IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.

BY THE BOOK- New Law

Did you know...
... that s.4.28(8) of
British Columbia’s Motor
Vehicle Act Regulations only
allows certain officers to
“drive an official vehicle
equipped with blue flashing
lights and illuminate them
in the discharge of the
officer’s duties”. These
officers include:
members of municipal
police forces;
members of the RCMP;
members of the military
police;
conservation
officers;
park rangers.

SLOW DOWN FOR OFFICER
SAFETY

Official vehicles include police,
fire, ambulance and tow vehicles,
as well as vehicles used by
commercial vehicle safety and
A new Division 47 in British Columbia’s
YIELD TO ONCOMING
(Regulatory)
enforcement personnel, passenger vehicle
Motor Vehicle Act Regulations
hasTRAFFIC
been
This sign indicates a single lane situation. Yield to all oncoming
inspectors, conservation officers, park rangers,
traffic, stopping
if necessary.
created. This provision
requires
drivers
Colour: Black and red on white. Red and white reflectorized.
and special provincial constables employed in
approaching stopped official vehicles with
the Ministry of Forests and Range.
flashing lights to slow down and, if safe to do
so, move over into the adjacent lane in order
The new law came into force on June 1, 2009
to pass90by.
x 120 cm
and drivers who fail to obey may be ticketed
MAXIMUM SPEED (Regulatory)
$173 inand assessed three (3) penalty points on
This sign indicates
maximum
speed permitted,
On roads posted
at 80thekm/h
and
kilometres per hour, under ideal conditions.
conviction.
above, drivers
must
toreflectorized
70 km/ background.
Colour:
Blackslow
on white
h and on roads posted below 80
See page 3 for complete wording.
km/h must slow to 40 km/h.

Motor Vehicle Act Regulations

20/04/09 3:03 PM

60 x 75 cm

Be Smart & Stay Safe

MAXIMUM SPEED AHEAD
This sign gives information of lower maximum speed ahead.
Colour: Black on white reflectorized background.

Volume 9 Issue 3 - May/June 2009

Highlights In This Issue
Traffic
Act & Common Law Detention Powers Not
:1;:<1;:=>0140=:1>01>>?@
Mutually Exclusive
!"
Vehicle Stop Not Arbitrary Despite Concurrent
!"#$%$&'()*(+,'(-.#/'012(3445
6
Motivations

7'18$9'(:;(<$=.9'(7'>?*@(7'#?=&(<?&'(A1(
Investigative Detention Not Objectively Justified::;
B""=(A1(C0?%9$%?/>'
Cash
& Cocaine Excluded

Unless otherwise noted all articles are
authored by Mike Novakowski, MA. The
articles
contained herein are provided for
0A140>@B*1C@D0#$%&E
4
information purposes only and are not to be
/%<@==@B>0=F0=:@0@91=FB
construed as legal or other professional
6
advice. !"#$%&'#('')#*'++,)*#-./0#
The opinions expressed herein are not
1/(2,3%+,.)#
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necessarily the opinions
of the Justice Institute
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of
British
Columbia.
“In Service: 10-8”
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welcomes your comments or contributions to
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this newsletter.
If you would like to be added
/1#+$'#*0'%+#9.0=>7?#@#
G+,H'/0>/7I/(JKL0M(JHK+6(
10
to our electronic
distribution list e-mail Mike
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mnovakowski@jibc.ca.

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PAGE 2
B"':/8'+%8,KL,2060/

National Library of Canada Cataloguing in
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Volume 9 Issue 3 - May/June
2009
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(!*$#'-./-01'2.--

DIVISION 47 - SPEED LIMITS AND
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stopped official vehicle or in the same lane in
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(iv) a park ranger appointed under section 4 (2)

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(v) a person employed in the Ministry of Forests
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Volume 9 Issue 3 - May/June 2009

TRAFFIC ACT & COMMON LAW
DETENTION POWERS NOT
MUTUALLY EXCLUSIVE

his concern that the vehicle may have been recently
stolen and not yet reported. The trial judge noted that
the police have a wide constitutional power to
randomly stop motorists to check for a driver’s
licence, registration, insurance, mechanical fitness of
R. v. Dhuna, 2009 ABCA 103
a vehicle, and the sobriety of the driver. These stops
are generally prescribed by provincial statute and
A police officer assigned to an auto
justified under s.1 of the Charter. In Alberta, such
theft unit was driving an unmarked
stops are authorized by ss.166 and 167 of the Traffic
police vehicle at about 1:30 a.m. in a
Safety Act (TSA) and the trial judge found the officer,
residential area. He was on the looka member of the auto theft unit, had the lawful
out for a black SUV that had been
authority to detain the accused, pursuant to these
stolen and was reported to be in the area. His
sections to determine if he was the
attention was drawn to another
registered
owner of the vehicle. The
vehicle driven by the accused.
“In our view, the officer in the accused’s detention was not arbitrary
As a marked police vehicle
present case was acting under and the officer was in the lawful
drove by, the brake lights of the
execution of his duty. Accordingly,
vehicle came on and it made a
dual authority when he
there
was no s.9 Charter violation
quick left turn onto a side street.
detained the [accused] –
and
the
accused was convicted of
The vehicle then made a second
under the TSA to check for possessing drugs for the purpose of
similar evasive manoeuver when
trafficking and weapons possession.
another marked police vehicle

registration and ownership of

drove by. As a result of these
the vehicle, and under his duty The accused appealed to the Alberta
suspicious driving manoeuvers,
the officer ran the licence plate
to enforce the Criminal Code Court of Appeal arguing the trial
judge erred in finding the detention
and found that the vehicle had
provisions against theft of a lawful and not a breach of his s. 9
not been reported stolen.
Charter right not to be arbitrarily
motor vehicle.”
However, it appeared that the
detained.
Although the trial judge
driver was attempting to avoid
found
that
the purpose of the stop
police contact and the officer suspected the vehicle
was to check the vehicle registration, which was
may have been recently stolen, but not yet reported –
authorized under the TSA, the accused submitted that
a fairly regular occurrence.
because there was also another distinct purpose
outside the TSA - the stolen vehicle investigation - the
The officer called for back-up to make a traffic stop,
TSA power was unavailable. He also suggested that
but before he could stop the vehicle, it pulled over to
the officer could only rely on his common law power
the curb and the accused exited the vehicle and
of detention—that of reasonable cause—but did not.
approached the front door of a residence. The officer
got out of his vehicle, identified himself, and directed
The unanimous Alberta Court of Appeal rejected the
the accused to stop and to move towards him. The
accused’s arguments. Provincial traffic act powers
accused was seen throw something away in the snow
and the common law power to detain are not
- a clear plastic item which later turned out to be a
mutually exclusive. The Court stated:
bag of crack cocaine. The bag was eventually found
and the accused was arrested. The officers searched
Police officers are empowered to stop vehicles at
the vehicle incidental to the arrest and found more
random (i.e. arbitrarily), even outside organized
drugs and weapons.
stop check programs, so long as they do so for
“legal reasons” related to driving a car, such as
In Alberta Provincial Court the trial judge found the
checking a driver’s licence and insurance,
accused was detained to determine if he was the
sobriety and mechanical fitness of the car.
registered owner of the vehicle the officer had seen
Provided the officer is acting lawfully within the
making suspicious driving manoeuvers and to allay
scope of the statute, such random stops are

PAGE 4

Volume 9 Issue 3 - May/June 2009
justifiable under the Charter. Random stops are
when he detained the [accused] – under the TSA to
justifiable under the Charter because of the
check for registration and ownership of the vehicle,
importance of highway safety; the public danger
and under his duty to enforce the Criminal Code
of impaired driving and motor vehicle accidents;
provisions against theft of a motor vehicle,” said the
and the relative importance of enforcing motor
Court. The trial judge made no error in concluding
vehicle offences which cannot generally be
that the accused was being stopped under ss.166 and
detected by observation of the driving (such as
167 of the TSA to check vehicle registration on the
possession of a valid licence and insurance,
basis of suspicious and evasive driving activity
mechanical fitness of the vehicle and the sobriety
observed by the police. The detention was lawful and
of the driver). It is accepted that the offence of
not arbitrary.
impaired driving involves driving activity and
also engages the purpose
of the TSA to achieve
Additionally, the officer had
safety on the highways.
“Police officers are empowered to stop reasonable grounds to detain
The mandate of the TSA
includes administration
and enforcement of
registration. The purpose
of stopping someone to
check registration
includes checking that
the vehicle is properly in
the possession of the
driver. This falls within
the broader purpose of
traffic safety, as well as
within the realm of “legal
reasons”… [references
omitted, paras. 16-17]

the accused under the common
vehicles at random (i.e. arbitrarily),
law power of investigative
even outside organized stop check
detention. “Here the officer had
a
reasonable and specific
programs, so long as they do so for
‘legal reasons’ related to driving a car, concern that the vehicle may
have been recently stolen,”
such as checking a driver’s licence and sated the Court. “That, coupled
with the evasive driving which
insurance, sobriety and mechanical
seemed aimed at avoiding the
fitness of the car. Provided the officer police and the officer’s general
is acting lawfully within the scope of the mandate as a member of the
[auto theft unit] to search for
statute, such random stops are
s t o l e n ve h i c l e s , p r ov i d e d
justifiable under the Charter.”
sufficient reasonable grounds
for the detention.” The accused’s
appeal was dismissed.

And further:

Complete case available at www.albertacourts.ab.ca

We see no reason to draw a bright line here
between traffic safety concerns and an
investigation of a possible stolen vehicle. More
importantly, there is no sound reason to do so
from a policy perspective. Why should police be
allowed to arbitrarily stop someone under the
TSA but not to selectively stop a driver in the
face of reasonable concern that the driver should
not be driving the vehicle for any number of
possible highway safety reasons - e.g. the vehicle
is being operated poorly or erratically, the driver
appears to be impaired, the driver is unlicenced
to drive, or is not in lawful possession of the
vehicle? [para. 19]

ACADEMIC EXCERPT:

Here, the officer’s purpose in detaining the accused
was to check his registration. The fact that the officer
also had a related legitimate purpose did not
invalidate the detention. “In our view, the officer in
the present case was acting under dual authority

“[O]nce the detainee has had the
opportunity to consult with
counsel...the police are free to
question a detained person, even in
the face of protestations that he or
she does not want to participate in the interview.
This means that, while section 10(b) provides
protection against self-incrimination through
access to counsel, it does not create a right not to
be interviewed or interrogated by state officials.” Hon. Justice Gary T. Trotter, “The Limits of Police
Interrogation: The Limits of the Charter” in Jamie Cameron &
James Stribopoulos, eds., The Charter and Criminal Justice:
Twenty Five Years Later (Markham: LexisNexis Canada Inc.,
2008) 293.

PAGE 5

Volume 9 Issue 3 - May/June 2009

VEHICLE STOP NOT
ARBITRARY DESPITE
CONCURRENT MOTIVATIONS

At trial in British Columbia, the officer testified he
would not have pulled the vehicle over if he had not
noticed the defect in the brake light. He said he
didn’t feel comfortable with the request to stop the
vehicle and had he not seen the defect he would
R. v. Kaddoura, 2009 BCCA 113
have asked for more information about the reason for
the stop. The trial judge found the officer’s motivation
A police officer arranged, as part of
for stopping the car was to identify the occupants,
an undercover operation, to meet
even though the officer felt he could stop it for the
with an individual for the purpose of
broken tail light. Since the officer’s aim or purpose in
purchasing cocaine in the parking lot
stopping the vehicle was to identify its occupants,
of a park. The transaction took place
the stop was an arbitrary detention and resulted in a
with the front passenger of the vehicle. The accused
s.9 Charter violation. And in
w a s a l l e g e d l y t h e d r i v e r.
obtaining the driver’s licence of the
Following the purchase, the
accused, the officer obtained
“The fact that the officer
officer watched the car leave and
“ c o n s c r i p t iv e ” e v i d e n c e , t h e
a vehicle description and licence
had other reasons to want
admission of which would render
plate number was subsequently
to
identify
the
driver
does
the trial unfair. The evidence
transmitted to other police
identifying the accused as the driver
officers in the area and a request
not transform a lawful stop
of the vehicle (and as a person
was made to pull the vehicle
into an unlawful one.”
possibly involved in the earlier drug
over for the purpose of
transaction) was obtained as a result
identifying the occupants. An
of the vehicle stop and was
officer on general patrol spotted
the vehicle and assumed it was to be stopped in
relation to a drug investigation—he was not given
any other information justifying a stop of the car.
However, the officer noticed that the left taillight was
damaged—the lens was cracked and white light was
visible when the vehicle braked—a violation of s.
4.17(3)(a) of British Columbia’s Motor Vehicle Act
Regulations. The vehicle was pulled over because of
the brake light problem.
After stopping the car, the officer asked the driver to
come to the rear of the vehicle, where he pointed out
the damaged brake light and warned the driver that it
was unlawful to drive the vehicle in that condition.
He then asked the driver for the vehicle registration
and driver’s licence—the officer’s invariable practice
when he pulled over a motor vehicle. The driver’s
name and birth date were recorded. He was not the
owner of the vehicle and the other two vehicle
occupants were requested to provide
identification. After identifying the occupants of the
vehicle, the officer allowed the vehicle to depart; no
arrests were made and no violation notices were
issued. But the accused was later charged.

PAGE 6

s.4.17(3)(a) of British Columbia’s
Motor Vehicle Act Regulations
“A stop lamp must be ...

capable of
displaying
only red light
visible from a
distance of
100 m to the
rear of the
vehicle in
normal
sunlight.”

Volume 9 Issue 3 - May/June 2009

excluded pursuant to s.
24(2) of the Charter. The
accused was acquitted
of unlawfully trafficking
in cocaine.
The Crown appealed to
the British Columbia
Court of Appeal arguing
the trial judge erred in
holding the vehicle stop
breached s.9 of the
Charter. The accused, on
the other hand,
contended that the “dual
purpose” stop was
tainted and thus
constituted an arbitrary
detention. In other
words, he suggested that
the legitimate purpose
(traffic safety) was
tainted by the ulterior
purpose (a criminal drug
investigation).

“The accused’s
constitutional right is
a right not to be
arbitrarily detained.
A roadside stop of a
vehicle with a
defective taillight is
not an arbitrary
detention. The
accused did not
have a Charter right
not to be identified
by the police – in
requesting his
driver’s licence and
recording the details
of it, the police
acted under
statutory authority
and committed no
unlawful act.”

Justice Groberman,
authoring
the
unanimous decision,
agreed with the Crown.
He found the officer had
proper grounds for stopping the vehicle because he
had observed a Motor Vehicle Act violation. “He was
fully entitled to stop the vehicle under that statute,
and to request that the driver produce his licence
and vehicle registration documents,” said Justice
Groberman. “The fact that the officer had other
reasons to want to identify the driver does not
transform a lawful stop into an unlawful one.” He
continued:
The accused’s constitutional right is a right not to
be arbitrarily detained. A roadside stop of a
vehicle with a defective taillight is not an
arbitrary detention. The accused did not have a
Charter right not to be identified by the police –
in requesting his driver’s licence and recording
the details of it, the police acted under statutory
authority and committed no unlawful act. [para.
13]

In this case there was no improper search nor
inappropriate questioning which followed the stop,
as has been a concern in other cases where evidence
obtained in motor vehicle stops has been ruled
inadmissible. Nor was it a case where police were
relying on a check-stop program authorizing arbitrary
detentions, where there is a prima facie infringement
of s.9 but justifiable under s. 1. In those cases, the s.
1 analysis is altered when a random check-stop is
used to conduct criminal investigations as well as
motor vehicle checks. The stop becomes more
invasive and the pressing and substantial objective of
promoting traffic safety can be diluted.
But here, the stop was not arbitrary because a
violation of the Motor Vehicle Act had been
observed. It did not constitute a prima facie
infringement of s.9 and therefore there was no need
to consider the effect of other police motivations for
the stop on a s.1 analysis. Whatever other concurrent
motivations the officer may have had for the motor
vehicle stop, one such purpose was to deal with a
Motor Vehicle Act violation. A lawful and reasonable
basis to stop a motor vehicle is not transformed it
into an arbitrary detention when a police officer has
additional reasons to effect it:
In summary, [the officer’s] decision to stop the
accused’s vehicle was not an arbitrary one; he
had witnessed a violation of the Motor Vehicle
Act, and was entitled to stop the vehicle, and
obtain the driver’s identification. The fact that he
also wished to know who was driving for the
purposes of a drug investigation did not
transform the lawful detention into an arbitrary
one. There is no suggestion that [the officer]
performed an unlawful search or otherwise
violated [the accused’s] Charter rights after
stopping him. [para. 24]

The trial judge erred in finding that evidence
identifying the accused as the driver of the vehicle
was obtained in violation of his rights under the
Charter, the Crown’s appeal was allowed, and a new
trial was ordered.
Complete case available at www.courts.gov.bc.ca

PAGE 7

Volume 9 Issue 3 - May/June 2009

INVESTIGATIVE DETENTION
NOT OBJECTIVELY JUSTIFIED:
CASH & COCAINE EXCLUDED
R. v. N.O., 2009 ABCA 75
Shortly after midnight a police officer
patrolling in an unmarked police car
saw the accused exit his car and enter
an apartment building that had two
glass doors. Another male, who had
been sitting on the stairs inside the second door,
reached his hand through that door to the accused’s
hand. A brief hand-to-hand exchange occurred. The
male disappeared into the building and the accused
returned to his car. As the accused was closing his
car door, the officer approached and ordered him to
exit. The officer told the accused that he was being
detained for a drug investigation, handcuffed him
and conducted a surface pat-down search. The
search revealed a hard object in his front pants
pocket. A subsequent search of the pocket found car
keys (the hard object), $800 cash, and a sandwich
bag containing 14 individually wrapped pieces of
crack cocaine. A cellular telephone on the driver’s
seat rang and the officer answered it. The caller
wished to buy drugs. The accused was arrested for
possessing drugs for the purpose of trafficking and
possessing proceeds of crime, and advised of his
Charter rights.

exchanges. He testified that, with his knowledge of
the neighbourhood, the time of night, and the reports
of drug transactions in lobbies of surrounding
buildings, he concluded that he had observed was
very similar to his experience with drug transactions.
He said he handcuffed the accused because of safety
concerns arising from the time of night, the fact that
he was working alone, his knowledge that drug
trafficking could be violent and involve weapons,
and the absence of anyone else in the area.
The trial judge ruled there had been no Charter
infringement. The officer had extensive experience in
drug-related investigations (undercover and
otherwise) and residents had complained of similar
modes of drug trafficking in the neighbourhood. The
judge concluded that the events observed gave the
officer cause to detain the accused for investigative
purposes. Furthermore, the officer’s handcuffing of
the accused was justified and it was prudent for the
officer to conduct a pat-down search because even a
handcuffed person in possession of a weapon could
pose a danger. The cash, the cellular telephone, and
the crack cocaine were admitted and the accused
was convicted of possessing cocaine.
The accused appealed to the Alberta Court of Appeal
arguing the trial judge misapprehended and
misapplied the law respecting arbitrary detentions
and searches incidental to investigative detentions.
The Crown conceded that the accused was detained,
but denied that it was arbitrary or that the search was
improper.

At trial in Alberta Provincial Court the accused
argued his rights under ss.8 (search or seizure) and 9
(arbitrary detention) were
breached and the $800
“Police officers ‘must be empowered
cash and crack cocaine
to respond quickly, effectively, and
were inadmissible under s.
24(2). The officer testified
flexibly to the diversity of encounters
he was familiar with the
area and had received experienced daily on the front lines of
complaints from residents
policing.’ Police conduct must be
about drug transactions
reasonably necessary or justified in
occurring in the
the specific circumstances, in the
neighbourhood. He
described his experience as
context of the nature of the liberty
a drug undercover officer
and his familiarity with interfered with and the importance of
similar hand-to-hand drug
the public purpose served.”

PAGE 8

The unanimous court noted the
delicate balance to be struck in
adequately protecting an
individuals liberty (the right to
walk the streets free from state
interference) while recognizing
legitimate police functions (the
necessary role of the police in
criminal investigation). “Police
officers ‘must be empowered to
respond quickly, effectively, and
flexibly to the diversity of
encounters experienced daily on
the front lines of policing,’” said
the Court. “Police conduct must

Volume 9 Issue 3 - May/June 2009

be reasonably necessary or justified in the specific
circumstances, in the context of the nature of the
liberty interfered with and the importance of the
public purpose served.”

the time of night could form part of the necessary
constellation of circumstances objectively
justifying detention.

The officer did not know the individual he
detained or the building he entered. He was
Reasonable grounds to detain has both objective and
aware that apartment blocks “in this area” were
subjective aspects. In citing the Supreme Court of
plagued with drug transactions in
Canada’s judgment in Mann,
their lobbies, citing citizen
the Alberta Court of Appeal
“ The presence of an individual complaints as well as his own
noted “the detention must be
in cases that had led to
in a so-called high crime area is experience
viewed as reasonably
drug arrests in lobbies “in this
necessary on an objective
relevant only so far as it
area”. He relied on the fact that
view of the totality of the
was a hand-to-hand exchange
reflects his or her proximity to there
circumstances, informing the
between the cross-appellant and
officer’s suspicion that there is
a particular crime. The high
s o m e o n e wa i t i n g i n s i d e t h e
building, with no conversation
a clear nexus between the
crime nature of a
between them. He did not see what
individual to be detained and
neighbourhood
is
not
by
itself
was exchanged. He had
a recent or on-going criminal
experienced other hand-to-hand
offence. Reasonable grounds
a basis for detaining
exchanges that turned out to be
figures at the front-end of such
individuals.”
drug transactions.

an assessment, underlying the
officer’s reasonable suspicion
that the particular individual is implicated in the
criminal activity under investigation. The overall
reasonableness of the decision to detain, however,
must further be assessed against all of the
circumstances, most notably the extent to which the
interference with individual liberty is necessary to
perform the officer’s duty, the liberty interfered with,
and the nature and extent of that interference.” In
Mann, the Court also observed that “[t]he presence
of an individual in a so-called high crime area is
relevant only so far as it reflects his or her proximity
to a particular crime. The high crime nature of a
neighbourhood is not by itself a basis for detaining
individuals.”

In this case, the Alberta Court of Appeal found the
trial judge erred in applying the test for arbitrary
detention. “While the officer undoubtedly believed
he had grounds to detain the [accused], in our view
the circumstances do not satisfy the objective
requirement of reasonable cause for investigative
detention,” said the Court. The Court continued:
The trial judge noted that the events transpired
“in the middle of the night”. It was shortly after
midnight. Since not all law-abiding citizens are
home before midnight, it is difficult to see how

PAGE 9

The officer’s evidence about the location and
type of building where such events occurred was
too vague to contribute to reasonable grounds to
detain. He did not specify the size of the “area”
or the types or numbers of apartment blocks in it.
With such specificity, there may be other facts
when a detention could be justified. But on these
facts, such a general approach gives rise to a
grave risk of police interference with lawful
activities. As Iacobucci J. stated in Mann, the
high crime nature of a neighbourhood, alone, is
not enough. Even though some apartment
buildings in a neighbourhood may be known to
the police as havens of drug activity, that does
not mean that anyone who enters any apartment
building in an ill-defined area or neighbourhood
can objectively be suspected of criminal activity.
The Crown points to the hand-to-hand exchange
which, in the officer’s experience, was typical of
drug transactions. But in many innocent
circumstances one person may hand a small
object (such as a key or an earring) to another.
Without information about the individuals or the
building, the fact of a hand-to-hand exchange
shortly after midnight does not elevate the
circumstances to the objectively reasonable level
necessary to justify detention.

Volume 9 Issue 3 - May/June 2009

The trial judge appears to have placed some
weight on the fact that there was no conversation
as the exchange took place. But a quick innocent
exchange of, say, a key, might have been
preceded by an earlier telephone conversation; a
jilted boyfriend might hand over an apartment
key or a ring to his former partner without
conversation.
The trial judge also emphasized that the
exchange did not take place in a park or other
public place. She did not explain why an
exchange in an apartment lobby is more
suspicious than one in a park or other public
place.

techniques,” said the Court. “He initiated no
preliminary conversation with the [accused] to
inquire about what he was doing. Instead, he
immediately yelled at him to get out of the car. He
did not run a check on the vehicle licence plate to
see if its owner had a criminal record. He did not
call for back-up. Both the resulting hand-cuffing and
the search of the [accused’s] pants pocket (in which
there was a strong privacy interest) were serious
breaches of his Charter right under section 8.” In
excluding the evidence the Court further observed:
The public has a strong interest in the detection
of drug traffickers. On the other hand, it also has
a deep interest in the right of citizens to come
and go as they please, free from police
interference. Without the unlawful detention and
search, the evidence implicating the [accused]
would not have been discovered. On all the facts
of this case, it is our view that admission of the
evidence would bring the administration of
justice into disrepute. Therefore, the evidence
should be excluded. [para. 50]

Added to the dearth of objective factors is the
fact that, according to the officer, the [accused]
was co-operative when asked to step out of his
car. Since there was virtually no conversation
between the two leading up to the detention, the
[accused’s] demeanour could hardly have
aroused an objective suspicion that he was
engaged in crime. [paras. 38-44]

The accused’s s.9 rights were breached and, since
the investigative detention was unlawful, the search
and subsequent arrest that followed were also
unlawful. But had the Court found the detention
lawful, it we would not have interfered with the trial
judge’s conclusions about the handcuffing, pat-down
search that revealed a hard object, and the
examination of the hard object. The officer’s safety
concerns had been accepted by the trial judge,
which would have provided the necessary
justification for the pat down and examination of the
hard object.
As for the exclusion of evidence under s.24(2) of the
Charter, the evidence was inadmissible. The
evidence was real evidence (such as the cocaine and
cash) and would not affect trial fairness—it existed
independently of the violation. And there was
nothing to suggest a lack of good faith on the officer’s
part—the breaches stemmed from his subjective
view that he was entitled to detain and his safety
concerns for the handcuffing and search were
accepted. However, “the rapidity with which the
events unfolded demonstrate that he neglected to
take advantage of other available investigative

The accused’s appeal was allowed, the cash and
cocaine was excluded, and an acquittal was entered.
Complete case available at www.albertacourts.ab.ca

s.10(b) INVOLVES BOTH
INFORMATIONAL &
IMPLEMENTATIONAL DUTIES
R. v. Eashappie, 2009 SKCA 5
A police officer responded to a
call of a truck in a ditch with the
driver’s door wide open, the
vehicle running, and the accused
sitting in the driver’s seat. There
were also two other males sitting and wine
spilled in the truck. The accused’s speech was
slurred and his eyes were glassy. He was
arrested for care and control of a motor vehicle
while impaired by alcohol and placed in the
back of the police car. He was very upset, rude
and obnoxious. The officer advised the accused
of his right to retain and instruct counsel
without delay and he indicated he did not want

PAGE 10

Volume 9 Issue 3 - May/June 2009

to talk to a lawyer. The breath demand was read
from a card and the accused continued to be
rude and threatening in his remarks.
After waiting for a tow truck the officer
transported the accused to the police
detachment where his samples could be taken
by the breathalyzer technician. The arresting
officer again told the accused about his right to
counsel and again made the demand for a
breath sample. The accused indicated he wanted
to speak to a lawyer. He was placed in the
phone room and the breathalyzer technician
placed a call to Legal Aid duty counsel and then
transferred the call into the phone room.
Because the accused was very drunk the officer
had to pick up the phone, advise the lawyer why
the accused was there, and gave the phone to
him. After a few minutes the officer saw that the
receiver had fallen and went into the phone
room. The accused was asked if he was finished
speaking to the lawyer, but he only banged
around and spoke in his own language. When
the officer picked up the phone there was
nobody there so she hung up. The accused
subsequently refused to provide a sample and
was charged accordingly.
At trial in Saskatchewan Provincial Court the
accused testified he could not remember, among
other things, being read the demand nor
speaking with a lawyer on the telephone. The
trial judge concluded that the breath demand
was lawful (based on reasonable and probable
grounds) and was made at the scene of the
incident as well as repeated later at the
detachment. His right to counsel was given
immediately at the scene and the accused could
not be saved by his own intoxication in failing
to remember all or portions of the arrest, breath
demand, rights given and contact with a lawyer.
The trial judge found the police assisted the
accused in exercising his right to counsel and
gave him the opportunity to do so. He was
convicted of refusal.
The accused appealed his conviction to the
Saskatchewan Court of Appeal contending the
trial judge erred by failing to find there was a

violation of his s.10(b) Charter right to counsel.
Justice Hunter, delivering the unanimous
judgment, disagreed. In deciding whether the
accused was given the necessary information
about his right to counsel and a reasonable
opportunity to exercise that right, Justice Hunter
first described the obligations on the police:
[T]here is imposed on the authorities both
an informational and an implementation
duty when a person is arrested or
detained. [T]he informational duty
requires that the detainee be advised of
his right to retain and instruct counsel
without delay and of the existence and
ava i l a b i l i t y o f L e g a l A i d a n d d u t y
counsel. ... The implementation duty has
two aspects. First, when the detainee
indicates he wishes to exercise his right to
counsel, then he must be provided with a
reasonable opportunity to exercise the
right. Secondly, the state authorities are to
refrain from eliciting evidence from the
d e t a i n e e u n t i l h e h a s h a d s u ch a
reasonable opportunity (commonly
referred to as the Prosper warning).
[reference , para. 10]

In this case the officer informed the accused
about his right to counsel twice - first at the
scene and again at the detachment. And when
the accused indicated he wanted to exercise his
r i g h t t o c o u n s e l , t h e p o l i c e a s s i s t e d by
telephoning Legal Aid, spoke to duty counsel,
made sure counsel was on the line when the call
was transferred into the room, and stated the
reason for the arrest before handing the
telephone to the accused. Some three to five
minutes later, when the accused did not appear
to be talking on the telephone, the officer asked
him whether he was finished with the call.
When there was no affirmative response from
the accused, the officer checked to see whether
counsel was still on the line. When there was no
one at the other end of the connection, she hung
up the telephone. The accused had failed to
establish any breach of his s. 10(b) Charter right
and the appeal was dismissed.
Complete case available at www.canlii.org.

PAGE 11

Volume 9 Issue 3 - May/June 2009

RUNNING SUSPECT AT RIGHT
PLACE, RIGHT TIME:
DETENTION JUSTIFIED
Ward v. British Columbia, 2009 BCCA 23

At trial in British Columbia Supreme Court the judge
found the breach of the peace arrest was lawful
based on the plaintiff’s conduct in loudly protesting
his detention and drawing attention to himself. The
officer had articulable cause to detain the plaintiff for
investigative purposes and had reasonable grounds
to suspect that the plaintiff was connected to a
particular crime (an assault or attempted assault of
the Prime Minister) and believed that his detention
was necessary based on the police radio broadcasts,
the fact the plaintiff was running and appeared to be
avoiding the officer, and the plaintiff’s clothing more
or less matched the clothing described in the first
police radio broadcast. The initial detention was
therefore not a s.9 breach and handcuffing him did
not amount to the tort of assault or battery because
there were reasonable grounds to believe that the
plaintiff may attempt to escape or assault the officer.

Police heightened security in an area
where Canadian Prime Minister
Chretien was to participate in a
ceremony to mark the opening of a
gate at the entrance to the Chinatown
area of Vancouver. At some point they received
information that someone intended to throw a pie at
the prime minister, an event that had occurred
elsewhere a year earlier. This report was taken
seriously. A description was given over the police
radio (white male, 30 to 35 years, 5’ 9”, dark,
shorter hair, wearing a white golf shirt or t-shirt with
some red on it and jeans or
The trial judge, however,
shorts. Shortly thereafter,
found that police officers
a n o t h e r ra d i o b r o a d c a s t
“Dissimilarities between a suspect’s
b r e a ch e d t h e p l a i n t i f f ’s
reported that a male matching
physical description and the physical Charter rights by keeping him
the description was running
in the police lockup longer
appearance of the person being
southbound down a street. The
than was necessary (wrongful
plaintiff, a lawyer, was a white detained are not necessarily enough to
imprisonment), and by
male, mid 40s, grey or silver,
allay
reasonable
suspicion.
The
seizing his car. He was
collar length hair, wearing
investigating officer could not safely awarded $5,000 for the
jeans and a predominately
detention and $100 for the
grey t-shirt with some red on
conclude that the broadcast
seizure of the car. The judge
it. An officer saw the plaintiff
also found that corrections
description
was
completely
accurate.
running down the same street
officers breached the
and yelled for him to stop. The The dissimilarities between description
plaintiff’s Charter rights by
plaintiff was detained by
and appearance no doubt would have conducting an unreasonable
police for attempted assault on
been enough to eliminate most people strip search of his person and
the Prime Minister, back-up
another $5,000 was
was called, and he was
encountered by [the officer] after he awarded.
handcuffed. The plaintiff
received the broadcast. But [the
began to yell and create a
disturbance and he was plaintiff] was not most people. He was Th e p l a i n t i f f a p p e a l e d ,
among other findings, the
subsequently arrested for
in the right place at the right time, he trial judge’s ruling in holding
breach of the peace,
the arrest lawful. Although he
was running and he appeared to be
transported to jail, strip
agreed that the police could
searched, and held for more
taking avoiding action.”
stop him or delay him for a
than four hours before being
short time without breaching
released. The plaintiff then
his
right
under
s.9
of
the
Charter because they had
sued police and others for wrongful imprisonment
reasonable
grounds
or
articulable
cause to stop him
and other torts.
for investigative purposes, he contended that once

PAGE 12

Volume 9 Issue 3 - May/June 2009
the detaining officer very quickly knew that he did
not fit the description of the person sought in the
radio broadcast there was no reason to detain him
any further. Therefore, he submitted that the grounds
for detention quickly evaporated and the officer was
obliged to let him go. And since he was not released
at this point, he argued that he was protesting his
unlawful continuing detention and his actions could
not form the basis for the breach of the peace arrest.
Thus, in the plaintiff’s opinion the arrest was
unlawful.
Jutsice Lowe, writing the unanimous decision on this
issue for the British Columbia Court of Appeal,
concluded that the arrest was lawful. In his view, all
that was known to the officer as well as the plaintiff’s
conduct must be taken into account. In concluding
the trial judge did not err in finding that the plaintiff’s
continued detention was reasonable and justified,
Justice Lowe wrote:
[W]hile discussing the grounds for the arrest
of [the plaintiff], the trial judge observed that
although [the plaintiff’s] clothing was fairly
close to the description of the suspect’s
clothing, “his height, hair colour and length,
and age were all different...”. [The plaintiff]
contends that this finding should have led the
judge to conclude that there was no
reasonable basis for his continued detention
before he protested in such a manner that
would otherwise amount to a breach of the
peace.
I disagree. The argument ignores the second
factor taken into account by the judge in
reaching the above conclusion - [the plaintiff]
was running and appeared to be avoiding
interception. (The trial judge noted earlier in
his reasons that [the officer] yelled at [the
plaintiff] to stop but [the plaintiff] kept
running.) ... Dissimilarities between a
suspect’s physical description and the
physical appearance of the person being
detained are not necessarily enough to allay
reasonable suspicion. The investigating officer
could not safely conclude that the broadcast
description was completely accurate. The
dissimilarities between description and
appearance no doubt would have been
enough to eliminate most people encountered

by [the officer] after he received the
broadcast. But [the plaintiff] was not most
people. He was in the right place at the right
time, he was running and he appeared to be
taking avoiding action. [paras. 16-17]

Since the continued detention was unlawful, the
arrest for breach of the peace was valid. The
plaintiff’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Editor’s Note: Appeal of this case to the Supreme
Court of Canada has been granted.

Court Side:
“The poorest man may in his cottage
bid defiance to all the forces of the
crown. It may be frail — its roof may
shake — the wind may blow through it
— the storm may enter — the rain
may enter — but the King of England
cannot enter! — all his force dares not
cross the threshold of the ruined
tenement!” — William Pitt, British
Parliament, 1763

ACADEMIC EXCERPT:
“[The confessions rule] offers
some protection against two
dangers: that innocent people
will be convicted on the
strength of false confessions,
and that interrogated suspects will be
treated unfairly.” - Lisa Dufraimont, “The

Common Law Confessions Rule in the Charter Era: Current Law and
Future Directions” in Jamie Cameron & James Stribopoulos, eds., The
Charter and Criminal Justice: Twenty Five Years Later (Markham:
LexisNexis Canada Inc., 2008) 249 at 269.

PAGE 13

Volume 9 Issue 3 - May/June 2009

OTHER PROVINCIAL EMERGENCY VEHICLE SAFETY STATUTES

Alberta
s.115(2) Traffic Safety Act
A person shall not do any of
the following: ... (t) subject to
subsection (4), drive a vehicle on a highway at a
speed greater than 60 kilometres per hour, or the
maximum speed limit established or prescribed
for that highway ..., whichever is lower, if the
vehicle (iv) is travelling on the same side of the
highway as a stopped emergency vehicle ..., and (v)
is passing the stopped emergency vehicle ... when
its flashing lamps are operating.
.........
(4) Subsection (2)(t) does not apply if there are 2
or more traffic lanes for traffic moving in the same
direction as the vehicle and there is at least one
traffic lane between the driver’s vehicle and the
stopped emergency vehicle ... .

Nova Scotia
s.106B(1) Motor Vehicle Act
A person commits an
offence who exceeds
the speed limit ...
in an area in
proximity to an
emergency vehicle exhibiting
a flashing light by (a)
between one and fifteen
k i l o m e t r e s p e r h o u r,
inclusive; (b) between
sixteen and thirty
k i l o m e t r e s p e r h o u r,
inclusive; or (c) thirty-one
kilometres per hour or
more.
PAGE 14

Saskatchewan
s.204(1) Traffic Safety Act
No person
shall drive a
vehicle on a
highway at a
speed greater than 60
kilometres per hour when
p assing an emergenc y
vehicle that is stopped on
the highway with its
emergency lights in
operation.
(2) Subsection (1) does not
apply if: (a) the vehicle is
being driven on a divided
highway; and (b) the vehicle
is travelling on the opposite
roadway from the
emergency
vehicle.

Volume 9 Issue 3 - May/June 2009

Manitoba

Prince Edward Island

s.109.1(2) Highway Traffic Act
When approaching an
emergency vehicle with its
emergency beacon lighted that
is stopped on a highway, the
driver of a vehicle travelling on
the same side of the highway (a) shall slow down
and proceed with caution to ensure that his or
her vehicle does not collide with the emergency
vehicle or endanger any person outside of the
emergency vehicle; and (b) shall pass the
emergency vehicle only if it is safe to do so.
(3) In addition to complying with subsection (2),
the driver shall move into a traffic lane farther
from the emergency vehicle if (a) he or she is
travelling in the lane in which the emergency
vehicle is stopped, or a lane adjacent to it; (b)
there are two or more traffic lanes on the side of
the highway on which the emergency vehicle is
stopped; and (c) the movement can be made
safely.

Ontario
s.159.1(1) Highway Traffic Act

s.115.1(1) Highway Traffic Act
No person shall
drive a motor
vehicle on a
highway at a
speed greater
than half the posted speed limit
when approaching or passing an
emergency vehicle that is stopped
on the highway with its
emergency lights in operation.
(2) Where (a) the driver of a
motor vehicle approaches an
emergency vehicle that is stopped
on a highway with its emergency
lights in operation; (b) there are
two or more lanes of traffic on
the same side of the highway on
which the emergency vehicle is
stopped; and (c) the driver of the
motor vehicle is travelling in the
same lane that the emergency
vehicle is stopped in or in a lane
that is adjacent to the emergency
vehicle, the driver shall, in
addition to reducing speed as
required by subsection (1), move
into another lane if the
movement can be made in safety.

Upon approaching an emergency
vehicle with its lamp producing intermittent flashes of red
light or red and blue light that is stopped on a highway,
the driver of a vehicle travelling on the same side of the
highway shall slow down and proceed with caution, having due regard for traffic on and the
conditions of the highway and the weather, to ensure that the driver does not collide with the
emergency vehicle or endanger any person outside of the emergency vehicle.
(2) Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red
light that is stopped on a highway with two or more lanes of traffic on the same side of the
highway as the side on which the emergency vehicle is stopped, the driver of a vehicle travelling in
the same lane that the emergency vehicle is stopped in or in a lane that is adjacent to the emergency
vehicle, in addition to slowing down and proceeding with caution as required by subsection (1),
shall move into another lane if the movement can be made in safety.
(3) Nothing in subsection (1) or (2) prevents a driver from stopping his or her vehicle and not
passing the stopped emergency vehicle if stopping can be done in safety and is not otherwise
prohibited by law.
PAGE 15

Volume 9 Issue 3 - May/June 2009

POLICE CANNOT RELY ON
POST ARREST INFORMATION
TO SUPPORT REASONABLE
GROUNDS
R. v. Montgomery, 2009 BCCA 41
Police received a report that a past
member of the Hells Angels, together
with 15 associates, had entered a
cabaret. The police made inquiries
about a vehicle at the cabaret in
which some of these associates were passengers and
were advised by an officer from another police
department that the Delta company owning the
vehicle was known to be involved in criminal
activities, including the sale of drugs. The next day
police received a complaint from a citizen that
considerable traffic was coming and going to and
from a residence, which had recently changed
hands, and that the traffic included expensive
vehicles at “weird” times of night. A few days later
police stopped a vehicle driven by the accused that
was registered to the Delta company. During the
following week police made two observations
connecting the accused to the residence. The vehicle
driven by the accused was seen at the property and
the accused was seen attending the property.
Police then received a
couple of tips. An
anonymous one that a
new group of people,
calling themselves Easy
Money Production and
supposedly associated
with the Hells Angels,
had come to the area to
take over the drug trade.
A second confidential
tip reported that the
group gave out business
cards in the name of
Easy Money Production
with phone numbers to
call for the purpose of
arranging to buy drugs.

This tip also reported that the group carried
handguns and had no problem in using force to have
local dealers join them and to collect money. The
source said the group utilized a method by which a
three-person team, who were not allowed to fight but
were protected by enforcers with guns, would be
involved in each drug sale - one person carried the
drugs, a second carried the money and a third
completed the transaction. The source also provided
the cell phone number and pager number shown on
the business cards of Easy Money Production.

The lead investigator attended the residence and
observed, among other things, a red van parked
outside. Later in the afternoon the investigator called
the cell phone number he had been told was on the
business cards of Easy Money Production and told
the male who answered the cell phone that he
wanted to buy a big one - drug jargon for a gram of
cocaine. The male told the officer to meet at a nearby
McDonald’s restaurant in about seven minutes and
that he would be driving a red car or van. When the
investigator arrived at the McDonald’s restaurant
several minutes later, he saw a red van enter the
parking lot. He recognized the van as the vehicle he
had seen at the residence earlier in the day and
observed the occupants of the van turning their
heads as if they were looking for someone. When the
van left the parking lot, the investigator decided to
stop the van and used a loud hailer to tell the
occupants to stay in the vehicle.
When backup arrived 10
“ Section 9 of the Charter provides that a minutes later, the occupants of
person has the right not to be arbitrarily the van were ordered out and
arrested for possession for the
detained or imprisoned. The police must purpose of trafficking and read
have articulable cause or a reasonable
t h e i r C h a r t e r r i g h t s . Th e
suspicion (as opposed to a hunch) that a accused indicated that he
wanted to contact counsel and
person is connected to a crime before
named a specific lawyer. But he
was not permitted to contact
detaining the person for investigative
the lawyer at the place of his
purposes. There must be reasonable and arrest because the police had a
probable grounds, both subjectively and policy against arrested persons
objectively, that a person has committed a using cell phones at the scene
of an alleged crime.

crime before the police may make a
warrantless arrest of the person.”
PAGE 16

Police seized two half-gram
bags of cocaine from one of the

Volume 9 Issue 3 - May/June 2009

men, and $2,000 cash and a key to a safe from the
accused. The accused arrived at the police station
approximately one hour after the red van was
stopped. He was read his Charter rights again and
reiterated his wish to contact a specific lawyer. Three
hours later, he was given a phone for the purpose of
receiving a lawyer’s call but it was not the lawyer he
had specified. After another 20 minutes, a call was
placed on the accused’s behalf to the specified
lawyer and he spoke with that lawyer when the call
was returned a little over an hour later.
The police obtained and executed a warrant to
search the residence later on the same day. Among
the items seized were cocaine, a handgun, a police
scanner, and a tenancy agreement for the residence
showing the accused as the tenant, but no safe was
located. The phone at the residence rang while the
police were executing the search warrant and an
officer answered it. The caller told him that everyone
had been busted and that two houses had been
raided by the police. The officer questioned the caller
about the second house and later, back at the police
station, the accused admitted he lived at a second
property. The police then applied for a search
warrant for the second property and found four
ounces of cocaine and a safe containing a
bulletproof vest and a handgun there.
At trial in British Columbia Supreme Court the trial
judge held that the accused’s rights had not been
breached and the evidence was admissible. The
accused was convicted of possessing cocaine for the
purpose of trafficking, careless storage of a firearm,
and possessing a loaded restricted firearm without an
authorization.
The accused appealed his conviction to the British
Columbia Court of Appeal arguing, among other
grounds, his right under s.9 of the Charter was
breached because the police did not have reasonable
grounds for his arrest, that his right under s.10(b) was
violated when he was not given the right to consult
counsel without delay following his arrest, and that
he was not read his Charter rights again or given the
opportunity to speak with his lawyer again after there
was a change in the jeopardy he faced.

Arrest
As for the reasonable grounds issue, Justice Tysoe,
authoring the unanimous opinion, first noted the law
and its connection to arrest:
Section 9 of the Charter provides that a
person has the right not to be arbitrarily
detained or imprisoned. The police must
have articulable cause or a reasonable
suspicion (as opposed to a hunch) that a
person is connected to a crime before
detaining the person for investigative
purposes. There must be reasonable and
probable grounds, both subjectively and
objectively, that a person has committed a
crime before the police may make a
warrantless arrest of the person. [references
omitted, para. 24]

Here, “the police did not detain the [accused] for
investigative purposes; they initially detained him for
the purpose of arresting him and they continued his
detention following his arrest,” said Justice Tysoe.
“The issue is whether there were reasonable and
probable grounds for the arrest of the [accused] and,
if not, whether the detention was arbitrary.”
The investigator said he believed that he had grounds
to arrest the occupants of the red van for possessing a
controlled substance for the purpose of trafficking.
And the trial judge concluded the officer objectively
had reasonable grounds to arrest the accused
because of the following:
1.

an organization associated with the Hell's Angels
was openly endeavouring to take over the drug
trade in the area.

2.

in doing so, they possessed handguns and were
prepared to resort to violence.

3.

they operated as a team with different duties
relegated to different persons. One carried the
drugs and one carried the money. A third was
responsible for enforcement duties.

4.

at an earlier time the accused was found driving
a vehicle owned by a company associated with
criminal activity.

5.

members of the organization passed out business
cards in the name of “Easy Money Productions”
containing a phone number.

PAGE 17

Volume 9 Issue 3 - May/June 2009

6.

some members of the organization resided at the
first targeted residence, a residence which
contained illicit drugs and weapons. Activity
consistent with drug trafficking was observed.

7.

a red van was seen parked at that residence
shortly before the investigator made his Dial-ADope call.

were arrested. However, even without this
information the remaining factors known to the
officer objectively provided reasonable grounds that
the accused was participating in the offence of
trafficking in cocaine.

This was not a case where the police had not
observed or initiated a drug transaction and were
8.
that call was made to a number which the
investigator had reasonable and probable
relying on nothing more than the information
grounds to believe was the number on the
provided by the informant. Rather, in addition to the
business card handed out by this organization.
information provided by tips and observations made
by the police, the investigator had initiated a drug
9.
minutes after the drug buy was arranged for the
McDonald's restaurant, the same red van that
transaction by pretending to arrange for the purchase
had been seen at the residence arrived at the
of cocaine, and the vehicle in which the accused
agreed upon location.
was a passenger arrived at the place and within the
time frame arranged for the consummation of the
10.
consistent with the practice of those selling drugs
in this manner, the van moved quickly through
transaction. And even though the accused was a
the parking lot without stopping. The occupants
stranger to the investigator, there were reasonable
of the van were craning heads as they passed
grounds to believe he was participating in a joint
through the parking lot, consistent with such a
enterprise involving the sale of cocaine. “While there
practice in an effort to locate their client while
was a possibility that the [accused] had been a
avoiding drug rip-offs or police.
hitchhiker, it was rather remote in view of the fact
11.
the presence of four individuals in the vehicle
that he was sitting in the front passenger’s seat of a
that departed the residence minutes earlier was
vehicle containing two other passengers in the back
consistent with information that the organization
seat,” said Justice Tysoe. Since there were reasonable
delegated different duties to a number of people
grounds, both subjectively and objectively, for the
in a drug transaction.
accused’s arrest, his right
12.
consistent with that practice
under s.9 of the Charter
“Section 10(b) of the Charter provides was not violated.
the accused was found with
over $2,000 in three
that an arrested or detained person
bundles in his possession
Right to Counsel
has the right to retain and instruct
on his arrest and another
passenger was found with
counsel without delay and to be
The accused contended
cocaine in an amount
informed
of
that
right.
...
If
an
arrested
the police violated his s.
consistent with that ordered
by the investigator.
person indicates that he or she wishes 1 0 ( b ) C h a r t e r r i g h t
because they failed to
to exercise the right to counsel, the
The Appeal Court ruled the trial
allow him to call from a
judge improperly relied on police have the duties, except in urgent cell phone at the scene of
evidence discovered after the
his arrest and that there
or dangerous circumstances, to
accused’s arrest (see underlining
was an unacceptable
provide the person with a reasonable delay of three hours and
above) in concluding that
objective grounds existed. He
opportunity to exercise the right, and twenty minutes between
should not have relied on the
the time he was brought to
to refrain from eliciting evidence from the police station and the
discovery of drugs and weapons
in the residence after it was
time a call was placed to
the person until he or she has had a
searched or the drugs and cash
reasonable opportunity to retain and t h e l a w y e r h e h a d
that were found on the
specified. In rejecting this
instruct counsel.”
occupants of the van after they
ground of appeal Justice

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Volume 9 Issue 3 - May/June 2009

Tysoe described the right
to counsel under s.10(b)
as follows:
Section 10(b) of the
Charter provides that
an arrested or
detained person has
the right to retain and
instruct counsel
without delay and to
be informed of that
right. ...

“The police considered the arrest to be
one of high risk. The [accused] was
believed to be associated with an
organization that used violence. It would
have been difficult for the police to ensure
that the call was not used for an improper
purpose and to provide the [accused]
with privacy at the scene of his arrest
while ensuring that he was secure.”

If an arrested person
indicates that he or she wishes to exercise the
right to counsel, the police have the duties,
except in urgent or dangerous circumstances,
to provide the person with a reasonable
opportunity to exercise the right, and to
refrain from eliciting evidence from the
person until he or she has had a reasonable
opportunity to retain and instruct counsel.
[references omitted, paras. 32-33]

In agreeing with the trial judge that it was neither
reasonable nor practical to allow the accused to use
a cell phone at the scene of his arrest, Justice Tysoe
stated:

information from him before
he spoke with his lawyer.

A s f o r t h e a c c u s e d ’s
contention that he should
have been re-advised of his
Charter rights when the
investigation changed from
one involving a “dial-a-dope”
operation to one involving a
“stash” or “stockpile” of
cocaine, it was rejected.
“There was not a change in
jeopardy that resulted in a
violation of s. 10(b),” said Justice Tysoe. “The
purpose of the search warrant was to search the
[second] residence for cocaine and implements
related to the intended charge of trafficking in
cocaine. There was no change in the intended charge
prior to the execution of the search warrant.
Although the police expected to find a greater
amount of cocaine at the [second] residence than
had been seized from one of the occupants of the
red van at the time of the arrest, the accused was not
exposed to a materially different sentence as a result
of the additional cocaine being located.” The
accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

The police considered the arrest to be one of
high risk. The [accused] was believed to be
associated with an organization that used
violence. It would have been difficult for the
police to ensure that the call was not used for
an improper purpose and to provide the
[accused] with privacy at the scene of his
arrest while ensuring that he was secure.

Court Side:
“Expecting police officers to ask
‘clarifying questions,’ when it is
unclear whether a suspect is
competent to waive the right to
counsel, should become a routine
aspect of sound police practice in
Canada.” A Review of Brydges Duty Counsel

The police station had only one private phone
for conversations with lawyers, and the police
had to deal with the three other men arrested
with the [accused], as well as an unrelated
matter. The trial judge made the finding of fact
that the [accused] was provided access to
counsel as soon as was reasonably possible in
all of the circumstances. I am not persuaded
that the judge made a palpable error in
making this finding. [paras. 35-36]

Services in Canada, s. 8.7 Education & Training,

Justice Tysoe also noted the police neither attempted
to elicit evidence from the accused nor received any

Department of Justice Canada.

PAGE 19

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Volume 9 Issue 3 - May/June 2009

PAGE 21

Volume 9 Issue 3 - May/June 2009

UNDERTAKING CONDITIONS
EFFECTIVE DESPITE PTA
INVALIDATION
R. v. Oliveira, 2009 ONCA 219

concluded that the promise to appear and the
undertaking were so closely tied that an action
rendering the promise to appear a nullity must render
the undertaking a nullity. Justice Doherty, authoring
the unanimous appeal court decision described the
current process for police release as follows:

The a c cu s e d wa s a r r e s t e d f or
assaulting a police officer and failing
to provide a roadside breath sample.
He was released on a promise to
appear requiring him to attend court
at a later date and he also entered into an
undertaking which included a condition that he
abstain from consuming alcohol. About a month
later, just three days before the accused’s first court
appearance, the information alleging the offences
was sworn and the promise to appear was confirmed.
About two weeks later a police officer stopped the
accused as he was walking down the street and,
believing he had been drinking, arrested him for
breaching the no consume condition of his
undertaking. The next day he again appeared in court
on the assault and refusal charges.
At his breach of undertaking trial in the Ontario
Court of Justice the trial judge accepted that the
information containing the initial charges of assault
and refusing to provide a breath sample had not
been laid “as soon as practicable” as required by s.
505 of the Criminal Code, rendering the promise to
appear of no force and effect. The Crown submitted,
however, that the undertaking remained valid as long
as the charges on which the accused had been
released were before the court. The trial judge
concluded the promise to appear and the
undertaking were in essence a single release
document - one setting out the attendance
requirements and the other setting out the conditions
or restrictions - and that the undertaking existed only
as long as the promise to appear remained valid.
Since the promise to appear was rendered a nullity
the undertaking related to that promise to appear was
also a nullity. The accused was acquitted on the
breach charge. A Crown appeal to the Ontario
Superior Court of Justice was dismissed.
The Crown then appealed to the Ontario Court of
Appeal arguing the lower courts improperly

PAGE 22

Part XVI of the Criminal Code sets out a
detailed procedural scheme governing the
laying of criminal charges and the arrest,
detention and release of persons charged
with criminal offences. Among other
purposes, Part XVI seeks to minimize, to the
extent consistent with the public interest, the
pre-trial incarceration of persons charged
with criminal offences. To achieve that goal,
several provisions of Part XVI permit a peace
officer to release an individual, thereby
avoiding the need to hold that person in
custody pending appearance before a
judicial officer: see Criminal Code, ss. 496,
498, 499, 503(2).
A peace officer who arrests an accused may
release that person on a promise to appear.
That document compels the named person to
appear in court on a specified date in answer
to the charge set out in the promise to
appear: Criminal Code, s. 501. Failure to
appear as required is a criminal offence:
Criminal Code, s. 145(5).
If an accused is released on a promise to
appear, two steps are necessary to bring the
criminal charges before the court. First, an
information alleging the offence(s) must be
laid before a justice “as soon as practicable”
and “in any event before the time stated in
the ... promise to appear”: Criminal Code, s.
505. Failure to lay the information “as soon
as practicable” renders the promise to appear
ineffective and provides a defence to a
charge of failure to appear as directed by the
promise to appear.
The second step necessary to move the
criminal charges forward also takes place
when the information is laid before the
justice of the peace. The justice of the peace
must decide whether to confirm or cancel
the promise to appear. If he or she cancels

Volume 9 Issue 3 - May/June 2009

the promise to appear, it is of no force and
effect, the accused is not required to appear
at the time and place set out in the promise
to appear, and failure to appear is not a
criminal offence. A justice of the peace may
cancel a promise to appear for various
reasons. For example, the justice of the
peace may conclude that the criminal
charge(s) should not have been brought
against the accused, or that some other
process should be used to compel the
attendance of the accused: Criminal Code, s.
508.

integral part of the “police bail” provisions in
Part XVI of the Criminal Code. I cannot,
however, agree with the trial judge that the
two documents are “in essence a single
release document”. The documents serve two
very different purposes.
The purpose of the promise to appear is to
secure the initial attendance of the accused
in court. Subsequent court attendances are
pursuant to court orders. A defect in the
promise to appear, or the process required to
confirm a promise to appear, will not affect
the validity of the information charging the
offences referred to in the promise to appear.
Nor will those defects affect the Crown’s
ability to proceed on the charges referred to
in the promise to appear, or the ultimate
disposition of those charges: see Criminal
Code, ss. 485(2), (3). In short, after the first
appearance of an accused, the promise to
appear is largely irrelevant to the criminal
process.

Although the promise to appear and other
similar mechanisms for release by the police
introduced into the Criminal Code by the Bail
Reform Act ... gave the police broad powers
of release, those powers were deficient in
that they did not permit the police to impose
conditions as a term of the release. Unless
the police were satisfied that the arrested
person should be released without any
conditions, they had to detain that person
pending appearance before a justice of the
peace. The justice of the peace could then
release that individual on the appropriate
bail conditions. This shortcoming was
eventually cured by amendments that gave a
peace officer who released the person on a
promise to appear, the power to require that
person to enter into an undertaking before
being released: Criminal Code, s. 503(2).
That undertaking could contain one or more
of the conditions set out in s. 503(2.1) of the
Criminal Code and is aptly described as
“police bail”. [references omitted, paras. 2-6]

When an accused is charged with the crime of
breaching an undertaking, the Crown must prove
beyond a reasonable doubt that the undertaking was
in force on the date of the alleged breach - an
essential component of the actus reus. So the issue of
whether the undertaking was in force on the date of
the alleged breach was critical. Justice Doherty
described the connection between the PTA and the
undertaking as follows:
The promise to appear and the undertaking
given to a peace officer are closely related
documents. Taken together, they are an

PAGE 23

The undertaking serves a very different
purpose. It constitutes a promise by the
accused to comply with certain conditions in
exchange for his release from custody
pending the resolution of the charges. The
conditions in the undertaking are put in
place to protect the public by providing
some measure of control over an accused’s
conduct while the criminal proceedings are
e x t a n t . S u b j e c t t o va r i a t i o n o f t h e
undertaking through the review procedures
set out in the Criminal Code (see ss. 503(2.2),
(2.3)), the terms of the undertaking, like the
terms of most forms of judicial bail, remain
in full force and effect until the accused is
tried and, if convicted, sentenced: Criminal
Code, s. 523(1)(b).
The purpose of an undertaking, and the
rationale underlying the peace officer’s
power to release on an undertaking, link that
document, not to the initial attendance in
court of the accused, but to the criminal
charges on which the accused was released
as those charges progress to disposition.
Viewed purposively, the life of the
undertaking should be tied to the life of the
charges giving rise to the undertaking. The

Volume 9 Issue 3 - May/June 2009

language of s. 523(1)(b) makes that link.
[paras. 29-32]

The language of s. 145(5) makes the delayed
enforceability of the promise to appear clear.
The offence created by that section provides
that the promise to appear must have been
“confirmed by a justice under section 508”
before failure to appear as required by that
document will constitute an offence.

Here, the charges on which the accused was
released on his undertaking were before the court on
the date of the alleged breach of his undertaking. The
court had both jurisdiction over the accused as well
as the offences for which he had been released on
his undertaking. The allegations were making their
way through court and the justification for the
undertaking - to secure the accused’s good behaviour
pending the outcome of the charges against him remained as valid the day he was allegedly in breach
as the day he was released. And the Appeal Court
also rejected the accused’s submission that if the
undertaking survived after the promise to appear was
rendered invalid an accused could remain subject to
an undertaking issued by a peace officer for an
indefinite period of time when there were no longer
any charges against that accused. “The undertaking
cannot survive if the charges giving rise to the
undertaking are no longer before the court,” said
Justice Doherty. He continued:
Not only does a purposive examination of
the promise to appear and the undertaking
tell me that the two documents should not
share a common lifespan, the relevant
provisions of the Criminal Code support the
same conclusion. The promise to appear is
ineffective unless an information is laid in
compliance with s. 505 and the promise to
appear is confirmed by a justice of the peace
pursuant to s. 508. These requirements reflect
the policy that no person should be
compelled to attend court in answer to a
criminal charge unless the judicial officer has
reviewed that charge and determined that the
accused should be required to come to court.
The legal enforceability of the promise to
appear depends on placing an information
before a justice of the peace in compliance
with s. 505 and the confirmation of the
appearance notice in compliance with s.
508. The accused’s legal obligation to attend
court in compliance with the promise to
appear, therefore, does not crystallize until
some time between the date on which the
accused is released on the promise to appear,
and the date on which he is actually required
to appear.

In contrast to the delayed enforceability of
the promise to appear, an undertaking issued
by a peace officer is effective immediately.
The undertaking is in full force and effect
even before the information relating to the
charges in the undertaking is laid pursuant to
s. 505 and the appearance notice is
confirmed pursuant to s. 508. Noncompliance with an undertaking at any time
after it is issued is a criminal offence.
The immediate enforceability of the
undertaking is clear from the language of s.
145(5.1), the section which creates the
offence of non-compliance with an
undertaking issued by a police officer. ...
Not only do the Criminal Code provisions
provide that the undertaking is effective and
binding on an accused before a promise to
appear is validated, but nothing in the
relevant provisions of the Criminal Code ties
the enforceability of the undertaking to the
validity of the promise to appear. To the
contrary, s. 523(1) expressly ties the ongoing
enforceability of the undertaking to the
continued prosecution of the offence, or a
related offence, on which the accused was
released on the undertaking. [references
omitted, paras. 35-39]

The invalidity of the promise to appear caused by the
failure to lay the information “as soon as practicable”
did not render the undertaking void or otherwise
ineffective and its life was tied to the existence of the
ongoing criminal proceedings in respect of the
charges that gave rise to the undertaking. The
Crown’s appeal was allowed, the accused’s acquittals
were set aside, and convictions were substituted.
Complete case available at www.ontariocourts.on.ca

PAGE 24

Volume 9 Issue 3 - May/June 2009

BORDER ASD TESTS TREATED
NO DIFFERENTLY THAN
ROADSIDE DEMANDS
R. v. Bilawey, 2009 SKCA 9
The accused was returning from a
trip to Eastern Canada via the United
States when he arrived at a port of
entry in Saskatchewan. He admitted
to the Border Services Officer (BSO)
at the primary inspection window that he had
alcohol in his possession and that he had been in the
United States for less than 48 hours. He was asked to
park his vehicle and go inside to pay duties and taxes
on the alcohol. The BSO working the secondary
inspection area smelled the odour of an alcoholic
beverage when the accused presented himself at the
counter. The accused’s speech and movement were
affected somewhat so the accused was requested to
go to an interview room with the intention of making
further inquiries about his alcohol consumption and
request that he provide a sample of his breath for
analysis.
The BSO made an approved screening device (ASD)
demand, including an admonition that refusal or
failure to comply with the demand was a criminal
offence and rendered a person liable to criminal
charges. The accused said that he understood the
demand and he was instructed to provide a smooth,
steady stream of air into the device and to continue
blowing until he was told to stop. After five
unsuitable attempts to provide a sample, the accused
was arrested for refusing to supply a sample of his
breath and advised of his right to contact legal
counsel. He was offered and accepted an
opportunity to call Legal Aid counsel. After speaking
to the lawyer he asked for another opportunity to
provide a suitable sample but was told he had been
given five opportunities already and that his failure to
provide a suitable sample constituted a refusal.

person for the purpose of complying forthwith to an
ASD demand did not engage the right to counsel.
This limitation was justified under s.1 of the Charter
given the important role of the screening device in
society’s fight against impaired drivers. The accused
was convicted of refusing to provide a breath sample
under s.254(2) of the Criminal Code. An appeal to
the Saskatchewan Court of Queen’s Bench was
dismissed. The appeal judge found the case law
clearly established that ASD demands made at ports
of entry, where the test could be administered
without delay, would not be treated differently from
roadside demands simply because telephones were
readily available at border offices.
The accused then appealed to the Saskatchewan
Court of Appeal which had to answer the question of
whether an individual must be afforded a reasonable
opportunity to contact legal counsel, as
contemplated by s.10(b) of the Charter, when a
demand is made under s. 254(2) to an individual at a
border crossing and a telephone is immediately at
hand. Justice Wilkinson, delivering the judgment of
the Appeal Court, agreed with the Queen’s Bench
and rejected the accused’s argument that a detainee
should reasonably be able to extend the time for
complying with the demand in order to consult with
legal counsel. Instead, the Court concluded that the
exclusion of the right to counsel was a reasonable
limit under s.1 of the Charter as demonstrably
justified in a free and democratic society. In this case
there was no delay in making the demand or
administering the tests and since the test was to be
administered forthwith, the proximity of a phone did
not impact the validity of the demand.
Complete case available at www.canlii.org

BY THE BOOK:

At trial in Saskatchewan Provincial Court the trial
judge found the accused did not have a right to
contact a lawyer before blowing into the approved
screening device. He held that it was implicit in the
legislative provisions that the roadside detention of a

PAGE 25

s.1 Charter “The [Charter] guarantees
the rights and freedoms set out in it
subject only to such reasonable limits
prescribed by law as can be
demonstrably justified in a free and
democratic society.”

Volume 9 Issue 3 - May/June 2009

BLOOD SAMPLE READINGS
OTHERWISE DISCOVERABLE BY BREATH SAMPLE
R. v. Farrell, 2009 NSCA 3

physician if she was able to provide a breath sample.
The judge held the blood sample evidence had been
obtained as a result of an unconstitutional search and
seizure under s.8 of the Charter and excluded the
certificate of analysis under s.24(2). She was
acquitted of impaired driving and driving over 80mg
%.

The accused was involved in a single
vehicle motor vehicle accident
The Crown’s appeal to the Nova Scotia Supreme
around 10:00 am when her vehicle
Court was successful. The appeal judge determined
was overturned in a ditch. As the fire
that the trial judge focussed on the officer’s opinion
department removed her from the
at the accident scene, rather than whether or not the
vehicle a police officer arrived at the scene. The
officer had a proper basis to make the demand at the
accused’s nephew told the officer that his aunt had a
time the demand was given at the hospital. The
history of drinking and driving. She was heard
accused’s complaint of injury was to her back and
screaming that she was in pain as
hip, which meant she could not
she was strapped to a backboard.
leave the hospital. When asked
“It is well established that s.
An ambulance attendant
about treatment, the doctor said
gestured in a manner that the
254(3) requires that the police
that it was going to be a while.
officer interpreted to mean that
The appeal judge was satisfied
officer subjectively have an
the accused had been drinking.
that it was appropriate for the
honest belief that the suspect
The officer approached the
officer to give the blood demand
accused and detected an odour
has committed the offence and - he had reasonable grounds that
of alcohol. He accompanied her
the accused could not give a
objectively there must exist
in the ambulance as she was
breath test because she was stuck
transported to hospital and he
reasonable grounds for this
in the hospital. A new trial was
formed the opinion that there
belief...”
ordered.
were sufficient grounds to
demand that she supply a sample
The accused then appealed to the Nova Scotia Court
of her breath or blood. He was also of the opinion
of Appeal arguing the appeal judge erred by
that she would be at the hospital for some time while
substituting his view of the evidence for that of the
she was being examined and treated by medical
trial judge and in concluding that the trial judge did
staff. The officer read a demand for a blood sample
not consider whether reasonable and probable
and advised the accused of her right to counsel,
grounds for a blood demand versus a breath demand
which she decided not to exercise. The emergency
existed at the time of the actual demand. The Crown
room physician subsequently took a sample of blood
submitted that, if the appeal judge erred, the trial
which indicated a reading of 247 mg%.
judge erred in the s.24(2) analysis in excluding
At trial in Nova Scotia Provincial Court the judge
concluded that although the officer had the
necessary grounds to demand a breath sample, he
did not have reasonable and probable grounds to
believe that the accused’s physical condition made it
impracticable to obtain a sample of her breath. He
found that the officer formed the intention to make
the blood demand shortly after arriving at the
accident scene and before he had any clear
indication of the extent of the accused’s injuries. He
also found the officer did not ask the attending

evidence of the analysis of the accused’s blood.

Reasonable Grounds
Justice Roscoe, writing the opinion for the Nova
Scotia Court of Appeal first examined the law
concerning the demand for blood samples under ss.
254(3) and (4) of the Criminal Code:

PAGE 26

It is well established that s. 254(3) requires
that the police officer subjectively have an
honest belief that the suspect has committed

Volume 9 Issue 3 - May/June 2009

the offence and objectively
there must exist reasonable
grounds for this belief. ...
In addition to having
reasonable and probable
grounds to believe that an
offence has been committed,
prior to making a demand
for a blood sample, the
police officer must also have
reasonable and probable
grounds to believe that
because of the person’s
physical condition, there is
either an incapacity to
provide a sample of breath,
or it would be impracticable
to obtain a breath sample. It
is common ground on this
appeal that the belief of the
police officer that the person
is incapable or it is
impractical to obtain a
breath sample must be held
at the time the demand for
blood is given. [reference
omitted, paras. 11-12]

“ In addition to having
reasonable and probable
grounds to believe that an
offence has been committed,
prior to making a demand for
a blood sample, the police
officer must also have
reasonable and probable
grounds to believe that
because of the person’s
physical condition, there is
either an incapacity to
provide a sample of breath,
or it would be impracticable
to obtain a breath sample. ...
[T]he belief of the police
officer that the person is
incapable or it is impractical
to obtain a breath sample
must be held at the time the
demand for blood is given.”

In this case, Justice Roscoe was
of the view that the appeal
judge erred by substituting his
view of the evidence for that of
the trial judge. The trial judge did consider the
officer’s belief at the time of the accident, but he also
went on to consider the situation at the hospital. He
quoted the relevant section of the Criminal Code and
recognized that the timing of the police officer’s
belief was important. The trial judge found that the
officer did not consider giving a breath demand at
any time and, although the trial judge concluded that
the officer had made up his mind at the accident
scene, it is clear that he also considered the officer’s
thinking at the time he made the demand. Justice
Roscoe held the trial judge’s findings were
reasonable and supported by the evidence. He said:

finding that the officer never
considered the possibility of [the
accused] providing a sample of
breath is reasonable and consistent
with the evidence. As well, the
evidence supports the finding that
[the officer] did not ask the doctor
if [the accused] could provide a
breath sample, he only asked her if
she was capable of providing a
blood sample. Nor did he ask [the
accused] if she thought she was
capable of providing a breath
sample. That [the officer] made up
his mind at the scene of the
accident to seek a blood sample as
soon as possible after arriving at
the hospital and did not reassess
the situation at the hospital is also
a reasonable inference to draw
from the evidence. Furthermore,
the trial judge’s finding that the
officer’s prime consideration was
obtaining evidence before two
hours passed, was also reasonable.
[para. 20]

Admissibility

Justice Roscoe reversed the trial
judge’s ruling in excluding the
evidence. Although the blood sample
was conscriptive evidence, which will
generally render a trial unfair, the evidence was
discoverable by an alternative means - a breath
sample. The officer had the legal justification to
demand a breath sample. “It is a rational inference
from the evidence that if [the accused] was prepared
to consent to giving a blood sample, that she would
have consented to providing a breath sample if she
were capable of doing so,” said Justice Roscoe.
“Providing a breath sample is less intrusive than
allowing a sample of blood to be drawn.” He
continued:

It is clear that the trial judge considered both
the officer’s thinking at the time of the
accident and again at the hospital when the
demand for blood samples was made. The

PAGE 27

In this case, since the [accused] agreed to
provide a blood sample it is logical to
assume that if she had been capable of
providing a breath sample, she would have
consented to that procedure. If [the officer]
had asked the doctor if [the accused] was

Volume 9 Issue 3 - May/June 2009

capable of providing a breath sample and the
answer was “yes”, presumably he would
have made arrangements for a breath sample
to be taken. If the answer was “no” she was
not capable because of her medical
condition, the blood sample would have
been legally provided in accordance with the
legislation. In either case, if it was not
practicable to obtain a sample of breath, the
pre-conditions for obtaining a blood sample
would have been met. I agree ... that the
evidence in question was probably
discoverable in any event and therefore its
admission would not offend against trial
fairness. [para. 3]

BY THE BOOK:
Blood Demand - Criminal Code

The breach also fell somewhere between a serious
one and a technical one. “Here the police officer did
have reasonable and probable grounds for making a
demand for a breath sample, there was no finding of
bad faith on the part of police officer, and the
accused consented to providing the blood sample,”
said Justice Roscoe. “The breach seems to have been
founded in the officers mistaken belief in the time
limit for obtaining a sample. These factors, taken
together, tend to weigh in favour of admissibility of
the evidence.” The Nova Scotia Court of Appeal
concluded the admission of the accused’s blood
analysis would not bring the administration of justice
into disrepute and should have been admitted. The
accused’s appeal was dismissed and the matter was
remitted back to provincial court for trial
continuation with the blood analysis being
admissible.
Complete case available at www.canlii.org

ACADEMIC EXCERPT:
“Although the spouse beater
m ay h ave n o l e g i t i m a t e
privacy claim in relation to the
fact he beats his spouse, he
can nonetheless shelter himself behind his
general right to privacy in his home.” Croft Michaelson, “The Limits of Privacy: Some Reflections

on Section 8 of the Charter” in jamie Cameron & James Stribopoulos,
eds., The Charter and Criminal Justice : Twenty Five Years Later
(Markham: LexisNexis Canada Inc., 2008) 87 at 102.

s.254(3) Where a peace officer believes
on reasonable and probable grounds
that a person is committing, or at any
time within the preceding three hours
has committed, as a result of the
consumption of alcohol, an offence
under section 253, the peace officer may, by demand
made to that person forthwith or as soon as
practicable, require that person to provide then or as
soon thereafter as is practicable
(a) such samples of the person's breath as in the
opinion of a qualified technician, or
(b) where the peace officer has reasonable and
probable grounds to believe that, by reason of any
physical condition of the person,
(i) the person may be incapable of providing a
sample of his breath, or
(ii) it would be impracticable to obtain a sample of
his breath, such samples of the person's blood,
under the conditions referred to in subsection (4),
as in the opinion of the qualified medical
practitioner or qualified technician taking the
samples are necessary to enable proper analysis to
be made in order to determine the concentration, if
any, of alcohol in the person's blood, and to
accompany the peace officer for the purpose of
enabling such samples to be taken.
s.254(4) Samples of blood may only be taken from a
person pursuant to a demand made by a peace officer
under subsection (3) if the samples are taken by or
under the direction of a qualified medical practitioner
and the qualified medical practitioner is satisfied that
the taking of those samples would not endanger the
life or health of the person.

PAGE 28

Volume 9 Issue 3 - May/June 2009

SEARCH INCIDENT TO ARREST
DOES NOT REQUIRE WARRANT
R. v. Nolet & Vatsis, 2009 SKCA 8
A Saskatchewan police officer
randomly stopped a commercial
transport tractor-trailer unit travelling
eastbound along the Trans-Canada
Highway near a weigh scale at 11:17
pm. The tractor-trailer unit had Quebec license plates
and was being driven by the accused Vatsis while
Nolet (a co-driver) and Blain (along for the ride but
now deceased) were passengers at the time of the
stop. The purpose of the stop was to conduct a safety
check on the driver (sobriety and alertness) and the
vehicle as well as inspect documents, including
driver’s license, registration, load papers, log books,
and safety inspection stickers. On approach to the
vehicle the officer noticed that the IFTA fuel tax sticker
had expired, a provincial offence. Vatsis was asked for
his driver’s license, log book (which had not been
filled out properly) and vehicle registration. When
asked for a bill of lading and manifest for the load,
Nolet advised they were travelling empty but
provided bills of lading for the westbound portion of
the trip showing deliveries which were not logged in
the logbook. The vehicle was also not pro-rated for
commercial driving in Saskatchewan, an offence
without a permit. This would have entitled the officer
to immediately prohibit the vehicle from further travel
within the province.
The officer then inspected the trailer by looking
through the open doors. Concerns arose that there
may have been some alterations to the trailer. It
“looked odd; it didn’t appear right,” he would later
testify. The officer inspected the contents of the tractor
portion of the unit and any documents (to see if there
were multiple log books - in particular older ones) and
to ensure that there was no cargo in the tractor area.
The officer noticed some travel bags among some
clothes on the floor and he pressed on a small duffel
bag. He heard the sound of crackling paper and felt
what he thought was paper in the bag. He opened the

duffel bag expecting to find documents but instead
discovered a bag full of money (later determined to be
$115,000). He immediately arrested all three
occupants for possessing proceeds of crime and gave
them the police warning and advised them of their
right to counsel. Back-up was called and a closer
inspection of the trailer confirmed that modifications
had been done to the trailer - the interior length of the
trailer was about a metre less than the exterior length
suggesting a false compartment at the front of the
trailer. The vehicle was moved to the police
detachment and 15 boxes and two duffel bags
containing 392 pounds of marijuana were discovered
after panelling was removed to expose the hidden
compartment. Also found in and around the cab of
the tractor unit were various papers, receipts, and
commercial documents, including a complete change
of decals and stickers, receipts and tolls, log books for
other drivers, and a dispatcher report. The accuseds
were charged with trafficking in marihuana,
possessing for the purposes of trafficking, and
possessing the proceeds of crime.
At trial in the Saskatchewan Court of Queen’s Bench
the trial judge found the initial vehicle stop and
inspection was valid for regulatory purposes, but
when the officer looked inside the trailer and formed
the suspicion or “hunch” that alterations had been
made, the focus or “predominant purpose” of his
inquiry shifted from a regulatory inspection to a
criminal investigation thereby engaging Charter
protections. The powers of regulatory inspection under
the Motor Carrier Act and the Highways and
Transportation Act,1997 permit examination,
inspection, and searches of vehicles for violations
related to commercial transport - a highly regulated
industry. The initial detention in stopping the vehicle
for regulatory reasons and the initial inspection of the
empty trailer did not breach the Charter, but the two
warrantless searches that followed - the search of the
duffel bag containing the money and the post-arrest
search in measuring the trailer at the roadside - were
unreasonable because the officer did not have
reasonable grounds.

PAGE 29

Volume 9 Issue 3 - May/June 2009

As for the arrest it was unlawful. Although the
discovery of the money in the duffel bag heightened
the officer’s suspicion, it did not establish reasonable
grounds for arrest, thus violating s.9 of the Charter.
The trial judge ruled the unusual circumstances of
three drivers, a vehicle not registered for commercial
use in Saskatchewan, and an empty load, were more
“neutral” than indicative of illegal activity. And even if
the arrest was lawful she would have held the two
searches of the trailer subsequent to the arrest - the
roadside measurement and the detachment search breached the accuseds privacy rights.

purpose” searches do not violate s.8 of the Charter so
long as the regulatory search was itself reasonable and
met Charter scrutiny. In other words, a lawful search
conducted within the scope of statutory or regulatory
powers does not become invalid simply because the
officer formed a suspicion of criminal wrongdoing.
And the Crown submitted, among other things, that
the trial judge did not consider the officer’s suspicion
about the false compartment in her assessment of
whether there were reasonable grounds for arrest in
the s.9 analysis.

Privacy Expectation

The roadside search required a warrant as no exigent
Justice Wilkinson, writing the opinion for the majority,
circumstances or safety concerns existed and the
first noted that a person challenging a search must
detachment search occurred two hours after the arrest
prove they had a reasonable expectation of privacy in
and there were no exigent circumstances - the
t h e c i rc u m s t a n c e s . Th i s a
accuseds were in custody
precondition before there is an
and the vehicle was secured
“An individual who accuses the
assessment of whether the search
with a padlock. Finding
State of invasion of privacy bears was unreasonable. She described it
police breached s.8
the onus of proving that a
this way:
(unreasonable search and
reasonable expectation of privacy An individual who accuses the
seizure) and s.9 (arbitrary
detention) of the Charter, the
exists. The Crown, in the
State of invasion of privacy bears
$115,000 in cash packaged
the onus of proving that a
circumstances of a warrantless
in distinctive bundles and
search, bears the onus of proving reasonable expectation of privacy
392 pounds of marihuana
exists. The Crown, in the
were excluded as evidence the search was reasonable, except circumstances of a warrantless
by the trial judge. The trial
where the search is incidental to a search, bears the onus of proving
judge was of the opinion
lawful arrest. Search incidental to the search was reasonable,
that the admission of it
except where the search is
arrest is an exception to the rule, incidental to a lawful arrest.
would
bring
the
administration of justice into
and the individual therefore bears Search incidental to arrest is an
disrepute and the accuseds
exception to the rule, and the
the burden of establishing the
were acquitted of all
individual therefore bears the
search incident to arrest was
charges.
burden of establishing the search

unreasonable..”

The Crown appealed to the
Saskatchewan Court of
Appeal arguing the trial judge erred in ruling the
accuseds Charter rights had been violated. Under s.8,
the Crown submitted that the accuseds failed to
demonstrate they had any expectation of privacy with
respect to the duffle bag or the commercial vehicle,
and therefore had no standing to bring a s.8 Charter
application. As well, it was contended that “dual

incident to arrest was
unreasonable. [para. 37]

In meeting the onus, the person must do more than
simply assert that a privacy interest exists. There is no
automatic right to standing and a reasonable privacy
interest must be established in the circumstances.
“The curtain of privacy may be as solid as a screen or
as sheer as a veil,” said Justice Wilkinson. And simply

PAGE 30

Volume 9 Issue 3 - May/June 2009

resting a privacy claim on
Dual Purpose Search
“Searches
are
only
presumptive possession and control
The Crown’s alternative dual purpose
of the vehicle is not necessarily
reasonable if they are
argument was also successful. The
enough. In other words, to gain
authorized by law, if the
trial judge’s analysis turned on
access to the exclusionary remedy in
s.24(2) an accused must show a law itself is reasonable, and whether the predominant purpose of
breach of his or her personal rights. if the manner of the search the search related to a regulatory
inspection or a criminal
To succeed here the accuseds had to
is reasonable.”
investigation. In other words, at the
establish a sufficient privacy interest
moment the officer saw the empty
in the commercial vehicle or the
trailer
and
speculated
that alterations had been made,
duffel bag itself. Justice Wilkinson, however, found
the search was not transformed from a regulatory
they failed. Although they were present for the search
inspection into a criminal investigation. Instead, if the
other factors did not support a privacy interest:
police have statutory powers of search, as in the
•
the log books that may have demonstrated
Highways and Transportation Act, the fact that the
historical possession or control were not
police have suspicions of other kinds of wrongdoing
completed;
apart from traffic offences did not invalidate the
search. Dual purpose searches are not a violation of s.
•
the vehicle did not usually operate outside
8 of the Charter, so long as the statutory search meets
Thunder Bay, Ontario;
Charter scrutiny.
•

the accuseds’ status and the nature of their
relationship to the registered owner of the
vehicle and/or the commercial carrier, was in a
confused state and no attempt was made to
clarify it.

•

knowledge of the transportation legislation is a
requirement to be licensed as a driver. The
accuseds, as licensed drivers, would be well
aware of the possibility of mandatory inspections
and searches, whether for documents or for
potential violation of any one of the countless
obligations imposed by the regulatory scheme;

•

“Searches are only reasonable if they are authorized
by law, if the law itself is reasonable, and if the
manner of the search is reasonable,” noted Justice
Wilkinson. And this was not a random check stop
p r o g ra m wh e r e p o l i c e p ow e r s h ave b e e n
constitutionally confined to matters of sobriety,
licenses, ownership, insurance and mechanical fitness
of cars and in going beyond these matters there must
be reasonable grounds to detain according to the
common law investigative detention requirements:

no one asserted a right or interest in the duffle
bag. The accuseds actively disclaimed any
interest in the article of luggage and attributed
sole ownership to Blain (the deceased
passenger);

As a result, the accuseds did not meet the onus of
establishing a privacy interest and therefore failed to
establish a s.8 Charter infringement.

PAGE 31

Transposing principles from one context to
another can present difficulties. The police
powers during a random stop that constitutes
an arbitrary detention under s. 9 of the Charter
are not the same as police powers in a
justifiable detention targeted to a regulatory
scheme, nor are they the same as powers
exercisable in the course of other police
duties. The importance of the contextual
approach lies in its consideration of the
particular circumstances of these individuals,
and this state action, adjudged in the totality
of circumstances that have bearing on the
case.

Volume 9 Issue 3 - May/June 2009

Here, there was no arbitrary detention in
relation to the regulatory stop. ... [A] lawful
detention to investigate provincial infractions
(a burnt-out headlight and open beer) does
not become an unlawful detention, or prevent
the police from asking questions about
alcohol and mechanical fitness of the vehicle
because the police also suspected the
presence of drugs. ... [references omitted,
para. 81-82]

However care must be taken in differentiating
between powers exercisable in the course of a
random roadside check stop, and those exercisable in
the course of other police duties - such as when a
driver is legally stopped for speeding. Officers do not
need to ignore other legitimate aspects of their
general duties and powers and when so engaged do
not leave their perceptory senses - whether visual,
olfactory or auditory - at some other location.
However, in dual purpose stops, a nominally lawful
aim should not be used as a plausible facade for an
unlawful aim. In other words, the lawful aim cannot
be used as a pretext, ruse, or subterfuge - a plausible
facade - to perpetuate the unlawful aim. “It is not a
question of degree, or determining which purpose is
predominate or subordinate,” said the majority.
“Rather, it is a question whether a lawful purpose is
being exploited to achieve an impermissible aim.”
Here the police were exercising their powers in a
manner consistent with statutory purposes and
objectives, and within the scope of the legislative
authority. A commercial carrier engaged in long-haul
trucking operates in a tightly regulated environment
and is subject to many recording and reporting
requirements, especially when operating extraprovincially or internationally. Peace officers are
inspectors for the purpose of monitoring compliance
with various aspects of transportation policy,
legislation and regulation. Their powers of search, and
of entry and inspection have common themes:
The scenario of an unregistered vehicle
operating outside its usual jurisdiction with
expired IFTA decals, attended by two, and

PAGE 32

possibly three, drivers carrying questionable
documentation, certainly posed something of
a regulatory nightmare. It would have been a
rank abdication of duty on the officer’s part
had he not conducted further investigation.
Having found no less than three regulatory
violations in a scant few minutes, the officer
had reasonable grounds to search for, and
seize, documents and any evidence of other
operating infractions. The violations were not
trivial ones, and non-registration in
Saskatchewan was a particularly glaring
omission. The purpose of vehicle registration
and the importance of strict compliance with
the law is that registration is the first essential
step towards the enforcement of all laws
controlling the operation of motor vehicles
on the public highways.
Weights and dimensions, and equipment that
deviates from manufacturer’s specifications,
are entirely legitimate concerns of the
regulatory scheme. This is an industry where
even modest alterations to factory
specifications must be flagged and safety
inspected. It is an industry where ratings and
over-dimensions, cargo securement, and
weight distribution relate very directly to the
stability of a tractor-trailer unit, and hence,
valid safety issues. Trailers are prone to jackknifing. Semi-trailers are generally the largest
objects on the highway and the least
maneuverable in terms of rapid response to
changing road conditions. Instability can
easily topple a trailer unit on a curve or an
incline. A mere hunch or speculation that a
trailer has been altered or refabricated, even if
hidden contraband is the suspected reason for
the alteration, does not taint an otherwise
lawful regulatory search.
The search for documents was authorized by
law. The officer testified that he relied on s. 63
of the Highways and Transportation Act, 1997
that in his experience papers relevant to the
commercial operation could be scattered in

Volume 9 Issue 3 - May/June 2009

various areas throughout the tractor unit and,
indeed, this proved to be the case. Nothing in
the circumstances of this case indicated the
officer’s search for documents was a pretext
or an exploitative misuse of the regulatory
search powers, and the trial judge certainly
did not find that to be the case. She did find
that, on balance, he was “more interested” in
drugs than documents, but did not conclude
the regulatory concerns were being used as a
pretext or a facade in order to facilitate a
search for drugs.
The fact that the officer abandoned the
regulatory concerns once he found the cash
does not negate the fact of their existence.
[reference omitted, paras. 112-115]

And further:
In summary, the search of the duffle bag fell
within the scope of the officer’s powers
conferred explicitly by provincial statute
(namely The Highways and Transportation
Act, 1997) for securing and advancing the
purposes and objectives of the Act in the
context of the larger regulatory scheme. That
power was not exploited, or used as a pretext,
ruse or subterfuge. The Crown met the onus of
establishing in the totality of circumstances
that the search was: (a) authorized by law; (b)
the law was reasonable; and (c) the manner of
the search was reasonable. [It was not] an
organized police initiative conceived and
designed for the dual purpose of conducting
sweeping criminal investigations during
r o u t i n e t ra f f i c s t o p s . Th e o p e ra t i o n
overstepped the bounds of what was
constitutionally permissible and could not be
saved by s. 1 of the Charter. The operation
could safely be characterized as a pretext. In
contrast, the power to “look in every nook
and cranny of a commercial vehicle” (absent
pretext, ruse or subterfuge) can be likened to a
statutory power of investigative detention for
regulatory purposes. The ambit and scope of a

regulatory inspection of a commercial vehicle
far exceeds the limited inquiry permitted in a
routine traffic stop of private vehicles. The
powers in s. 63 of the Highways and
Transportation Act to stop, search, and seize
necessarily include the power to detain
individuals for investigation of regulatory
infractions the particular justification in this
case being the log book violations. The officer
was entitled to detain the [accuseds] until his
investigation of the log books and supporting
documents was complete. In my analysis, the
issue of arbitrary detention does not come
into play in the circumstances of the case
until the point of arrest. [para. 121]

The Arrest
Although the trial judge accepted that the officer
subjectively believed he had reasonable grounds to
arrest the accused for possession of proceeds of
crime, she found that the circumstances - the empty
load, the admittedly “rare” situation of a commercial
vehicle operating without appropriate registration, the
presence of a third occupant along for the ride - were
more “neutral” than indicative of criminal activity and
therefore, even in light of the $115,000 cash packaged
in bundles, did not meet the objective test for arrest.
However, she did not consider the other unusual
circumstances, including the expired IFTA decals, the
deficient log books, and the officer’s sense that the
cargo hold appeared odd or altered. In Justice
Wilkinson’s view the trial judge imposed too high a
standard on the requirements for a lawful arrest.
In this case there was a large sum of money packaged
in distinctive bundles, which, in the officer’s
experience, was indicative of drug proceeds. And the
money was found, not in a private vehicle, but in a
commercial vehicle attended by a number of unusual
circumstances that were discovered very rapidly in
the course of a regulatory inspection. The altered
appearance of the cargo hold, while insufficient on its
own to provide reasonable grounds, was nonetheless
a relevant factor which, on the totality of the
evidence, provided reasonable grounds for arrest. In

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Volume 9 Issue 3 - May/June 2009

recognizing the requirement that an arresting officer’s
grounds be assessed against a reasonableness standard
in order to protect against arbitrary, capricious, or
officious abuse of state powers, Justice Wilkinson
stated:

on a busy highway in the middle of a winter
night. ... [I]n determining whether the
reasonableness standard had been met, [a
court can take into] account ... the context
and the dynamics at play in situations of
arrest where decisions must be made quickly
and on information that is often less than
exact or complete.

To the extent that an “after-the-fact” judicial
review must be able to independently and
objectively assess the grounds upon which
the officer relied, that standard is satisfied
A c c o r d i n g l y, t h e o f f i c e r ’s s u s p i c i o n
here. On preliminary inspection, the cargo
concerning the appearance of the cargo hold
hold looked odd or altered. Physical
should have been taken into account along
measurements could readily
with his experience in the
confirm the interior was
field and the constellation
“In deciding what cluster of
significantly shorter than the
of unusual factors or “red
circumstances, or
exterior, and that the trailer’s
flags” that featured in the
‘constellation
of
objectively
factory specifications had been
circumstances of this case.
altered. The officer’s observation is
discernable facts’ is sufficient T h e s e i n c l u d e d t h e
objectively verifiable. ...
to provide reasonable grounds discovery of a duffel bag full
of money, a commercial
for arrest, the ‘reasonable
However, if an officer forms a
vehicle operating far outside
belief based, in part, on deviations
person placed in the position i t s u s u a l c o r r i d o r o f
in the appearance of an article, or
operation without the
of the police officer’ would
a piece of equipment that is
appropriate registration or
fairly and appropriately
something that the reasonable
IFTA decals, the driver’s
person placed in the position of
consider the circumstances in explanation that a delivery
the officer might readily accept.
broad totality.”
had been recently made in
Reasonable people understand it is
yet another jurisdiction the
possible to walk into a place and feel it looks
vehicle was not authorized to operate in, the
smaller inside than it appears from the
irregular documentation, and the unusual
outside. These observations can be empirically
presence of three occupants in a vehicle
tested.
carrying no commercial cargo. Further, the
trial judge should have considered the officer’s
The trial judge took the view that if the
evidence regarding the unusual bundling of
measurement had been done earlier, it might
the money. [references omitted, paras.
have been relevant to the analysis. In deciding
131-134]
what cluster of circumstances, or
“constellation of objectively discernable facts”
The trial judge aslo erred in not considering the
is sufficient to provide reasonable grounds for
officer’s experience and training in relation to seizures
arrest, the “reasonable person placed in the
of cash and the significance of its distinctive
position of the police officer” would fairly and
packaging when considering whether objectively
appropriately consider the circumstances in
reasonable grounds for arrest existed because the
broad totality. With each “red flag” that this
officer had not been qualified as an expert. “The
officer encountered, he did not have the
officer stated he had had past experience with
luxury of stopping to take a thread count. He
seizures of cash, and his testimony regarding the
was one officer dealing with three individuals
small denominations and distinct bundling of the

PAGE 34

Volume 9 Issue 3 - May/June 2009

cash should have been admitted and considered by
the trial judge in relation to the question whether of
the officer’s belief that a crime had probably been
committed was objectively reasonable,” said Justice
Wilkinson. “While the officer’s lack of expertise may
have precluded him from giving opinion evidence on
the ultimate issue whether the money was, in fact,
proceeds of crime, the evidence was nonetheless
admissible for the limited purpose of explaining and
justifying the officer’s decision to effect an arrest.” As a
result, the trial judge erred in finding the arrest for
possessing proceeds of crime unlawful and a breach
of s.9 Charter.

objectively reasonable. This purpose was to search for
evidence related to the offence for which the
accuseds had been arrested. The trial judge had
applied an incorrect legal test in determining the
validity of a search incident to arrest because she gave
no consideration to whether the officer was lawfully
engaged in a search for evidence related to the
offence of possessing proceeds of crime.

Searches Incident to Arrest

A Different View

The cash and marihuana should not have been
excluded and the Crown’s appeal was allowed, the
acquittals set aside, and a new trial was ordered on
all charges.

Justice Jackson, in dissent, was of a
A search incidental to arrest, a
“The
validity
of
[a
search
different opinion. In her view, the
common law power permitting
trial judge did not err in finding
incident to lawful arrest]
police to search a lawfully arrested
breaches of ss.8 and 9 of the
person and seize anything in his or
depends on the arrest being
Charter. She also agreed the
her possession or immediate
lawful, the manner of search
money found in the duffle bag
surroundings to guarantee the
should have been excluded, but
being
reasonable,
and
the
safety of the police and the
not the marihuana. The acquittal
accused, prevent the prisoner’s
purpose of the search being
on the possessing proceeds of
escape or provide evidence
truly incidental to the arrest.” crime was sustained but she would
against him, is an exception to the
have ordered a new trial on the
principle that warrantless searches
possession and trafficking of marihuana charges. On
are prima facie unreasonable. The validity of such a
the dual purpose issue, she stated:
search, however, “depends on the arrest being lawful,
the manner of search being reasonable, and the
... [T]his notion of dual purpose appears to be
purpose of the search being truly incidental to the
settled in this jurisdiction. The combination of
arrest.”
both a lawful and an unlawful aim produces
In this case the majority found both searches could be
properly classified as searches incident to arrest. The
first search - the roadside measurements of the interior
and exterior of the trailer - bolstered the arresting
officer’s concern that there was a secret compartment
in the cargo hold. The trial judge, however, said that
even if the arrest was lawful, this search was not a
reasonable search incident to arrest, because: (1) there
were no exigent circumstances; and (2) there were no
concerns for officer safety. She failed to mention the
valid objective of searching for evidence. The second
search - conducted a considerable time later at the
detachment - was done for a valid purpose which was

PAGE 35

an unlawful check stop. The police authority
to stop in this case rests on s. 40(8) only. ...
[T]he police officer, in effecting that stop,
cannot have, as one of his overt purposes, a
search for criminal activity. In this case, the
police officer discovered what he believed to
be an infraction of The Highways and
Transportation Act, 1997, but the principle is
the same. A police officer who started out
with a lawful purpose in effecting the random
stop is not permitted to change his focus,
without even “reasonable grounds to
suspect,” ... that a crime has been committed,

Volume 9 Issue 3 - May/June 2009

simply because a regulatory infraction is
discovered. [references omitted, para. 192]

The trial judge correctly interpreted the law.
She made a clear finding as to the police
officer’s intentions. She then reached the
conclusion that, in the circumstances of this
case, for the officer to proceed to search for
drugs as the focus of his search, he needed
either informed consent or reasonable and
probable grounds to search. I see no basis to
interfere with either her reasoning or her
conclusion. [paras. 198-200]

And further:
It is not inappropriate for a police officer “to
be aware” that any regulatory search may
uncover contraband or to have expectations
that a search lawfully conducted in relation to
the regulatory search power may uncover
drugs. Nor can a police officer turn away from
plain view or plain smell discoveries. What a
police officer cannot do, however, is search
for contraband with that as the purpose or one
of the defined purposes of the search, when
the search authority extends to regulatory
matters only. It will be for a trial judge to
determine what the police officer believed,
saw or smelled.
The trial judge’s finding of the police officer’s
intention in this case is crucial. She found this
police officer’s focus changed from inspection
to a search for criminal activity. I interpret
these words to mean that the police officer’s
interest in regulatory matters was now playing
a minor role, if any. The police officer was
now searching for evidence of criminal
activity when his only authority was to search
in relation to regulatory matters. As defence
counsel aptly point out, the trial judge did not
find that the officer could not have continued
his regulatory inspection once he had
suspicions of criminal wrongdoing, if the
focus had been still to investigate regulatory
issues. For instance, she did not address what
the situation would have been if the officer
had continued, in spite of his suspicions, to
inspect the vehicle in relation to regulatory
concerns by asking to see the co-driver’s log
book, or any other documentation of this
nature, or even searched the cab of the truck.
The police officer, by contrast, proceeded
immediately from a cursory examination of
the trailer to the sleeping area, where his
search began with a search of the luggage.

On the search incident to arrest analysis, Justice
Jackson would have agreed with the majority that “if
the arrest had been lawful, the searches undertaken as
incident to that arrest would have been lawful as
well” and the police would not have been required to
obtain a search warrant.
Complete case available at www.canlii.org

Editor’s Note: Appeal of this case to the Supreme
Court of Canada has been granted.

BY THE BOOK:
Fisheries Act - Seizure Authority
s.51 A fishery officer or fishery guardian
may seize any fishing vessel, vehicle,
fish or other thing that the officer or
guardian believes on reasonable
grounds was obtained by or used in
the commission of an offence under
this Act or will afford evidence of an offence under
this Act, including any fish that the officer or guardian
believes on reasonable grounds
(a) was caught, killed, processed,
transported, purchased, sold or
possessed in contravention of
this Act or the regulations; or
(b) has been intermixed with
fish referred to in paragraph
(a).

PAGE 36

Volume 9 Issue 3 - May/June 2009

NO PRIVACY INTEREST
ESTABLISHED:
s.24(2) INAPPLICABLE

with a lawyer, and told the officers he owned the
ropes and pans, but denied owning the lobsters (98
of 108 were undersized). The accused was charged
under s.57(2) of the Atlantic Fishery Regulations and
s.78(a) of the Fisheries Act.

R. v. King, 2009 PEICA 9
Th e a c c u s e d w a s a l i c e n c e d
commercial lobster fisherman and
also employed with Transport Canada
as a Harbour Master/Wharfinger
where he had responsibility for the
supervision and management of the Transport
Canada Marine Terminal, including its warehouse.
Access to the terminal was controlled by two gates,
which were often left to allow public access.
However, when a ship was being off-loaded the gates
would be closed for security purposes. Various signs,
restricting access and allowing only authorized
vehicles were posted.

At trial in Prince Edward Island Provincial Court the
accused made a motion under the Charter to exclude
any evidence related to the seizure. Although the
trial judge found the officers had the right to enter
the warehouse without a warrant to conduct an
inspection, as soon as they discovered the illegal
lobster they had embarked upon an investigation and
were required to obtain a search warrant to validate
their search and subsequent seizure. Because no
warrant had been obtained, the accused’s s.8 Charter
right was breached and the lobsters were excluded
under s.24(2). The charges were dismissed.
The Crown successfully appealed to the PEI Supreme
Court. Since the officers lawfully entered the
warehouse without a warrant to do an inspection,
the appeal judge held anything discovered in the
course of that inspection and reasonably believed to
be obtained by the commission of an offence or
which might assist in proving an offence could be
seized by under s.51 of the Fisheries Act. The
acquittal was set aside, and a new trial was ordered.
The accused then appealed to the Prince Edward
Island Court of Appeal.

Near the end of spring lobster season two fisheries
officers patrolling the area saw the accused’s boat
tied to the wharf with lobster traps and gear on
board. The door to the warehouse at the Marine
Terminal was open and the officers went inside to
see if the accused was there. A number of fish pans
full of rope were seen lying on the floor as well as
some buoys. An officer heard a “cracking” sound moving lobsters - and examined the contents of the
lobster pans, finding a number
of lobsters. He measured some “Fundamental to obtaining relief
of them and found some to be
under s. 24 of the Charter on
undersized. While one of the
officers left the property in their
the basis that there has been a
vehicle, the other waited in an
breach of an individual’s right to
empty office for the lobster
be protected from
owner to return. About 90
minutes later the accused, in unreasonable search or seizure,
company of another person,
is the presence of a personal
returned, handled the lobsters,
and proceeded to close the privacy right. Absent a personal
warehouse door. The officer privacy right, an individual does
confronted the men and told the
not have any right to be
accused some lobsters were
undersized and he was violating
protected from search and
the Fisheries Act. He was
seizure.”
Chartered, declined to speak

PAGE 37

Justice McQuaid, writing the
opinion of the Prince Edward Island
Court of Appeal, found it was
unnecessary to determine whether
t h e Fi s h e r i e s A c t p owe rs o f
inspection rendered the entry into
the warehouse and the lobster
seizure reasonable. Instead, he
focussed on whether the accused
had a reasonable expectation of
privacy in these circumstances. If
there was no reasonable
expectation of privacy then there
was no Charter “search” and
therefore no need to resort to s.
24(2). “Fundamental to obtaining
relief under s.24 of the Charter on

Volume 9 Issue 3 - May/June 2009

warehouse but did not have
“If there is no reasonable either possession or control by
any legal interest such as a
expectation of privacy on tenancy under a lease. He had
the part of an accused in possession only because of his
position of employment and it
respect to the place in
was not exclusive. The property
was accessible to the public with
which the search took
the [accused] having some
place, there is no violation control over which members of
the public could enter and when
of the s. 8 right.”
When an accused challenges the
they could enter. On the day in
admissibility of evidence obtained
question, he was not enforcing
this control as he left this public property
from the search of a third party’s premises, they bear
fully accessible to all who wished to enter.
the burden of first establishing, on the totality of the
Historically, the property was accessed by
circumstances, that they personally have a
the public, albeit at times under the
reasonable expectation of privacy. “If there is no
supervision of the [accused] as the
reasonable expectation of privacy on the part of an
wharfinger. I do not think the [accused] had
accused in respect to the place in which the search
any subjective expectation of privacy and this
took place, there is no violation of the s. 8 right,”
is borne out by the fact that he took the
said Justice McQuaid. “The totality of the
position, when questioned, that the lobsters
circumstances must be considered in determining if
were not his thereby inferring others had
there was such a reasonable expectation, and this
access for purposes of leaving their lobster
includes the consideration of a number of factors.”
on the property. While the [accused]
strenuously asserts his personal privacy
interest in the warehouse, on a close
Factors to consider in the overall analysis include (i)
objective examination of all the
presence at the time of the search; (ii) possession or
circumstances, he did not have such an
control of the property or place searched; (iii)
interest.
ownership of the property or place; (iv) historical use

the basis that there has been a
breach of an individual’s right to be
protected from unreasonable search
or seizure, is the presence of a
personal privacy right,” he said.
“Absent a personal privacy right, an
individual does not have any right to
be protected from search and
seizure.”

of the property or item; (v) the ability to regulate
access, including the right to admit or exclude others
from the place; (vi) the existence of a subjective
expectation of privacy; and (vii) the objective
reasonableness of the expectation. Only after the
accused establishes a reasonable expectation of
privacy will the enquiry move to the second stage whether the search was reasonable.
In this case, the Appeal Court found the accused did
not have a reasonable expectation of privacy in the
Marine Terminal:
The [accused] was absent from the property
at the time the officers arrived; however, they
knew him to be present there at most times
because of his position and they had
observed his truck there earlier in the day.
The [accused] was an employee of Transport
Canada, the owner of the warehouse. He
was responsible for the maintenance of the

PAGE 38

There is the notion of territorial privacy used
as “ . . . an analytical tool to evaluate the
reasonableness of a person’s expectation of
privacy.” There is a range or hierarchy of
places where our expectation of privacy has
been found to be reasonable starting with
our homes, the space around our homes,
space where we might operate a commercial
enterprise, our private cars and even a prison
cell.
The space occupied by the [accused] in the
warehouse could not be said to be his
commercial space because his employment
with Transport Canada was separate and
apart from his commercial fishing enterprise.
He did not have control over the property as
a fisher but as a wharfinger employed by
Transport Canada. He was occupying a
public building because of this employment
and using it for his commercial fishing

Volume 9 Issue 3 - May/June 2009

enterprise. He did not have any reasonable
expectation of personal privacy in doing so.
[references omitted, paras. 36-38]

environment, to the need for broader powers
of search and seizure. [para. 40]

Since the accused had no reasonable expectation of
!"#$
privacy in the Marine Terminal or the warehouse the
,-.'*/01234'05637
officers did not breach s.8 of the Charter when they
entered and seized the lobster pursuant to the
Fisheries Act. And since there was no Charter
violation, an analysis under s.24(2) of the Charter
was not required. The accused’s appeal was
dismissed and a new trial was ordered.
A PEER R

And further:

!"#$%&

There is a much reduced expectation of
personal privacy when inspection powers are
exercised upon an individual participating in
a highly regulated endeavor like the fishery.
In a regulated environment, the individual’s
privacy interests must give way, more quickly
than in criminal or quasi-criminal

Complete case available at www.canlii.org

('>49;54<<41'346C<43'<C'CD41E<

IN MEMORIAL
$8'*&*"O$(#

British Columbia
Police and Peace Officers
Memorial Service
Sunday
September 27, 2009

On May
5, 200956#
41-year-old
./#
01234#
5++7# 85,9:12,
Royal
Canadian
Mounted
(;/>?1@<:# A1/B:<# C:>>B:2# ;D# ?4:# E1
Police Constable James
G;<B3:#
A:H12?I:/?#
J1>#
Lundblad
was killed in
an D1?1<<9# >4
=K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@
automobile accident in
Camrose,
Alberta,
while
PB>#
H12?/:2#
(;/>?1@<:#
$?:H41
a
t
t
e
m
p
t
i
n
g
t
o
s
t
o
p
a
Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO

speeding vehicle. He had
been
parked on the shoulder of the roadway when
(;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=#
the speeder passed by.

@::/# H12?# ;D# 1# <12L:# >BIK<?1/:;K>#
3213R=;J/# ;/# 1# =2KL,=:1<B/L#
As Constable
Lundblad ;K?#
made a
/:?J;2R# JB?4# >:1234# J1221/?>#
U-turn
to
stop
D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# the
vehicle he was
?J;#B/#M2;>>12=O
struck on the

Form up 11:40 am
March off 12:00 pm

Ceremony 1:00 pm
HMCS Discovery
Brockton Oval
Stanley Park
Vancouver,
British Columbia
More info at

www.memorialribbon.com

driver's side by a

(;/>?1@<:# C:>>B:2# 41=# @::/#
grain truck. Both
1>>BL/:=#?;#?4:#I;21<B?9#1/=#=2KL#>TK1=#;/<9#;/:#J:
vehicles were
pushed into a ditch.
@:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;<B3:#;DDB3:2#D;2
Constable Lundblad
9:12>O
suffered fatal
injuries.

(;/>?1@<:# C:>>B:2# B># >K2FBF:=# @9#
JBD:6#
Constable Lundblad
had J4;# 1<>;# >:2F:># 1># 1# H;<
3;/>?1@<:6#
1/=# ?J;# 9;K/L# =1KL4?:
served with the RCMP
for
eight years.
1L:>#*+#1/=#*5O

Source: Officer Down Memorial
PageVB?4#
available
www.odmp.org/
?4:#at=:1?4#
;D# (;/>?1@<:# C:>>B:26# 1# ?;?1<# ;D#
canada

H;<B3:#;DDB3:2>#41F:#<;>?#?4:B2#<BF:>#?;#LK/DB2:#;F:2#?
H1>?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/3<K

PAGE 39

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40
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