offenses the very same issue
arose and the accused reasoned that the Crown, their accuser, had
information essential for them to make a full defence and it refused to make
that information available. Having an opportunity to prepare a full defence
i_s included in the "principles of fundamental justice" which must be
observed in any process that may result in deprivation of liberty or
security of the person. (s.7 Charter of Rights and Freedoms). The accused,
therefore, petitioned the Ontario High Court of Justice, to order the Crown
to provide them with the information or order a judicial stay of proceedings
as a remedy to this infringement of their constitutional right.
Included in the reasons for objecting to supply the information was the
protection of 'operatives': revealing methods of operations; the identity of
targets and technical resources.
The C.S.I.S. did not consider the
information required of any significant value to the defence and thought the
defence posturing to be nothing more than a fishing expedition on the part
of the foreign poll ti cal group the accused belonged to.
The information
would be invaluable to their operations in Canada.

*

See the recently enacted 36.1 Canada Evidence Act re: Kevork and The Queen , 17 C.C.C. (3d) 426

- 16 -

The whole issue was that Crown witnesses' (police officers) testimony caused
the defence to infer (the Court considered it a reasonable inference) that
there had been electronic and physical surveillance. The testimony of coconspirators was damaging to the defence, but was riddled with
inconsistencies.
The defence claimed
that i f it had access to this
confidential information it could totally discredit those witnesses.
The
Crown would not concede to the defence inference or that C.S.I.S. would not
open any part of its books.
The Federal Court is now in charge of
determining disclosure of information concerning international relations,
national security or defence and determines any application for disclosure
strictly by considering the competing interests of the applicants and the
State.
It is pretty well accepted in law. that public interest in these
areas supersedes that of an individual. The Federal Court's involvement in
this case was not part of the criminal process and whether the accused
(applicants) could have a fair and impartial trial or had their rights
infringed was not for the Federal Court to consider.
That responsibility
befalls the trial Court· which is "a Court of competent jurisdiction" under
s. 24(1) of the ·Charter to remedy any infringement of a Charter right or
freedom.
The accused did apply for such a remedy and suggested a stay of
proceedings. The Crown simply could not have it both ways. The success in
the Federal Court procedures to suppress information came to hound it in the
criminal process.
The objectives of the two processes and the
responsibility of the respective judiciary were simply distinct from one
another, despite the fact that the same applicants and activities were
involved.
The Ontario High Court of Justice was unable to order disclosure of
information the Federal Court had ruled could not be disclosed. On the one
hand the Court could not allow an accused person to be sacrificed "at the
alt~r of national security",
and on the other hand the State is in no
position not to prosecute because it is in possession of some information it
will not, for good reason, divulge.
The question to be decided by a trial Court finding itself in the middle of
such a conflict of public interest vs. private interest, is whether or not a
fair trial (an accused's constitutional right) can be had.
That is a
decision the Federal Court did not have to make. It simply had to determine
if the information requested could, considering national security, be
released.
The defence suggested the application of "the stock choice rule".
That
means to hold that the State must desist from prosecution unless it is
prepared to make all information available to the defence.
Another
suggestion was to impose a conditional judicial stay of proceedings, the
condition being that the Crown gives the accused the information he needs
for his defence if it wants the trial to continue.
A third, was to order
the Crown to make the information available to the defence. If this was not
palatable to the Crown , it , of course, can order a stay of proceedings to be
entered on the record.

- 17 -

-

The Court disagreed with the suggestions and the ancillary submissions.
three are in essence the same in character and consequences .

All

The Court held that no stay of proceedings is justified as a constitutional
remedy under s. 24(1) of the Charter in circumstances as these unless the
evidence (information) is critical or essential to the defence. To avoid
"fishing expeditions" the Court held further that the burden is on the
accused to show that the evidence the information would reveal is critical
or essential.
Only when it is able to show that can a remedial stay of
proceedings be considered. This is consistent with the law in relation to
police informers. Only where the defence can show that the identity of the
informer enables it to demonstrate innocence, may a Court order that the
informer's name be revealed.
The defence in this -case had failed to show that the information it wanted
was either crucial or essential to the defence.

Application for a order to make the
confidential information available
to the accused .Q!: stay proceedings
was denied.

- 18 -

Warrantless Video Monitoring of a Public Washro.o •
To Gather Evidence of Gross Indecency Unreasonable Search and Seizure
Regina v. Lofthouse, 27 C.C.C. (3d) 553
District Court of Ontario

Complaints of suspicious goings-on in a shopping 11all and particularly in
the public washroom of a nearby public park, caused police surveillance and
officers secreting themselves in a closet off that men's washroom.
They
observed the accosting of young boys by a number of men and heard sounds
from the bathroom's cubicles consistent with homosexual acts taking place
while some of the suspicious men seem to be the look-outs. Police received
permission fr9m th~ Ci~y .Pa~ks department to install video equipment in the
washroom's vents to monitor the activities in the cubicles and at the
urinals~
Needless to say. many an unsuspecting citizen was caught in the
two day monitoring operation with "his pants down" or gave evidence of his
kidney function.
However, the officer manning the equipment was very
selective what he taped. He testified that only apparent criminal acts were
secured and 18 persons, besides the accused, were convicted of various sex
offences as a result.
The accused had entered the washroom one minute after his sex partner did.
Two men, also under surveillance because of suspicious activities, manned
the entrance door while the accused and his partner committed an act of
gross indecency in one of the washroom cubicles. All of the eight minute
affair was caught on candid camera and was, of course, sought to be accepted
by,the Court as evidence of the allegation of gross indecency.
The accused opposed the admissibility of the video tape. He claimed that
when a person closes the door of a washroom cubicle behind him, then he is
entitled to privacy.
The camera, with the policeman on the other side of
the lens, was an act of "search and seizure" he claimed. To render such a
search reasonable the police should at least have a warrant issued by the
impartial judiciary he said. The accused, relied heavily on U.S. casis but
no less on the decision by the Supreme Court of Canada in October 1984 when
it said that judicial search warrants were no longer to protect property and
license trespass, but to protect the privacy of individuals and said in the
same breath that any warrantless search is ipso facto unreasonable. This
left this Ontario District Court Judge to decide if the video monitoring and
capturing the accused in a compromising position was "search and seizure",
and if so, was that search and seizure reasonable.

*

Hunter v. Southam Inc., Volume 18, page 12 - 14 C.C.C. (3d) 97

- 19 -

There has been a legal inclination to define search as rummaging; looking
for something deliberately concealed or made inconspicuous in some way. The
"something" was envisioned to be contraband, something tangible, something
one can touch and has weight. What could only be seen, smelled or heard was
not considered to be something we can, in law, "search" for or, for that
matter "seize".
However, since our entrenched Constitution act has come into effect its
application has made quantum changes to the interpretation of matters like
these. As explained above, our judicial licences to search are no longer an
authorization to trespass and protect property but a means to protect the
privacy of citizens.
Interc~ption of a private communication is a search
and seizure and it is predicted that visual searches will receive the same
recognition. Section 8 of the Charter, said the Supreme Court of Canada, is
dealing
"with one aspect of what has been referred to as a right ·of
privacy which is the right to be secure against encroachments upon
the citizens' reasonable expectation of privacy in a fair and
democratic society".
The District Court Judge concluded from all this that the video monitoring
and taping was a "search and seizure" section 8 of the Charter refers to.
Furthermore, the Court found that a washroom cubicle is a place where one is
entitled to a reasonable expectation of privacy.
As surely as we have
similar places in our homes which we consider very private when in use, so
much more is it private when we use a public washroom. Quoting from reasons
for judgement by the U.S. Supreme Court* where it dealt with the
interception (a search and seizure) of communications in a public phone
booth, the Ontario District Court Judge said:
"The point is not that the booth is accessible to the public at
other times, but that it is a temporary private place whose
momentary occupants' expectations of freedom from intrusion are
recognized as reasonable".
The Judge applied this reasoning to the public washroom cubicle.
Having found that the police had searched a place of privacy and had seized
images of the accused's activities, it had to be determined if that search
and seizure were reasonable.
The Supreme Court of Canada held in 1984 that s. 8 of the Charter is there
to prevent unjustified intrusions, and not just a means to determine
afterwards whether or not a search should have taken place. A search

*

Katz v. United States, [J967) 389 U.S. 347

- 20 -

warrant is prior authorization and any search and seizure without such
authorization must, by its very nature, presumed to be unreasonable. This
means that the admissibility of evidence resulting from a warrant1ess search
has proof of constitutional reasonableness as a prerequisite. The burden of
that proof is on the Crown. In other words, where the absence of a warrant
compels a presumption of unreasonableness, the Crown must rebut that
presumption. Afterall, it is recognized that it is not always possible to
obtain a warrant either for practical reasons or because the circumstances
are not befitting the statutory provisions to obtain a search warrant. The
Judge pondered that in this case, because of the accused's activities, there
is judicial scrutiny of the search and seizure practice of police.
But what about the infringements of the privacy of all the citizens who
during this search used the washroom for purposes for which it was invented
by the English Mr. Crapper.
The Court, very. cognizant of the fact that a warrant less search is only
presumed to be unreasonable until proven otherwise, held that in this case
the search and seizure had been unreasonable, and that the accused was
entitled to consideration for the exclusion of the evidence obtained by that
search "and to have the truth suppressed".
For this, the Court followed the B.C. case of Regina v. Collins* and held
that admissibility hinged on circumstances and whether it would bring the
administration of justice into disrepute.
The police had acted quite prudently held the Court.
They had attempted
conceivable other means to gather the evidence and defence counsel's
suggestion that undercover personnel should have been used or notices posted
warning of the washrooms being monitored, were soundly rejected.
Police
were confronted with reasonable and probably grounds for believing that
gross indecency was committed in a public park frequented by children and
teenagers who played in various teams on the park's sport fields or
frequented the nearby mall.
Police authorities and management believed
there was no provision for a search warrant in the circumstances and did
issue strict policies on how the monitoring was to be done and restricted
the period of monitoring to a maximum of three days (only two were used).
Said the Court:
~very

"That the search failed to meet the constitutional standard of
reasonableness required bys. 8 (of the Charter) was not the fault
of the police so much as the lack of either a legislative scheme
of authorizations similar to the wiretap provisions of the
Criminal Code or a clearly enunciated, judicially imposed
standard".

*

R. v. Collins, [1983] 5 C.C.C. (3d) and Volume 12 ,
page 1 of this publicat!on

- 21 -

Despite the highly sensitive intrusive unreasonable search by police, they
had acted in good faith and with caution and prudence.
Therefore, the
administration of justice would not" be brought into disrepute if the video
tape in question was admitted in evidence .

Application
dismissed.

for

exclusion

of

evidence

Comment:
Since this investigation, section 443 C. C. , which had been thought
inadequate for a Justice to issue. a search warrant, in these circumstances,
has been amended. .Possibly_, 'the new subsection (b) to section 443. C.C. may
suffice for the purpose. It reads:
"A Justice who is satisfied by information upon oath in Form 1,
that there is reasonable ground to believe that there is in a
building, receptacle or place anything that there is reasonable
ground to believe will afford evidence with respect to the
commission of an offence against this Act or any other Act of
Parliament .... may at any time issue a warrant. ... authorizing a
peace officer to search the building or place .... "
The draftsman of this inserted subsection could possibly have made a greater
effort to have it blend and harmonize a little better with the rest of the
section, but it seems likely that a Justice might have issued a warrant had
that subsection been in effect when this investigation took place .
.Without the new subsection, s. 443 C.C. did not likely provide for a warrant
in the circumstances of this case.
It refers to anything related to an
offence that has been or is suspected to have been committed. In terms of
the offence, the old section was designed to deal with it after the fact to
discover proceeds of it or evidence in relation to it, while the new
subsection deals with anything yet to be used to commit an offence.
It
seems neutral in terms of the point in time in relation to the commission of
the offence.
I t says that when a Justice can be satisfied by means of a
sworn information, that there is reasonable ground in respect to location
and reasonable ground that at that location evidence can be obtained in
respect to the past, present or future commission of an offence, a search
warrant for that location (building, receptacl e or place) may issue.

* * * * *

- 22 -

Search Warrant Issued for Period of Bight Days To
Acco•modate Search and the Arrest of a Wanted Person

Regina v. Coull and Dawe, B.C. Court of Appeal Victoria V000285, December 1986
Police had grounds to believe that a Mr. Blackfoot was cultivating marijuana
at the house of his girlfriend. They were granted a search warrant and were
anxious to execute the search warrant when both were home.
As that was
rarely the case, it caused at least one such warrant not to be used.
Besides discovering evidence of cultivation police were interested in
arresting Blackfoot for another matter.
Police we~e accommodated i .n 'this . by a Justice of the Peace who did issue a
search warrant valid for a period of eight days. Police simply waited until
both parties were home and then executed the warrant. When the evidence of
cultivation was brought before the trial Judge, he held that the Justice of
the Peace had exceeded his jurisdiction and the warrant was consequently
quashed and the search, in the circumstances, had been unreasonable. (s.8
of the Charter of Rights and Freedoms). The evidence was, a s a result, held
to be inadmissible. The Crown appealed this decision.
The B.C. Court of Appeal had difficulty in finding the basis for the trial
Judge's views and conclusions.
Referring to U.S. precedents the Court.
found:
"
it has repeatedly been held that delaying the execution of
, a search warrant for the purpose of apprehending the subject is
entirely legitimate".
It concluded that in many cases not waiting for the suspect to be present is
an invitation for him to flee; furthermore, defence will argue that a search
in absence of the suspect is to his disadvantage.
The latter issue is
sometimes argued with such force that one would believe that it was a
constitutional right for him to be present where this was at all reasonable
and possible.
The B. C. Court of Appeal reasoned that i f i t is reasonable to delay the
execution of a search warrant to facilitate the apprehension of the suspect,
then it is also reasonable for the Judiciary to extend "the period of
currency" of such a warrant for the same purpose. An eight day currency in
the circumstances of this case (the known irregularity of the comings and
goings of the suspect) was not unreasonable held the Court of Appeal.
Afterall, it only authorizes one only search and hence the argument that an
extended period of currency exposes the home-owner to an unreasonable risk
of intrusion, is hollow from a constitutional standpoint. Although the

- 23 -

Justice of the Peace had been generous in the circumstances, he -did not lack
jurisdiction and was not excessive in making the warrant valid for an eight
day period.

Crown's Appeal was allowed
Search warrant was restored

- 24 -

Assault - Consent - Self Defence - Intent

Regina v. QUIDING, County Court of Westminster,
No. XO 15790, May 1986

A girl had a "by invitation only" party. The accused, with some friends,
crashed it. The girl's mother escorted the accused and his buddies out and
was, in reciprocity, subjected to obscenities. The mother was worried about
the crashers and asked her brother-in-law to come over. Indeed, the accused
came back with a larger group this time.
Again, the mother explicitly
ordered them to leave and in response the accused shook a beer bottle and
sprayed the mother.
The brother-in-law shoved the accused in the direction of the street to
hasten his exit.
The · group, wanting to trespass, started to throw snowballs at the windows.
The brother-in-law and "a helper" went outside and
approached the group of "young persons" who, apparently, persistently sought
access to the party. The "helper" approached the accused to speak to him,
but was hit in the face with a beer bottle with such force that the bottle
shattered and lacerated his face severely.
It was conceded that the blow
was in response to a "push" by the "helper".
Firstly, the Court found that the injuries sustained by the blow with the
beer bottle amounted to bodily harm as defined ins. 245.1(2) C.C.
The accused had also suggested that, due to "the push", the encounter
amounted to a fight. In other words, it was an event to which both parties
consented. Hence, the blow delivered by means of the bottle was consented
to and did not amount to an assault. In the alternative, "the push" was an
assault that one reasonably could expect to escalate.
Therefore, the
"bottle-blow" amounted to self defence.
The Crown countered that even if
the victim invited a fight by his actions and words, then the reaction by
the accused took matters completely outside the scope of consent, and there
was no justification for self defence, considering the circumstances. The
Court reasoned that there was already an intent to outrightly assault the
victim and the "push" was as good an opportunity to carry out that intent as
any. The accused's evidence, which told of aggressive and excessive force
on the part of his victim which had jeopardized him in terms of his personal
safety, was rejected and disbelieved. The accused's claim that the blow was
one of:
"I hit him before he would hit me" caused the Court to conclude
that the accused has the requisite "intent" and he was convicted of assault
causing bodily harm.
There was also an allegation that the accused was in possession of a weapon
dangerous to the public peace, to wit, the beer bottle.
The accused
counteracted the allegation by saying he had the bottle in his possession
for the purpose for which it was designed. The use of it in the assault was
impulsive and unpremeditated.
In other words, here was the accused in

- 25 -

possession of a perfectly legitimate object one moment and the next he used
it as a weapon in a reflex. How could he possibly have formed the required
intent to convert the bottle into a weapon?
Defence counsel referred the Court to precedents established by the B. c.
Court of Appeal* the relevant and significant portion of which establishes
that:
"When he has possession of the weapon lawfully, I do not think an
unpremeditated use of the weapon out of sudden anger or annoyance
for the forbidden purpose is enough to convert a lawful
possession .... into an unlawful one....
The formation of the
unla~ful purpose .... must precede its use ....
The interval of time
between the formation of the purpose and the use of the weapon
need .not be long. It may be in some cases very short but the gap
11ust be significant." _ '
In this case, the evidence showed that there was such a gap, after the
victim had pushed the accused.
The judgement described the accused's
physical reaction prior to delivering the blow. It was akin to the maneuver
often used by the macho character in a movie. To have the advantage of the
element of surprise and maximization of the impact of the blow, the
assailant will make at least a ninety degree turn as to make his intended
victim believe that he is going to walk away from the scene, only to
suddenly turn back and deliver the blow when the victim has his guard down
and is commencing to show all the delights of a victor. (This comparison is
mine and not the Courts).
That moment of turning was a gap in time, sufficient to infer that the
accused had formed the necessary intent that converted the bottle into a
weapon.
Accused convicted of assault causing bodily
harm and possession of a weapon dangerous to
the public peace.

*

Regina v. Chalifour, 14 C.C.C. (2d) 526 .

Also R.V. Flack.

- 26 -

Dangerous Driving and Iapaired Driving Charges
Arising fro• One Act of Driving

STALINSKI and The Queen, The County Court of Kootenay,
Nelson Registry CC180/1985, May 1986
The accused did some fancy driving and spinning on a public street and, in
the process, collided with a parked but occupied car. The accused and the
person in the parked car knew each other and a conversation took place. The
accused tried to persuade the other person not to call police. He conceded
to be drunk and said he could not afford an impaired charge. He did more
than imply that if police were called he would and could outrun them. As
his pleas were of no avail, the accused squealed away. Police called at his
home the next day and the usual after effects of inebriation were quite
evident. · As to an explanation ·of the collision, the accused said:
"I
booted it and.it got away on me. I have been so good for so long, and then
I just flipped out." . In his testimony the accused owned up to having drunk
3 ounces of gin during that day (how much was before the accident is not
related), and blamed the accident on a mechanical failure in that the
throttle did stick.
Based on the information supplied by the occupant of
the parked car (a medical doctor) and the eyewitness' version of the
accused's driving, charges of dangerous and impaired driving were preferred.
Needless to say, that the sufficiency of the evidence and the propriety of
two charges arising from one act of driving were the kernel of the defence
strategy.
At the trial level, these arguments were to no avail, but the
accused appealed the multiple convictions that resulted.
T.he County Court Judge, who heard the appeal, he.id that the doctor's
observations of the accused at the scene, the accused's volunteered opinion
as lo his own condition at the time of the accident and the symptoms the
police officer observed the following day were sufficient to support the
conviction of impaired driving.
In regards to the "dangerous driving" conviction defence counsel submitted
that the evidence leading to the conviction of dangerous driving (the. manner
of driving) was part and partial of the evidence that proved the impairment
while driving.
In other words, the matter of the criminal intent (the
guilty mind) was the same for both charges.
The County Court Judge did not accept the argument.
The accused clearly
intended and knew he was driving while "drunk."
That showed the intent
necessary for impaired driving.
The intent to drive dangerously was
distinct and supported by his manner of driving that resulted from "booting
it." The facts were such that the conviction of dangerous driving did not
establish everything necessary to convict for impaired driving. Hence the
doctrine (res judicate) defense counsel raised was not available.
Accused's appeal dismissed
Both convictions upheld

- 27 -

Propriety of Multiple Convictions Arising fro• one Delict
Overlapping Offences
The Queen v. Prince, Supreme Court of Canada November 1986

The accused, Sandra Prince, stabbed a pregnant woman in the abdomen. The
victim was 6 months pregnant. The injuries sustained caused the premature
birth of a baby boy who lived for only 19 minutes. The accused was charged
with the attempted murder of the mother and manslaughter in regard to the
baby.
She was convicted of caus,ing bodily harm to the mother. The manslaughter
charge, in· relation· to. the "unnamed male child", became subject to an
argument about the propriety of multiple convictions in respect to one
single act of causing bodily harm.
In 1975 the Suprefe Court of Canada dealt with an appeal by a party by the
name if Kienapple who was convicted of raping a 13 year old female person
who was not his wife.
In addition he was charged with having carnal
knowledge of a female person under the age of 14 years (statutory rape).
Despite the fact that neither offence is included in the other, the Supreme
Court of Canada held that the two offences overlapped to such an extent that
i t would be wrong to convict Kienapple of both.
Afterall, when all the
essential ingredients of rape (as the crime then was) were proved there was
on! y the age of the victim to be proved for the statutory rape. The two
crimes had "male person, having sexual intercourse with a female person not
his wife" in common. In carnal knowledge of the under 14 years old girl,
consent is of no consequence.
The Supreme Court of Canada then set the
precedent that is now known as the Kienapple principle, that there are not
to be mu! tiple convictions arising from one "cause, matter or deli ct."
(Note that the Court did not include 'offence'). Eversince this decision,
the Kienapple doctrine has been one that caused considerable debate and
inconsistent applications.
To put i t bluntly, the criminal justice
community has been al 1 over the place on this one, until in October of
1985 ** the Supreme Court of Canada seemed to modify its views of multiple
convictions arising from one incident or act . It reiterated that where

*

Kienapple v. The Queen, (1975] 1 S . C.R. 729 .

Explained in Volume

22, Page 2

**

Regina v. Krug - See Volume 22, page 2 of this publication .

- 28 -

parliament had clearly indicated in its enactments that a person must answer
for more than one allegation arising from one act of wrongdoing, multiple
convictions are appropriate. Furthermore, the Court seemed merely to return
to the reasoning prior to Kienapple, in respect to multiple convictions.
It seems fair to say that the Kienapp1e decision was designed to create a
zone between the rigid double jeopardy rule and where, in law, offences are
clearly separate and distinct from one another. Multiple convictions were
occurring where that seemed excessive and unjustified.
Defence counsel made a preliminary motion when the trial started, that the
proceeding be stayed on the basis of the Kienapple principle.
The trial
Judge denied the motion and had reasoned that where there is a single
wrongful act involved, there can only be one conviction except in "multivictim situations!'.
This, case ended up in the Manitoba Court of Appeal
which unanimously decided that, due to the Kienapple principle, the accused
could not be convicted of manslaughter.
Accordingly, the indictment was
quashed. The Crown appealed this decision to the Supreme Court of Canada.
It seems fair to say that the Supreme Court of Canada conceded that the
Kienapple principle had gone in too many different directions and a
clarif.ication was overdue. The Court was clear in saying that the "one act
test" is not correct.
There are many situations where persons have
committed one act and are thereby involved in more than one deli ct.
The
following are some examples:
1.

Mr. Cote committed a robbery. He served a sentence in gaol and was,
two years later, found in possession of the proceeds of the robbery.
When charged with that possession he argued that there had been one
delict, "robbery", and possession was part of it. Due to the elapsed
time, the possession was not a continuation of the robbery.
The
robbery had somewhere along in time stopped and possession had begun
([1975) 1. S.C.R. 303).

2.

A Mr. Kinney et .!1 were convicted with hunting out of season as well as
pi tlamping arising from one act of hunting.
This , notwithstanding,
there were distinct delicts causes or matters which supported separate
convictions. ([1979] 46 C.C.C. (2d) 566).

3.

A Mr. Logeman was convicted of impaired driving and driving while
suspended. The Kienapple principle did not apply despite the fact that
there was one act of driving ([1978) 5 C.R. (3d) 219 B.C.C.A.).

4.

A party by the name of Lecky was convicted of contributing to juvenile
delinquency and trafficking a narcotic arising from one act of
trafficking ([1978] 42 C.C.C. (2d) 406).

5.

A party by the name of Earle was convicted of breach of probation and
possession of a narcotic while the latter charge triggered the former.
((1980 ) 24 Nfld. and P.E.I~R. 65) etc.

- 29 -

On the other hand, where charges of impaired driving and "over 80 mlg" arise
from one act of driving, the Kienapple principle does clearly apply and
multiple convictions are improper.
The Supreme Court of Canada concluded therefore that the simple "one act
test" is inadequate. "Two for the price of one" (my example) is not in the
legal bargain basement. The Kienapple principle only applies
" If the offences stem from the same act and have a common element
or elements."
When an element is used for one conviction, then it is used up.
In other
words, the principle applies when the two allegations overlap in elements.
The Supreme . Court.of
referred to
. . Canada
.
* their Kienapple decision in 1985 on
this very point when, in a B.C. Case , a man was charged with robbery and
possession of a restricted weapon arising from one hold up. In that case,
the Court merely said:
"Of course he can be convicted of both offences."
However, the Court allowed his appeal in respect to a conviction of pointing
a firearm.
In other words, if two charges are preferred arising from one
act then the Kienapple principle applies only i f there is, besides the
factual nexus (the one act), also a legal nexus (the overlapping elements).
In the absence of those nexus (links), dual convictions are appropriate.
The accused, in this case**had strongly relied on a decision by the Supreme
Court of Canada in 1981.
In that case, the accused had deliberately set
fire to his bed in a hotel. Consequently, one person died in the fire. The
accused was charged with the setting of the fire and manslaughter. To prove
the manslaughter, the Crown relied on s. 205 (5) (a) C.C. which states that
a person commits culpable homicide when he causes the death of a human being
by means of an unlawful act, in this case, the setting of the fire. That
made the unlawful act (the fire) part of the homicide, hence there could not
be a conviction for both offences.
The one was an element of the other.
The accused, in this case, argued that the Crown relied on the unlawful act
of stabbing the woman who happened to be pregnant, to prove the manslaughter
of the baby.
The Supreme Court of Canada responded that s. 206 (2) C.C.
made the homicide by stabbing a manslaughter in this case. It simply states
that causing injury to a child before or after its birth as a result of
which the baby dies, amounts to homicide .

*

R. v Krug, Volume 22, Page 2 of this publication.
case as complimentary reading to this case.

**

R. v Hagenlocker, [1981] 65 c.c.c. (2d) 101

Recommend that

- 30 -

In 1975, when deciding the Kienapple case, the Court had saia that when the
principle applies and the person is convicted of the main offence, an
additional conviction is "meaningless as a distinguishing feature."
To
consider the consequence of the stabbing (the death of the baby)
"meaningless as a distinguishing feature", when Parliament has specifically
provided it to be homicide in the circumstances, would be frustrating the
physical safety of the public, the very objective of that provision.
Furthermore, the Court held that the consequence of a wrongful act,
particularly where it caused the death of a victim of violence, is a "new
relevant element" capable of distinguishing two convictions in respect of a
single unlawful act by an accused.
In addition, if the convictions relate
to different victims, the rule of multiple convictions does not apply. One
pull of the trigger of a high-powered rifle may kill two or more persons
with that single shot.
A fire may cause multiple deaths as may a single
bomb, etc.
The Kienapple principle had no application, and

The Crown's appeal was upheld
Accused submitted for trial on the
manslaughter indictment

- 31 -

Bntrapaent
The Queen and COUPAL, B.C. Court of Appeal,
Vancouver Registry CA 003627, November 1986*
A Mrs. Bloome was arrested in December of 1983, for possession of cocaine
and stolen property.
The charges were not preferred until March of 1984.
After being charged, Mrs. Bloome approached her daughter's ex boyfriend, the
accused, and pleaded with him to get her some cocaine to lighten her pains
caused by terminal cancer. The accused was reluctant and actually refused
to comply.
Mrs. Bloome then went to the police and offered to deliver a
cocaine dealer if they would drop the charges against her.
The officers
responded that if she did deliver, the best they could do was mention her
cooperation to the prosecutor. They, in fact, told her that she was on her
own. Mrs. Bloome then we9t back to work on the accused. She told him she
had found someon·e wh·o would supply her with cocaine but she needed someone
to protect her during the transaction. She offered him $700 - to provide
the protection services and to be the go-between the dealer and her. When
the accused delivered the cocaine a man was with Mrs. Bloome. She had asked
the accused to identify himself as a drug dealer.
The man with Mrs. Bloome
was a police officer and the accused was arrested for trafficking.
He
implied that he had complied with all Mrs. Bloome' s request out of
compassion for a dying woman.
At trial, defence counsel had argued that the accused had been entrapped and
that the proceedings should be stayed. The trial Judge had declined to do
so and convicted the accused. He appealed the conviction and, again, raised
the matter of entrapment.
His arguments before the Court of Appeal were
strengthened by two decisions on entrapment since the accused's trial; one
' the ~~preme Court of Canada ** and, subsequently, one by the B.C. Court of
by
Appeal*
Entrapment was, at the time of this appeal, recognized as "an
aspect of the abuse of the process of the Court" which ought to result in a
judicial stay of proceedings.
The evidence, in this case, showed that the authorities meant business when
they told Mrs. Bloome that she was on her own. She had devised the plot and
had approached and set the accused up all on her own. Police never learned
the identity of the accused until they were asked to attend to apprehend the

*

For all details, see Volume 20, page 7 of this publication .

**

R. v JEWITT, Volume 22, page 29 of this publication

***

R. v MACK, Volume 22, page 29 of this publication

- 32 -

man who was going to sell her one-half pound of cocaine. Within 24 hours
thereafter, the accused was arrested. Said the 8.C. Court of Appeal:
"There is no basis in the evidence for fixing the police with the
responsibility for what Mrs. Bloome decided to do" .............. .
" ... the evidence does not show entrapment of the appellant in the
sense that the prosecution of the charge would constitute an abuse
of the process of the Court. "

Accused's appeal was dismissed
Conviction for trafficking upheld
Comment:
The decision by the Supreme Court of Canada to recognize entrapment as an
aspect of the abuse of the process of the Court (not a substantive defence)
did not arise from any Charter provisions.
However, it is difficult to
reason that there is a difference between a private citizen acting on behalf
of the Crown who infringes another persons rights or freedoms and a person
initiating events amounting to entrapment resulting in evidence the Crown
adduces in a prosecution.
Al though this is still an unsettled issue, most Courts seem to interpret
section 32 of the Charter to mean that it (the Charter) exclusively applies
to the governments and its agents. That would mean that one private citizen
cannot infringe the rights and freedoms of his fellow citizen.
This was
tested recently in Alberta when a tavern manager properly arrested, but
unreasonably searched a client he believed to be under age in his
establishment and found marijuana.
Police were called and the young man
·stood trial for possession. The Crown urged that the Charter did not apply
to the manager and that, therefore, there was no infringement of the right
to be secure against unreasonable search and seizure.
The trial Judge
disagreed and so did the Alberta Court of Appeal. These Courts did not deal
with the question if the Charter applies to everyone, but held that when
anyone exercises a power conferred by the law, that power is derived from
the "sovereign", and the act is one in obedience to the law. The arrest by
the manager was, therefore, the exercise of a governmental function .
In
other words, whether peace officer or citizen, when we exercise a statutory
power, we act on behalf of the Crown whether that power is discretionary or
not. We join the Crown in its prosecutorial objective. Why should the same
test not apply for the purpose of entrapment. Mrs. Bloome, though for very
selfish reasons, joined the Crown when she entrapped the accused and the
Crown indicated approval when it went ahead with the prosecution.

- 33 -

A simpler argument is that if the recent law in regard to entrapment is to
disallow prosecutions of persons .who were importuned or committed offences
they were not predisposed to commit, then for the purpose of determining if
the process of the Court is abused, what does it matter who did the
entrapping?
I predict that the views of the B. C. Court of Appeal, as applied in this
case, will not survive future case law.

••••••

- 34 -

Police, During Search of a House, Answer the
Telephone and Iapersonate the Occupant. Does
this Amount to Interception of a Private Communication?

Regina v CHARTRAND, County Court of Vancouver,
Vancouver Registry No. C84 1915, November 1986
While searching the accused's home, the telephone rang several times. The
police officers answered the calls and the callers were made to believe they
were speaking to the accused.
From these calls, it was obvious that the
heroin found in the home was possessed by the accused for the purpose of
trafficking.
One call answered by an officer. went something like this:
Caller:
Const:
Caller:
Const:
Caller:
Const:.
Caller:
Const:
Caller:

Paul?
Yeah
It's Linda . Do you know what I want?
Yeah
The same stuff Joanne got the other night.
Yeah
Can I come over?
Yeah, can you come right away?
I'll be there in five minutes.

The Crown sought to have these calls admitted in evidence, but defence
counsel objected. He submitted that the call was intended for the accused
(who was only a few feet away from the phone) and that the constable had
intercepted a private communication and, as a consequence, s. 178 .16 c. c.
applied and rendered the evidence inadmissible against the originator or the
intended receiver of that communication.
To show that the deception and
impersonation on the part of the constable amounted to an interception,
defence counsel relied on the applicabl e portion of the definition of
"intercept" ins. 178.1 C.C.:
"Intercept includes .... to acquire a communication or acquire the
substance, meaning or purport thereof ."
In the mid seventies the Alberta Court of Appeal reviewed a somewhat similar
case* and held that in circumstances where "Joe Doe" receives a
communication that was intended for "Richard Roe", does not amount to an
interception as intended by Parliament.
The Court seemed to take the
position that the interception the law prohibits is one of a third party
interference between the originator and the intended receiver of the

*

R. v JllcQueen, 25 C.C.C. 262

- 35 -

communication.
However, (although this is not too clear) in the Alberta
case it appears that a message was left for the intended receiver of the
communication.
This message somehow ended up in the hands of the
authorities, but did not take away from the fact that the originator
intended the person who answered the phone to receive and accept the
message.
Subsequent to the Alberta decision, the B.C. Supreme Court * decided a case
in which the circumstances seem to match those in this Chartrand case much
closer. In answer to the Crown's submission that there was no third party
interference in the private communication, the B.C. Justice, obviously
disagreeing with the Alberta Court of Appeal, said:
"How are we to know that Parliament intended to sanction the
interception of calls, by -impersonation or fraud?
I think i t is
more in keeping -with Parliament's intention to say that Parliament
intended to say there must be authorization granted to intercept a
call........... by someone whom the originator never intended
should receive the call."
Subsequently, in a case with similar circumstances, a B.C. County Court**
had to consider the admissibility of a communication between a male police
officer and a caller who asked for "Shirley Tate".
The officer did not
change his voice or in any way disguise the fact that he was not "Shirley".
He may not have volunteered to identify himself or his function, but was
apparently not asked for that information as the Court concluded that there
had been no impersonation or fraud.
Obviously, something was said to the
officer that was important to prove a criminal allegation as the Crown
adduced the evidence, and the defence urged its inadmissibility on the basis
of it being an unauthorized interception of a private communication. After
holding that the case was distinct from the one decided by the B.C. Supreme
Court, the County Court Judge said:
"In the case at Bar, there was no deliberate impersonation. It is
simply a case of a police officer who was part of the police group
raiding Mrs. Tate's home answering the phone when it rang. I am
of the view that the intention of the person placing the phone
call was to speak to whoever answered. He presumably, because he
asked for Mrs. Tate, had a further intention of getting into
communication with her. It is quite conceivable that even without
the police raid, the person who telephoned in would have had to
have spoken to another person to get Mrs. Tate on the telephone."

*

R v BENGERT et al [ 1978] 47 C.C.C. (2nd) 457

**

R. v Carrothers - Unreported

- 36 -

The County Court Judge in this Chartrand case concluded -that the call
intended for Paul Chartrand was recorded in that notes of it were taken:
that there was no authorization t~ intercept and that neither the caller nor
the intended receiver (the accused) consented to the officer's interference.
It was also found that the officer impersonated the accused, Chartrand, and
that made the case different from the County Court decision quoted above.
This left the JudgP. to follow the binding decision by the B.C. Supreme Court
and he ruled that the evidence of the telephone conversation between the
impersonator, Paul (the police officer) and "Linda", the caller,
inadmissible in evidence.

* * * * **

- 37 -

Counselling to co.. it Murder - Contract Killing-

Regina v NEWSOM, County Court of Vancouver, No . CC86 0939
November, 1986
The accused was charged , together with a Mr. W. and Ms. D, with ul ter ing
forged documents (share certificates).
While awaiting trial on those
charges a Mr. Hogbin, who knew the accused, encountered him and another man
discussing the forgery charges. The accused had said that he wanted one of
the witnesses in the case "done in".
Mr. Hogbin claims that he had
interpreted this to mean that the accused wanted the wt tness "beaten up".
However, when sometime later (on another occasion) the accused became a
little more descriptive, saying that he wanted the witness "dropped in 2000
feet of· water" so the body would never be found, i t dawned on Mr. Hogbin
that the accused-wanted . the witness dead. Mr. Hogbin went to the police and
reported what he had learned.
Upon instructions of the police, Mr. Hogbin arranged a meeting with the
accused at which he introduced an undercover police officer (equipped with a
body pack transmitter) as a person who was willing to carry out the wishes
of the accused for $1200. The accused, and the police officer, then removed
themselves from the meeting place and completed the negotiations for the
killing in the lane behind the pub (the meeting place) in the absence of Mr.
Hogbin.
The officer and the accused had an additional conversation four
days later in which additional details were discussed.
As a consequence of those negotiations, the accused was charged in two
separate counts, with counselling Mr. Hogbin and the undercover officer to
c'ommi t murder.
The accused testified at his trial in support of his threefold defence: (a)
innocent intent; (b) entrapment, and (e) that he did not counsel Mr. Hogbin
at any time to murder anyone.
To support the defence of innocent intent the accused told the Court that he
had known from the very outset that the "contract killer" was a police
officer.
He had wanted to embarrass the police force as they had handled
his case badly. He had done no more than pulled the officer's leg in the
full knowledge that the phoney counselling would never result in a murder.
Furthermore, the intended murder victim would have no evidence of any
consequence to give at the accused 1 s trial for forgery. For all of these
reasons, there simply was not the required means rea to have committed the
alleged offence of counselling to commit murder.

- 38 -

The Court rejected the accused's evidence totally.
In no_ way could the
Judge imagine anyone pull a prank like this while awaiting a trial that
could, for the accused, be so adversely affected by even a hint of wanting
to eliminate a witness.
The defence of entrapment was also soundly rejected in that:
a)
b)
c)

the offence was not in any way instigated by the police:
the accused was not ensnared by police in committing the
offence; and
the police scheme was not shocking or outrageous.

The accused had simply been accommodated in carrying out his criminal
intentions which he had clearly indicated (prior to any police involvement)
he was predisposed to pursue.
The police . involvement wa'.s proper and called for to prevent a far more
serious crime than the- accused was given the opportunity to commit by
police.
The accused's involvement with Mr. Hogbin did not amount to counselling.
The involvement with the undercover did. Hence, the accused was acquitted
of one count and convicted of the other.

••••••

- 39 -

LEGAL TID-BITS
Conviction on an Unexplained Single Fingerprint
A woman came home from work and found her house had been broken into. A
considerable amount of valuables had been taken. A front window was found
opened, but on the exterior of a rear window which showed no signs of forced
entry, partial prints of one of the accused's index fingers and palms were
found. He denied having broken into the house but testified that he and a
friend had been in the neighbourhood on a "poppy picking expedition". He
could not explain how his prints got onto the window. The trial Judge had
held that there was no othP.r. reasonable explanation for the prints than the
accused was the one who had broken into the house and the accused was
convicted. The B.C. Cour~ of Appeal dismissed his aipeal, holding that the
verdict was· not unreasonable in view of the evidence.

Is "Speeding" in British Columbia a "strict" or "absolute"
liability offence?
A Mr. H. contended that if he had exceeded the speed limit, it was despite
due diligence on his part. Due diligence is a defence to a strict liability
offence but not to one of absolute liability.
Basically, offenses are
divided into three catagories in terms of intent.
Mens rea
(criminal intent) is a prerequisite to nearly all Criminal Code offenses and
even to some regulatory provincial offenses where the language of the
enactments clearly indicate this (wilfully and/or knowingly). Mens rea is
subdivided into general and specific intent. Strict liability offenses are
offenses against regulatory laws:
11ostly provincial statutes.
Due
diligence (having taken reasonable care to avoid or prevent the offence) is
a defence to a strict liability offence. However, there are regulatory laws
so essential to public safety and health that we cannot afford any defence
other than doubt that the offence occurred. Those offences are known as
absolute liability offences. If it is found that the offence was committed
then the person the law renders liable mus t be convicted regardless of his
reasonable care and total lack of intent. Many excuses and due diligent
defenses can be imagined for speeding. However, they will likely not be to
any avail in many provinces, including British Columbia.
The Judge who
tried Mr. H. held that speeding is an absolute liability offence.** He took
his plight to the B.C. Court of Appeal which confirmed the trial Judge ' s
ruling. Mr. H's appeal was dismissed.

*

Regina v. Christopherson - B. C.C.A. No. V 000193 Victoria Registry

**

Regina v. Harper,
September 1986

B.C.C.A.

No. V 000074

Victoria Registry,

- 40 -

Failing to Pull Over for Police And Careless Driving Dual Offenses Arising fro• One Incident
In 1974 the Supreme Court of Canada * held that a person cannot be convicted
of more than ~ offence arising from ~ delict.
In that case there had
been an act of sexual intercourse which resulted in an allegation of rape
and sexual intercourse with a female person under the age of fourteen years.
The Court held that if rape had been proven then all there was left to prove
for the second offence was the age of the girl to convict for both offenses.
This caused the offenses to "overlap" and the Court to rule as it did
despite the fact that neither of the offenses are included in one another.
Another example of such an overlap is impaired driving and "over 80 mlg.".
In the one case police chased the accused for a distance of 10 miles. She
rode a motorcycle while she had been drinking, and without a licence for
herself or ·the bike.- ·I_n, the other case, there was a shorter but intense
chase where the accused, who had been drinking, ran into the police car to
get away.
The convictions sought were, in the first case, for failing to
stop for police and careless driving and in the other, dangerous driving as
well. The lower Courts considered that the precedent by the Supreme Court
of Canada did apply and that one conviction only could result from this one
incide.nt of driving. The Ontario Court of Appeal reversed this decision and
ruled unanimously that the Supreme Court of Canada decision in 1974 did not
apply. These offenses were totally separate and distinct from one another
with only the act of driving common to both.
Dual convictions in these
circumstances are appropriate held Ontario's highest Court.
Regina v. Brisson and Regina v. Kennedy, 27 C.C.C. (3d) 282
Note: The Kienapple case has caused considerable confusion over the last 12
years, as the judgement is vague in terms of the application of the doctrine
the Supreme Court of Canada attempted to create. Furthermore, it seems the
Supreme Court has somewhat mellowed or reversed its view on this issue. See
Regina v. Krug, page 2 of Volume 22 of this publication, and The Queen v .
Prince in this volume.

*

Kienapple v. The Queen, 15 C.C.C. (2d) 524

- 41 -

Discriminatory Sex Laws
Section 146 (1) prohibits a "male person" to have sexual intercourse with a
female person who is not his wife. If such sex act amounts to assault then
consent is immaterial unless the accused is less than 3 years older than the
victim. Apparently, a Mr. Bearhead had sexual intercourse with a girl under
the age of fourteen, which the crown alleged amounted to sexual assault as
well. He wanted to raise the defence of consent but s. 246.1(2) C.C. barred
him from doing so as he was more than 3 years the senior of the girl. The
accused petitioned the Alberta Queen's Bench to have the sections 146 ( 1)
C.C. and 246.1(2) C.C. declared without force or effect as they are
discriminatory and consequently inconsistent with s.15 of the Charter.
After all, the one discriminates in regards to gender and the other in
respect to age. A female person can with impunity have sexual intercourse
with a male person under the age of fourteen argued the accused and what has
age got to do with consent?
The Court conceded that the sections are discriminatory and inconsistent
with the Charter. However, girls get pregnant and boys don't: girls are in
need of a greater protection because of things nature and not law has
created. Furthermore, the consent provision made eminent sense as the age
tends . to make the boy and girl peers and the girl less vulnerable to more
sophisticated allures of older men. Subjecting the discriminatory sections
to the validity test contained in s.1 of the Charter the Court concluded
that the provisions are demonstrably justified in a fair and democratic
society.
Application denied

Regina v Bearhead, 27 C.C.C. (Sd) 546

*••• *•
Seized Property - The OWner - The Charter
The relatively new sections of the Criminal Code require police to submit a
report to a Justice if it is considered that seized property must continue
to be detained for the purpose of investigation or legal process. If no

- 42 -

proceedings have commenced within 90 days of the seizure of the fiOods the
Crown must show justification for continued retention of the goods .
In this case, the Crown gave notice to the Justice that it wanted to show
cause for detention of goods beyond 90 days. The owner of the goods had not
been notified of the hearing and the Court refused to proceed with it. The
Judge, in essence, reasoned that the retention of seized property offended
87784477he Charter which grants the right to be secure against unreasonable
search and seizure. He appeared to be of the opinion that a hearing under
s. 446(2) C.C. is an axercise to test the limitation of that right (the
continued detention of seized property) as well as its justification (see
s.1 of the Charter). The Crown had taken the position that nowhere in the
relevant sections is there an obligation to notify the owner of the property
(the retention of which is required beyond the 90 day limit) and petitioned
the Newfoundland Supreme Court to order the Justice (probably the Provincial
Court) ·to get on with th~ hearing. The Supreme Court Justice agreed with
the Crown that the ·owner needs not to be notified as he is sufficiently
protected under the criminal code provisions. He can initiate applications
on hfs own and had adequate access to the Court should he wish to dispute
the justification for the retention of his property. Furthermore, the Court
held that s. 8 of the Charter had no application at all as "seizure" and
"detention" in relation to property, are quite distinct from one another.
The Charter deals with seizure only. Section 446 C.C. provides for disputes
or continuation of detention of such property. Application was granted and
the order the Crown sought for continuation of the hearing was issued.

re:

Barnable P.C.J. and The Queen, 27 C.C.C. (3d) 565

*

Sections 445.1 - 446 of the Criminal Code