J.

IBBUEB OF INTEREST
VOLUME ND. 39

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V6R 4J5

ISSUES OF INTEREST
VOLUME NO. 39

Written by John M. Post
October 1991

TABLE OF CONTENTS
Page#
RIGHT TO TRIAL WITHOUT UNREASONABLE DELAY . . . . . . . . . . . . . . . . . 1
Regina v. Askov - Supreme Court of Canada,
[1990] 2 S.C.R. 1199, October 1990.

LIABILITY OF PARTY TO A CRIME THAT RESULTS ... .... . . . . . . . . . . . 4
IN MURDER
Regina v. KirkneSs - Supreme Court of Canada,
60 C.C.C. (3d) 97, February 1991.

OFFICERS ENTERING PRIVATE PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 6
SURREPTITIOUSLY TO VERIFY THEIR SUSPICION
THAT MARIHUANA WAS CULTIVATED IN THE HOUSE
- SEARCH WARRANT OBTAINED ON BASIS OF THAT
VERIFICATION -- REASONABLE SEARCH AND SEIZURE
Regina v. Kokesch - Supreme Court of Canada,
November 1990, 61 C.C.C. (3d) 207

THE ADMISSIBILITY AND USE OF VIDEOTAPED . . . . . . . . . . . . . . . . . . . . 10
STATEMENTS BY THE UNDERAGED VICTIM OF
CERTAIN SEXUAL OFFENSES
Regina v. Meddoui - 61 C.C.C. (3d) 345,
Alberta Court of Appeal - November 1990

WHO MUST TESTIFY TO PROVE THE VOLUNTARINESS OF
A STATEMENT
Regina v. James - BC Supreme Court,
Victoria No 54942, November 1990

-1-

. . . . . . . . . . . 13

THE UNDERCOVER "CELL MATE" - ADMISSIBILITY . . . . . . . . . . . . . . . . . 15
OF STATEMENTS MADE BY ACCUSED WHILE INCARCERATED
Regina v. Graham - Ontario Court of Appeal,
62 C.C.C. (3d) 128. January 1991
DEMAND FOR BLOOD SAMPLE MADE UPON ORDER OF . . . . . . . . . . . . . . 17
SUPERIOR: OFFICER - INVESTIGATING OFFICER DID
NOT HAVE PREREQUISITE GROUND TO MAKE DEMAND
Regina v. Fowler - 61 C.C.C. (3d) 505 Manitoba Court of Appeal

ENTRAPMENT OF PERSONS NOT UNDER INVESTIGATION IN A
PLACE NOT KNOWN FOR DRUG ACTIVITIES - DERIVATIVE
ENTRAPMENT
Regina v. Kenyon - Court of Appeal for BC 61 C.C.C. (3d) 538 - November 1990

. . . . . . . . 19

RIGHTS OF AN UNREPRESENTED ACCUSED BEFORE TIIE COURT . . . . . . . 20
Regina v. Hardy - Court of Appeal for Alberta - 62 C.C.C. (3d) 28,
December 1990.

POLICE RECOVERING PERSONAL PROPERTY OF ACCUSED . . . . . . . . . . . 21
UPON ms REQUEST AND IN THE PROCESS STUMBLING ONTO
WEIGHTY EVIDENCE. IF TIIERE WAS UNREASONABLE SEARCH
AND SEIZURE IT WAS INADVERTENT -- EVIDENCE ADMISSIBLE
Regina v. Blair - Court of Appeal for BC,
Vancouver CA 010392 - March 1991

INVESTIGATING OFFICER REFUSING TO INFORM DEFENCE . . . . . . . . . . . 22
COUNSEL OF ms GROUNDS FOR DEMANDING BREATII
SAMPLES OF SUSPECT
Regina v. Sherwood - BC Supreme Court,
Vancouver CC901371 - April 1991

ADMISSIBILITY OF ACCUSED'S CASUAL CONVERSATION . . . . . . . . . . . . . 24
WITII A POLICE OFFICER
Regina v. Van Haarlem - BC Court of Appeal,
Vancouver CA011090 - May 1991
-11-

ADMISSIBILITY IN EVIDENCE OF "ONE PARTY CONSENT" . . . . . . . . . . . . 28
INTERCEPTION OF PRIVATE COMMUNICATION BETWEEN A
POLICE SUPERVISOR AND A POLICE OFFICER UNDER
INVESTIGATION
Regina v. Boivin - BC Supreme Court,
Vancouver CC900144 - April 1991

TIIE "ONE-MAN LINE UP" CONDUCTED BY TIIE VICTIM'S . . . . . . . . . . . . 30
MOTIIER WITII POLICE ASSISTANCE - POLICE TRICK TO
OBTAIN ADMISSION TIIAT INCRIMINATING PROPERTY IS
OWNED BY TIIE ACCUSED
Regina v. Swan - BC Court of Appeal,
Victoria CA V01045 - May 1991

CONSTITUTIONAL VALIDITY OF VAGRANCY SECTION . . . . . . . . . . . . . . . 32
APPLICABLE TO CONVICTED SEX OFFENDERS MEANING OF WITERING - TIIE REQUISITE MENS REA
Regina v. Heywood - Supreme Court of BC,
Victoria No. 529'88-C, May 1991

TIIE DILEMMAS AND OBSCURITIES OF OBTAINING . . . . . . . . . . . . . . . . . 35
BWOD SAMPLFS FROM IMPAIRED AND/OR UNCONSCIOUS
SUSPECTED IMPAIRED DRIVERS
The Queen v. Dyment - Supreme Court of Canada, December 1988
Regina v. Lunn - BC Court of Appeal, December 1990
Regina v. Dersch - BC Court of Appeal, May 1991

FORCED ENTRY OF HOME TO EFFECT THREE ARRESTS AND . . . . . . . . . 39
PREVENT DESTRUCTION OF EVIDENCE - JUSTIFICATION AND
PROPRIETY OF POLICE ACTION - ONE ACCUSED ACQUITTED
IN PROVINCIAL COURT - APPLICATION OF "RFS JUDICATA"
Regina v. Kasel and Merideth "." BC Supreme Court,
Vancouver No. C.C.901322, February, 1991

-111-

TIDBITS:
DISTINCTION BETWEEN ASSAULT CAUSING BODILY HARM . . . . . . . . . . . 41
AND AGGRAVATED ASSAULT
Regina v. Parish - Court of Appeal for New Brunswick 60 C.C.C. (3d) 350, September 1990.
ONLY THE INTENT TO USE A KNIFE AS A WEAPON CAN . . . . . . . . . . . . . 41
TRANSFORM THIS BUTCHER'S IMPLEMENT INTO A WEAPON
Regina v. Roberts - Nova Scotia Court of Appeal,
69 C.C.C. (3d) 509, November 1990.
OBSTRUCTING JUSTICE BY INTERVENING . . . . . . . . . . . . . . . . . . . . . . . . 42
IN THE PROSECUTION OF A FRIEND
Regina v. Kotch - 61 C.C.C. (3d) 132.
Alberta Court of Appeal, November 1990.
PROTECTING IDENTITY OF INFORMER - . . . . . . . . . . . . . . . . . . . . . . . . . 42
CROWN STAYING PROCEEDINGS TO PREVENT OFFICER
FROM HAVING TO ANSWER QUESTIONS ON IDENTITY
Scott v. The Queen et al - 61 C.C.C. (3d) 300. December 1990.
POLICE OFFICERS ASKED TO "GET RID OF" HANDGUNS . . . . . . . . . . . . . 43
AND ACCEPTING THEM AS PERSONAL GIFTS POSSESSION OF RESTRICTED WEAPON
Regina v. Bibeau and Lemay - 61 C.C.C. (3d) 339. November 1990.
"ASSAULT CAUSING BODILY HARM MAY BE AN INCLUDED . . . . . . . . . . . 44
OFFENCE TO ROBBERY"
Regina v. Horsefall - 61 C.C.C. (3d) 245 - BC Court of Appeal,
November 1990.
DOES MAKING A DEMAND FOR BREATH SAMPLES AS WELL AS . . . . . . . . 45
SUSPENDING THE SUSPECTS DRIVER'S LICENCE AMOUNT
TO CRUEL OR UNUSUAL PUNISHMENT?
Regina v. Shaw - BC Supreme Court, Courtenay No. S0134 - February 1991.
POLICE COMMISSION PUBLIC INQUIRY INTO POLICE ACTION
IS NOT A TRIAL AND NOT SUBJECT TO BE TRIED WITHIN A
REASONABLE TIME.
Desormeaux v. Cote - Quebec Court of Appeal
- 61 C.C.C. (3d) 560, September 1990

-IV-

. . . . . . . . 46

ENTERING HOTEL ROOM UNINVITED AND FINDING DRUGS . . . . . . . . . . 47
IN CLEAR VIEW. PURPOSE FOR ENTERING UNRELATED TO
THE DRUGS - ADMISSIBILITY OF EVIDENCE
Regina v. Lowe and Godbout - Supreme Court of BC Victoria No. 54013, Decmeber 1990.
A GESTURE CAN AMOUNT TO A STATEMENT . . . . . . . . . . . . . ... . . . . . 47
Regina v. Derewenko - BC Supreme Court Chilliwack No. 23591, April 1991.

-v-

RIGHT TO TRIAL WITHOUT UNREASONABLE DELAY

REGINA v. ASKOV - Supreme Court of Canada, [1990] 2 S.C.R. 1199, October 1990.

The accused Askov and three others were engaged in a territorial dispute with a Mr. B. over
supplying of exotic dancers in a region in Ontario. The mode of negotiations with B. (which
included meetings in the company of body guards) was such that charges of extortion, possession
of prohibited weapons, possession of weapons dangerous to the public peace, and pointing of
firearms resulted. All four were arrested and released on recogni7.3.Ilce involving substantial
sums of money and stringent conditions. (Askov was re-arrested for an unrelated charge while
out on bail).
The Crown had in a "commendable manner" prepared for an early preliminary hearing which
was upon request by the accused "put over" for several months. The accused also failed to
respond to an offer for "an early date" to proceed. On the agreed to date, the hearing was not
completed due to conflicting Court schedules and this resulted in it riot being completed for 10
months after the arrest.
A trial date was finally agreed to for a date some 13 months after the completion of the
preliminary hearing. As the date approached it became obvious that due to cases having greater
priority, the trial could not go ahead. All counsel involved agreed then to a trail date 11 months
later. That meant that the matter would go to trial nearly three years after the arrest. When the
trial finally began, defence counsel despite the agreement to the trial date moved for a stay of
proceedings as the accused's right to be tried within a reasonable time had been infringed. The
stay was granted by the trial court, but was reversed by the Court of Appeal for Ontario. The
accused appealed this reversal to the Supreme Court of Canada (S.C.C.).
Although no blame for these delays were attributable to the Crown, the S.C.C. held:

"It must be remembered that it is the duty of the Crown to bring the accused to
trial. It is the Crown which is responsible for the provision of facilities and staff
to see that the accused persons are tried in a reasonable time". [Charter 11 (b)]
An accused has no duty to brini: himself to trial. Administrative and facility problems cannot
justify inordinate length of time for delay.
When the meeting of counsel took place and a date was agreed to, had the accused then not
waived their rights to a trial within a reasonable time? "No", responded the S.C.C. There was
not a choice given to the accused. The date was the earliest one available and it was assigned
or allotted to him. Not objecting to a lengthy delay does not amount to a waiver. The onus is
on the Crown to demonstrate that the accused agreed to the deal or explicitly waived his rights.
Therefore there was no specific or inferred waiver in this case.

-2But what about an accused person who deliberately has a concealed strategy to delay his trial
until the period between arrest and trial amounts to an unreasonable delay? In view of the
Crown's responsibility to bring an accused's person to trial within a reasonable time being an
aspect of fundamental justice (s. 7 Charter) and a specific right of the accused [s. ll(b)
Charter] .....

" .... It follows that any inquiry into the conduct of the accused in no way absolve

the Crown from its responsibility to bring the accused to trial".
The S.C.C. held that where an accused claims an unreasonable delay and the record does not
make it clear and apparent that the affect of the accused's actions amounted to an intentional
causation of delay, the Crown must prove that the accused deliberately employed a calculated
tactic to delay his trial.
However, where the delay was caused by factors beyond the control of the accused, or a
situation where the accused did nothing to prevent a delay caused by the Crown, then the claim
of unreasonable delay can not be rebutted. The Court seemed to say that even where the
accused wants a delay to accommodate an infringement of his right to a trial without
unreasonable delay so he can reap the benefit of that infringement (a judicial stay of
proceedings), and there is a contributory causation of delay on the part of the Crown, the
accused is entitled to a finding that there was unreasonable delay.
J

Agreement to or absence of objection to an adjustment of trial date which causes an unreasonable
delay, is not a waiver on the part of the accused or disentitlement to a claim that his right in this
regard was infringed.
Appeal allowed.
Stay of proceedings directed.

Note:

Judgment day whether on this earth or elsewhere is something we humans do not
mind to postpone for as long as possible. In criminal law, the earthly judgment
day can be avoided altogether by allowing the Crown or Courts to violate one of
our entrenched fundamental rights. It is an absurd theory that by victimization
we can gain a most desired benefit. The exclusionary rule as well as judicial
stays of proceedings under section 24 of the Charter have in essence caused a
violation of our rights by the State, to be a favour. With regard to unreasonable
delays of trials the Honourable T.G. Zuber said in his "Report of the Ontario
Courts inquiry (1987);

-3-

"This unique attitude on the part of the accused
towards this right often puts a court in a position
where it perceives itself as being asked to dismiss
a charge, not because the accused was denied
something which he wanted, and which could have
assisted him, but rather because he got exactly what
he wanted, or at least was happy to have ..... delay."
The last thing an accused may want, is a speedy trial. The dismissal does not come because the
accused was wronged in a real sense, but rather he successfully played the waiting game.
Apparent cooperation with Crown or Court scheduling dilemmas can be part of that game's
strategy.

-4LIABILITY OF PARTY TO A CRIME THAT RESULTS IN MURDER

REGINA v. KIRKNESS - Supreme Court of Canada, 60 C.C.C. (3d) 97, February 1991.

The accused and his friend S. broke into the home of an elderly woman in the early morning
hours. The woman, described as frail at the age of 83 years, was found in her bed. S. removed
the woman's clothing and raped her. He ordered the accused to wait in the hallway until he was
finished. The accused placed a chair against the front door of the home to prevent anyone from
entering. He then proceeded to search the house and steal various items. When S. had finished
the assault he dragged the woman into the hallway where she "just laid". The accused then
searched the bedroom for valuables. When he came out of that room he found S. choking the
elderly woman. The accused asked S. not to do that as he might kill her. S. then placed a
plastic bag over his victim's head and dragged her into the bath tub and turned on the hot water,
the woman suffocated. The accused did not once touch the woman. The assault, the choking
and the tub scene had all been S. 's actions. No evidence linked the accused to either the sexual
assault or the suffocation of the woman.
The accused and S. were charged with first degree murder. S. was convicted but the accused
was acquitted. The Crown appealed the acquittal and the Manitoba Court of Appeal ordered the
accused to stand trial for manslaughter. The accused appealed this decision to the Supreme
Court of Canada (S.C.C.).
The Court opened its majority judgment (four to three) with what seems a prelude to vent the
personal feelings of the Justices before handling the law in a detached way. They confessed to
a strong tendency to closely· associate the accused with this despicable crime. They seemed to
remind themselves that both the despicable and the personable are entitled to be judged solely
on the basis of the relevant evidence. They also expressed respect for the jury which acquitted
the accused of first degree murder after a long deliberation. As representatives of the
community they were able to apply the principles of law and fairness despite having heard first
hand, the evidence of a brutal murder of a defenceless, frail woman in her own home located
in that very community. Their tendency to associate the despicable accused with that homicide
must have been much stronger than that of the members of the S.C.C.
The Manitoba Court of Appeal had found that the accused was clearly a party to the crime S.
committed. He had ensured that S. would not be interrupted in the sexual assault and had stood
guard as it were. The entire sequence of events could not be broken down in components or
distinct incidents. The aggregate of the actions on the part of both men had led to the killing
of the elderly woman. Consequently the unlawful acts of the accused had resulted in the
woman's death. That amounts to manslaughter reasoned the Court of Appeal and the jury
should have been instructed accordingly.

-5The S.C.C. held that the sordid events, right from the break and entry through to the woman
being placed in the bathtub, did not amount to a single transaction. The trial judge had properly
instructed the jury that they had two options in regard to the occurrence of the death. It was
either part of the sexual assault (in that case both S. and the accused were guilty) or they could
find the death had occurred due to suffocation at the hands of S. In either case the jury would
have to find that there was a degree of planning and deliberation to convict them of murder.
Clearly the jury decided that suffocation by S. was the case as they convicted S. and returned
a verdict of not guilty for the accused. The accused could only be implicated as a party to the
sexual assault. (s. 21 C.C.) by aiding S. in committing it.
These instructions to the jury and the verdict it returned clearly indicate that the 11 single
transaction 11 approach on the part of the accused was not taken. The intent of the principal
offender and that of the aider or abetter must be the same. If the intent of the aider or abetter
falls short of being the same as that of the principal offender, he can be convicted of
manslaughter if the unlawful act in which he rendered assistance is to his knowledge likely to
cause harm short of death. In regard to the suffocation, the cause of death, there was no intent
demonstrated to cause death or bodily harm on the part of the accused. He was not a party to
the suffocation of the victim. As a matter of fact when the accused informed S. to stop choking __
the woman, he did serve notice on S. that he was on his own. He may have been a party to
what happened up to that point but resiled from any agreement or arrangement with S. and was
consequently not a party to the suffocation.

Accused's appeal was allowed
Acquittal was restored

-6OFFICERS ENTERING PRIVATE PROPERTY SURREYfITIOUSLY
TO VERIFY THEIR SUSPICION THAT MARillUANA WAS CULTIVATED
IN THE HOUSE -- SEARCH WARRANT OBTAINED ON BASIS OF THAT
VERIFICATION -- REASONABLE SEARCH AND SEIZURE
REGINA v. KOKESCH1 - Supreme Court of Canada, November 1990, 61 C.C.C. (3d) 207
Acting upon information from police on the lower mainland, a house on Vancouver Island was
kept under surveillance for four days. Not much was learned from this effort. In the evening
and under cover of darkness two officers walked 75 yards onto the property to where the house
was situated. They discovered that the basement windows where sealed and there was
condensation on the inside; a humming sound could be heard and a smell of marihuana came
from vents. This perimeter search was conducted strictly for the purpose of obtaining the
reasonable and probable grounds prerequisite to a search warrant under the Narcotic Control
Act. A search warrant was executed and plenty of evidence was found to support the charge
of cultivating marihuana. However, the trial judge considered the exploratory search illegal and
this had contaminated the search warrant. Consequently the search of the house had been
warrantless and unreasonable. The evidence seized was excluded from evidence.
The BC Court of Appeal allowed the Crown's appeal and ordered a new trial. It held that the
officers had at best, been petty trespassers when they did their exploratory "look-see". They
had not violated the accused's rights. The trial judge had not given sufficient consideration to
the common law of the exclusionary rule, as it was expressed in the Collini2 decision. Said the
Supreme Court of Canada in that case:
"Real evidence that was obtained in a manner that violated the
Charter will rarely operate unfairly for that reason alone".
The accused is to be tried again, ordered the BC Court of Appeal an~ he took this decision to
the Supreme Court of Canada (S.C.C.) for its opinion.
The S.C.C. decision was a majority judgment, with 3 of the 7 Justices dissenting. There is no
doubt that the exploratory search around the house of the accused at 2:00 a.m. amounted to
trespass. There simply was no authority to search. A warrantless search under the Narcotic
Control Act has reasonable and probable grounds as a prerequisite for it to be lawful. The

1

See Volume 30, page 31 of this publication for synopsis of trial results and Volume
33, page 42 for judgment of BC Court of Appeal

2

Collins v. The Queen - (1987) 33 C.C.C. (3d), Volume 27, page 1 of this
publication.

1

-7-

whole question hinged on whether the officers had such grounds. If they did have such grounds
the exploratory search was superfluous as those grounds are the same as those needed to obtain
a search warrant. Warrantless searches are unreasonable unless the Crown establishes otherwise.
One of the elements to prove that the search was reasonable is to show that it was lawful. When
cross-examined about the grounds or suspicions the investigators had for conducting their
warrantless search the officer testified, "I don't believe I had enough to get a search warrant to
enter the residence" ...... "I did not have reasonable and probable grounds that there was an
offence being committed. I had suspicion". When pushed that there surely must have been
more than suspicion for him to conduct the search the officer replied, "Well, I had more than
just suspicion. I had solid grounds, but not enough for a search warrant". At the beginning
stage of the cross-examination the officer was asked if he did have reasonable and probable
grounds to conduct the search. He started his answer with, "Your Honour, I believe .... " and
was cut off by defence counsel who wanted "an answer" preferably a "yes or no". This was the
Crown's case to support the exploratory search and consequently that is all the Courts had to
work with.
If the officer had an honest but mistaken belief that he could lawfully conduct the exploratory

search that does not cause him to act in good faith. The S.C.C. said that police cannot be
heard to say that they misapprehended the scope of their authority. They knew or ought to have
known that they were trespassing. The search was unreasonable and had infringed the accused's
right to be free of unreasonable search or seizure.
The S.C.C. did not see the trespass by the officers as a petty trespass. They entered private
property and searched the perimeter of a dwelling to discover what was inside even by
attempting to look inside the windows. There are stringent statutory provisions, which constrain
police from unwarranted invasion of privacy. These provisions are complemented by judicial
interpretations and common law. For police to test those limits and ignore the constraints is
unacceptable and cannot be condoned by the Courts. The Courts must clearly disassociate
themselves from such surreptitious practices by rejecting the fruits they yield. The majority of
four, felt that the administration of justice would suffer great disrepute if in a case like this, the
evidence was accepted.
The search by means of which the reasonable and probable grounds for the search warrant were
obtained was unreasonable. Consequently the evidence obtained by the search warrant was
gained in "a manner" that violated the accused's right to be secure against unreasonable search
or seizure.

Accused's appeal allowed
Acquittal restored

-8-

Comment:
This case and the Collins case seem, from a legal as well as from a police view point, to be
similarly flawed and should perhaps have been similarly remedied by the Supreme Court of
Canada. In the Collins case, police had rushed Ms. Collins in a pub and choked her. Her
mouth was clear but she had a balloon with heroin in her hand. When the officer who
conducted the search testified he was asked about grounds for his actions. He said, "We were
advised .... ". Defence counsel was on his feet objecting to any hearsay evidence that was likely
to follow. Although the officer by using "we" tried to testify to what people besides himself did
know, it was only the hearsay aspect that was objected to. The trial judge never ruled on the
objection and the issue got lost in the procedural shuffle. Needless to say the officer, to
establish his reasonable and probable grounds for the search was as an exception to the hearsay
rule, permitted to say what he (not we) was advised and what he knew. The absence of that
evidence meant that the crown failed to establish that the search was lawful and the S.C.C. had
to conclude that the officer had taken a flying tackle at Ms. Collins without any justification for
doing so. The Supreme Court of Canada ordered a new trial and expressed the hope that the
officer be given an opportunity to complete his testimony.
In my opinion, in the Kokesch case a similar flaw occurred. Other than testimony that, as a
result of a tip from the lower mainland, a truck was followed from the ferry terminal to the
Kokesch residence the evidence of what the officers knew when they conducted the exploratory
search was skilfully stifled by defence counsel. First (according to the transcript) the officer was
asked in cross-examination if he had only a suspicion or had reasonable and probable grounds
that an offence under the N. C. Act was being committed on the property. Perhaps Crown
Counsel should have objected at this point. Whether, what the officer knew, amounted to only
suspicion or reasonable and probable grounds is a point of law and for the judge to decide. The
officer's answer was not too bad as he said that it was a matter of opinion. Defence counsel
then solicited the officer's opinion on this point. The officer thought he had reasonable and
probable grounds to conduct the exploratory search and then botched it by saying that he did not
think he had enough to get a search warrant. Needless to say if he had the grounds to conduct
the warrantless search he had grounds to obtain a warrant. Then the officer was very
specifically asked, "Did you believe, ...... that you had reasonable and probable grounds to
believe that an offence had been committed on the property under the N.C. Act before you went
on the property?" The officer answered, "Your Honour, I believe .... " That is as far as he got.
When he was about to tell the Court what he believed, (the very thing he was asked) the defence
counsel interrupted (as he was possibly afraid of the answer) and said, "Can you just answer the
question, please, Constable?" The Court Reporter read the question back to the officer and
defence counsel then alluded to the officer taking his time and perhaps having trouble
understanding the question. He then demanded a "Yes or No" answer. The officer then said
to have had only a suspicion. Defence counsel for some reason not leaving his client's well
enough alone probed further and asked, "Surely, you must have suspected something to go

-9-

there?" The officer replied, "Well, I had more than just suspicion, I had solid 1:rounds, but not
enough for a search warrant. The officer's beliefs at the time were admissible in evidence; he
was asked what these beliefs were and was cut off when he tried to relate them to the court.
Defence Counsel opened a can with the label "worms". Before he determined whether there
were any worms in it he managed to get the lid back on. Like in the Collins case, the S.C.C.
should perhaps have ordered a new trial instead of restoring the acquittal.

- 10 THE ADMISSIBILITY AND USE OF VIDEOTAPED STATEMENTS
BY THE UNDERAGED VICTIM OF CERTAIN SEXUAL OFFENSES

REGINA v. MEDOOUI - 61 C.C.C. (3d) 345, Alberta Court of Appeal - November 1990
Section 715.1 C.C. provides that in any proceeding relating to certain sex offenses in which the
complainant was under 18 years of age at the time of the alleged offence, a videotape made
within a reasonable time after the alleged offence, in which the complainant describes the acts
complained of, is admissible in evidence if the complainant adopts the content of the videotape
while testifying. The law was proclaimed in 1988 and there is not much in terms of precedence
to give guidance to its meaning. Although it may seem quite complete and sim~le, the
enactment leaves many ancillary issues for the judiciary to decide. Particularly in the area of
evidentiary weight, or the meaning of the complainant "adopting" the content of the tape. For
instance, is the tape admissible in evidence as proof of the truth of its content; or simply as
proof that the statements were made; or to show previous statement consistent with the
complainant's testimony.
The accused was charged with sexually assaulting a child. Police video taped their second
interview with the complainant, two days after the events which amounted to the alleged assault.
The complainant gave unsworn testimony. She watched the tape in the accused's presence
during the trial and said that the statements she made were true. This was the extent of her
testimony. The accused was convicted and he appealed that conviction to the Court of Appeal
for Alberta on the following interesting grounds in relation to the use of the video tape in
evidence:
1.

The tape should not have been admitted as proof of the truth of its content. The tape
should only have been used to show that she had previously made a statement that was
consistent with her testimony. Only that testimony could, if accepted, prove facts.

2.

Two days after the event was not within a reasonable time as the section demands.

3.

The complainant did not "testify" as she was not sworn and was consequently not in a
position to adopt the videotaped interview.

4.

The interview resulted in unreliable statements as the interviewer had put leading
questions to the young complainant.

There are at least four different ways the new section can be interpreted in terms of its
application. The Alberta Court of Appeal searched for that application in light of the relevant
parts of Bill C. 34 (1988) in comparing it with; new approaches to testimony from children
adopted or considered in other western nations; academic papers on this topic; and our law of
evidence. The removal of the provision that unsworn evidence of a child needs to be

- 11 -

corroborated makes the issue of credibility very sensitive. Where it was believed in the past that
the evidence of a child was no more than a "Whim of a Moment" unrelated to past events, a
matter of reconciling the irreconcilable, now there seems to be a belief that young children can
distinguish fact from fiction and are, like adults, good or bad witnesses. Parliament must have
accepted this last theory as it, like the UK Parliament, repealed the rule about corroboration of
child witnesses.
The Alberta Court of Appeal held in essence:
"The child witness might adopt the statement made on the tape in
a sense less strong than recalling both it and the events discussed."
The Court dealt with the questions whether "adopting" the earlier video-taped statement,., means
that the child witness must recall the making of the statement as well as the events it relates and
must in addition confirm that what the statement says about the those events is true. The Court
rejected such a stringent application and held:
"The witness might adopt the statement in the less strong sense
that, whether or not she recalls the events discussed, she does
believe them to be true because she recalls giving the statement
and her attempt then to be honest and truthful."
The Court answered the following to the above listed grounds for appeal:
1.

The tests contained in this statement by the Court had been met and the tape can be
admitted as evidence in proof of the truth of the content. The weight of that evidence
is for the jury to decide;

2.

The law about "freshness" in the context of "past recollection recorded" applies and the
two day period explained above could be within "as reasonable time". (See explanatory
notes of this rule of evidence below).

3.

The verb "testify" commonly describes sworn and unsworn testimony. The new law
virtually extinguishes the legal significance between the two. Consequently for the
purpose of the section the girl had testified.

4.

A tape cannot be excluded just because the interviewer had asked leading questions of
the girl. However, such questions do affect the evidentiary weight of the answers to
those questions. The jury must be accordingly instructed.

The tape was admissible in
evidence.

- 12 -

Note:
The rule of "past recollection recorded" refers to a witness who has in some way recorded
events at a time that they were still fresh in his or her mind. Then, when the witness testifies,
and cannot recall a relevant event or detail he or she may refer to the record made of that event
or detail at a time when it was remembered. Without researching the details of the English case
in the early part of this century which gave birth to this rule, I do recall the following. A
tramway company had a dispute with a person who had been injured due to a faulty component
of a tramcar. That car had been safety tested shortly before the incident that had caused the
injuries. The inspector who had carried out the test, testified. He could not remember the
inspection but had completed the company form designed to carry out the test while he was
putting the car through its paces. This form was produced an4 the witness attested that he
always accurately recorded the results of each aspect of the test. His testimony was
consequently evidence that the car had been tested on the date and time recorded and that the
equipment functioned then as described by him on the form. Referral, by a police witness, to
his/her notebook for details not remembered when testifying but recorded at a time that they
were recalled, stems from this rule.
The Alberta Court of Appeal held that due to the content of s. 715.1 C.C. the videotaped
recording is distinguishable from the rule of "recent recollection recorded" in that it removes
the prerequisite that the child witness at the time he or she testifies, has no recollection of the
events recorded. In other words, even if the witness remembers the events without referring to
what has been taped, the tape is admissible for the truth of its content.

- 13 WHO MUST TESTIFY TO PROVE THE VOLUNTARINESS OF A STATEMENT

REGINA v. JAMES - BC Supreme Court, Victoria No 54942, November 1990
Four police officers searched a home and found narcotics that caused charges to be preferred.
The admissibility of evidence and particularly the statements the accused made during the search
became subject to a voir dire. When the first statement was made to two officers in a bedroom
the other two were in the livingroom. The Crown only called the two officers in the bedroom.
The defence argued that all four should have testified as to the general conduct of police during
the search. This was relevant to the admissibility of the statement he submitted.
One officer could only partially open a drawer. With the assistance of a flashlight he could see
plant like material and plastic baggies. He told the accused that if he was not provided with a
key he would break the drawer open. The accused responded "You might as well take it all",
and gave the officer the key. The officer to whom this second statement was made was the only
witness called on the voir dire, while two other persons were within hearing and two other
officers present in an adjacent room. It was not claimed that the officers could or did hear the
conversation in question.
The Supreme Court of Canada has ·held3 that to prove the voluntariness of a statement:
" ..... the Crown calls witnesses, normally the police officers to
whom the statement was made or given, and any other police
officers who might have been in a position to threaten or to offer
hope of advantage to the accused." (Emphasis is mine)
The BC Court of Appeal4 held likewise but elaborated on the meaning and application of the
rule that all persons around at the time must testify. It held that each case must be considered
on its own merits and circumstances. It is clear what the Crown must prove to show
voluntariness on the part of the accused. Said the Court:
"In different cases, the principle may require the production of all
or some or none of the persons in authority who were present
when the statement was made, or all or some or none of the
persons not in authority who were then present".

3

Eruine v. The Queen - 44 C.C.C. (2d) 76

4

Regina v. Wert - 12 C.R. (3d) 255

- 14 -

In relation to the first statement made in the bedroom to two officers, the Supreme Court Justice
held that all witnesses as required by the principle were called. The Crown did prove
voluntariness and the statement was admissible.
In regard to the second statement, again the witness required by the principle had been called.
However, voluntariness had not been proved. The threat of breaking open the desk drawer had
caused doubt as to the voluntariness of "You might as well take it all." The statement was
excluded from evidence.

- 15 THE UNDERCOVER "CELL MATE" - ADMISSIBILITY
OF STATEMENTS MADE BY ACCUSED WHILE INCARCERATED
REGINA v. GRAHAM - Ontario Court of Appeal, 62 C.C.C. (3d) 128. January 1991
The accused became the principal suspect in the murder of a woman. He was requested to
attend the police station. Two police officers interrogated him extensively and oppressively.
He was not made aware of his rights to counsel. The 8 hour questioning resulted in a confession
and the accused was arrested for second degree murder. The improprieties of this interview
were such that Crown Counsel at trial did not press for admission of the confession in evidence.
The day following the interview two other officers remedied all the mistakes that had been
made. They extensively made the accused aware of his primary and secondary rights and
insisted that he spoke to a lawyer. They assisted him in every way and accommodated him in
the exercise of those rights. The action of the second team of officers had impressed the trial
court and the relationship between them and the accused was labelled as "harmonious". Despite
police insistence however, the accused (other than speaking to duty counsel) did not engage the
services of a lawyer until 11 days later.
A week after the initial interrogation an under cover officer was placed in cells with the accused.
This Constable R. was to discover some missing evidence. The constable testified that it is
assumed that lawyers have advised prisoners to remain silent and not to speak to anyone and
therefore "we give the same appearance and tell the prisoners that we are not going to talk to
anybody". He said he also tells whoever wants to hear it in the cell block, that the place is
likely bugged and that there may well be a cop amongst them. Constable R. had done the same
with the accused and had even gone around looking for bugging equipment.
The only question Constable R. asked the accused was, "What are you in for". The accused had
answered," I made a terrible mistake and I'm in big trouble." Without any questioning the
accused told the story of his involvement with the murdered woman over and over again.
The accused was convicted of second degree murder and appealed this conviction. The evidence
of the statements the accused made to Constable R. were quite weighty and the Crown had the
Heberf decision by the Supreme Court of Canada as a threshold. In essence that Court had
held that the undercover officer, who, of course, objectively is a person in authority, does not
leave the suspect an informed alternative to speak or be silent. This had in the Hebert case not
offended the right to counsel or the right to remain silent but had deprived Hebert of his rights
to a process based on the principles of fundamental justice. Other binding decisions on this issue
the defence depended on were involving circumstances where police could not get information

5

Please read R. v. Hebert a decision by the Supreme Court of Canada on this issue.
Volume 37, page 16 of this publication - 57 C.C.C. (3d)

- 16 from an accused the formal way and gained it surreptitiously. These means were often merely
a continuation of the original questioning of the accused. Some of these were not "cell mate"
methods but sometimes other officers who processed the suspects through departmental booking
procedures or who transported them to the Court house or to places for medical examinations.
The defence claimed that the Hebert decision, which was handed down after the accused's trial,
caused the statements the accused made to Constable R. to be inadmissible and that the Court
of Appeal should consider whether the conviction could stand without the evidence they
contained. The defence also subtly suggested that there had been a strategy on the part of police
to extract the information from him. The initial interview in that scheme would have been
deliberately flawed, the second team played the "good guys" and laid the foundation for
subsequent statements to be admissible. This would be akin to the old "good guy, bad guy"
interview technique, but on a larger and more sophisticated scale. The defence claimed in
addition that all statements were obtained by a continuation of the original interrogation.
The Court of Appeal for Ontario held that the original statements by the accused were
inadmissible because at common law they were not voluntarily made and in addition, that they
had to be excluded under section 24(2) of the Charter due to the accused's right to counsel
having been violated. This, in law, made this case distinct from the Hebert case. Furthermore
there was no link between the misconduct of the officers who conducted the first interview and
the statements made to Constable R. in the cells some 10 days later. "Any taint had dissipated
and was not operable on the day in question", said the Court. The original Charter breaches had
been remedied and the aggregate of the police actions had not amounted to a stimulation
technique for the accused to talk.
The Court of Appeal in essence found that the Supreme Court of Canada (S.C.C.) in its Herbert
decision did not hold that the placing of an undercover officer with an accused in cells is per se
a taboo, either at common law or under the Charter. The Court of Appeal reasoned that the
S.C.C. had accepted the U.S. approach to the "cell mate" practice and that an accused must
show that the agent took some action beyond merely listening, that was designed to deliberately
elicit incriminating remarks. The simple "what are you in for," in response .to the accused
asking Constable R. the same question, was not an action to elicit information. Furthermore this
case was distinct from the Hebert decision as the accused did not at any time indicate he did not
want to talk to police. If such had been the case the argument that what could not be obtained
in a formal way was gotten by trick would have arisen. In general the Courts have held that
tricks are permitted but that dirty tricks are not. The latter are those which would shock a
reasonable community.
In the absence of any casual or temporal nexus between the initial improprieties and the cell
scene, the accused's statements made to Constable R. were admissible.
Accused's appeal dismissed
Conviction upheld

- 17 DEMAND FOR BWOD SAMPLE MADE UPON ORDER OF
SUPERIOR OFFICER - INVESTIGATING OFFICER DID NOT HAVE
PREREOUISITE GROUND TO MAKE DEMAND
REGINA v. FOWLER - 61 C.C.C. (3d) 505 - Manitoba Court of Appeal
On a clear evening the accused with two passengers in his car, passed a trailer truck and collided
head on with a motor cyclist going in the opposite direction. The motor cyclist was killed and
the accused as well as his passengers were injured. As a consequence the accused was convicted
of Criminal Negligence causing death and Impaired Driving causing bodily harm. He appealed
the convictions to the Court of Appeal for Manitoba.
Three officers had attended the scene of the accident, one of which was senior in rank to the
others. When a number of opened cans of beer were found in the car the senior officer had
instructed the officer who attended at the hospital to obtain a blood sample from the accused.
His instructions were that if the accused was not willing to give a sample voluntarily he was to
make a demand for such sample. The accused agreed to giving blood for the purpose of analysis
but the officer made a demand in addition. He said to have reasonable and probable grounds
for believing that the accused's ability to drive was impaired by alcohol as a prelude to the actual
demand. In testimony the officer said that there was nothing about the accused to suggest that
he had been drinking and candidly admitted that this prelude to the demand did not reflect his
belief about the accused's sobriety. Although the offer to give blood on the part of the accused
did meet the superior officer's objective, the demand was made as well for reasons one can only
speculate about. In any event, the making of the demand is a discretionary authority which is
original to each peace officer and is hardly subject to an order from a superior ranking officer.
This is particularly so where the officer who makes the demand does not have the prerequisite
beliefs. However, no issue was made of this when the accused argued that the result of the
analysis should not have been admitted in evidence during his trial.
It was conceded by the parties to the proceedings and the Court of Appeal that without the

evidence of the accused's blood-alcohol content (150 mg), there was insufficient remaining
evidence to substantiate guilt beyond a reasonable doubt.
If the officer had left well enough alone and had accepted the accused unhesitating willingness

to voluntarily provide a sample of his blood, the analysis would have been admissible in
evidence. However, the demand placed the issue in a totally different legal light. Firstly, the
suspect (the accused) went from being a free man who volunteered to surrender evidence to a
detained person who was compelled to supply the evidence. He needed to be informed of his
right to counsel. The Crown became obligated to show the officer had the prerequisite
reasonable and probable grounds to justify and validate the demand. The consent by the accused
to allow blood to be taken had immediately upon the demand been superseded - it (the consent)
simply had no significance any more. Finally, considering the officer's testimony that the
accused showed no signs of having consumed any alcohol or drug, caused his preamble to the

- 18 demand he made (I have grounds to believe your ability to drive is impaired by alcohol. .. etc.,
or words to that effect) to be a falsehood. He, the officer, was simply following orders while
the authority to make a demand was the officer's discretion and a power original to him. This
caused the giving of the blood sample the Crown relied on to prove the accused's blood-alcohol
level, a matter of coercion and an unreasonable search in the process in which the accused's
right to counsel was infringed requiring a judicial consideration if the admissibility of that
evidence would bring the administration of justice into disrepute. As this had not been
considered the Manitoba Court of Appeal .....

Allowed the accused's appeal
and ordered a new trial

- 19 ENTRAPMENT OF PERSONS NOT UNDER INVESTIGATION IN A
PLACE NOT KNOWN FOR DRUG ACTIVITIES - DERIVATIVE ENTRAPMENT

REGINA v. KENYON - Court of Appeal for BC - 61 C.C.C. (3d) 538 - November 1990

An undercover police officer approached W. in a pub and asked where and from who he might
get some weed. W. pointed to the accused and did buy for the officer, $250.00 worth of
Marijuana. The pub was not known to police as a place where drugs were sold neither were W.
or the accused suspected of trafficking. In other words, there was random virtue testing.
Neither W. nor the accused were under investigation and the pub was no house of ill repute in
regards to drugs changing hands or being used. This meant that the accused was entrapped and
was entitled when he was found guilty to have the proceedings stayed to avoid conviction. The
trial judge did stay the proceedings and the Crown appealed claiming that the entrapment was
derivative. The Crown reasoned that W. who gave the accused the opportunity to commit the
offence, or perhaps, induced him to do so was unwittingly an instrument of the police officer.
W. was not an agent of the police as he had no ideas that the person he was acting for was a
police officer.
The Court of Appeal for BC held that in these circumstances there is no distinction between
direct or derivative entrapment. The police were not conducting a bona fide investigation and
had randomly tested the virtue of patrons of the pub. The accused had been entrapped.

Crown's Appeal dismissed
Stay of proceedings to be
continued.

- 20 RIGHTS OF AN UNREPRESENTED ACCUSED BEFORE THE COURT

REGINA v. HARDY - Court of Appeal for Alberta - 62 C.C.C. (3d) 28, December 1990.
The accused was tried for assault and mischief. The matter arose from what appears a common
law or like relationship between the accused and the victim of the assault. The accused
represented himself and soon ran amok of the Court proceedings. His cross-examination of the
victim tended to solicit irrelevant past history of their relationship. The way he did put his
questions caused the trial judge to have to intervene and word the questions for him. The
accused was convicted and had to come back for sentencing five weeks later. This time he was
represented by counsel who submitted that the trial was unfair due to the Court having violated
the accused's Charter rights; (1) not to be deprived of life, liberty and security of the person
except in accordance with the principles of fundamental justice; (2) to be informed of right to
counsel when detained; (3) to be presumed innocent until proven guilty.
The accused filed an affidavit with the Court of Appeal for Alberta to say that he was engaged
to be married to the victim of the assault; that the victim had asked Crown Counsel not to
prosecute the accused; that he was not prepared to go to trial and was unrepresented as he
expected the Crown to withdraw the charges; that he was unaware that he was entitled to an
adjournment to obtain the services of a lawyer. The transcript of the trial corroborates that the
trial judge simply asked the accused, "You are representing yourself.... ?" and did not make the
accused aware of any options he had in this regard.
The Alberta Court of Appeal held that it is the duty of the trial judge, where the person to be
tried is unrepresented, to inform that person of - his right to counsel of the importance to be
represented to ensure a full answer and defence to the charges -- to ascertain clearly that the
person to be tried does not want to be represented. In other words there must be a clear waiver
of right to counsel.
The Court mainly based its reasons for so holding on the content of s. 7 of the Charter.
Although the Court did not say that an accused person is detained when he is before the Court,
it implied that his position is akin to it. The issue is not what procedures a police officer is to
follow when he detains a person but what is incumbent on a trial judge when an accused person
is unrepresented.
He or she must ensure that an accused who does not wish to be represented knows that he makes
an unwise decision. It is not necessary to make sure the accused knows the law in relation to
the evidence that will be adduced or the consequences of a conviction.

Appeal was allowed and a
new trial was ordered

- 21 POLICE RECOVERING PERSONAL PROPERTY OF ACCUSED UPON HIS
REQUEST AND IN THE PROCESS STUMBLING ONTO WEIGHTY EVIDENCE.
IF THERE WAS UNREASONABLE SEARCH AND SEIZURE IT WAS
INADVERTENT -- EVIDENCE ADMISSIBLE
REGINA v. BLAIR - Court of Appeal for BC, Vancouver CA 010392 - March 1991
The accused shot and killed the man he shared a house with. He was charged with second
degree murder. Police obtained a search warrant and searched the accused's home and sealed
it off with yellow tape warning the public to stay out. Two weeks after the murder the
accused's social worker asked police to tum some of the accused's personal property from the
house over to him (the accused). A detective collected the requested material and went through
it to make sure that it did not include some evidence that may have been missed during the
search. A letter addressed to a Joanne was found which contained both evidence of intent and
motive in relation to the murder. The letter was dated the day of the murder and in it the
accused declares his love for Joanne and tells her that he is "gonna" avenge the victim for
calling her a slut. Needless to say the letter (which the accused admitted writing on the date it
bears) was weighty in terms of evidence and without it the outcome of the trial may have been
different considering the remaining evidence. The accused was convicted as charged and
appealed claiming that the letter was discovered by means of an unreasonable search and was
consequently inadmissible.
The trial judge had agreed that the letter got in the hands of police by actions that violated the
accused's right to be free of unreasonable search and seizure but concluded that the officer who
complied with the accused's request had not consciously chosen this method of search.
Consequently excluding the evidence would bring greater disrepute on the administration of
justice than admitting it.
The Court of Appeal found that the Charter violation, despite its devastating results for the
accused, was not a serious one. The breach was inadvertent and no investigation was
specifically on course when it occurred.
The officer acted on the accused's request and these circumstances did not justify the obtaining
of a search warrant. Technically another warrant should have been applied for. In the
circumstances, police became aware after the fact, that a simple scrutiny of material to be turned
over to a prisoner, did result in discovering important evidence.
The trial judge had balanced all relevant factors in an appropriate way whether the evidence
should be suppressed or admitted. There was no improper conduct on the part of the police and
if there was a Charter violation, it was committed inadvertently.
Accused's Appeal dismissed,
conviction upheld

- 22 INVF.STIGATING OFFICER REFUSING TO INFORM DEFENCE
COUNSEL OF ms GROUNDS FOR DEMANDING BREATH
SAMPLES OF SUSPECT

REGINA v. SHERWOOD - BC Supreme Court, Vancouver CC901371 - April 1991

The accused ran a red light and was stopped 100 metres from the intersection. The officer
observed symptoms consistent with those of the consumption of alcohol and demanded breath
samples. The warnings were given and apparently understood. At the police station the accused
contacted the lawyer of his choice who testified at the accused's trial for failing to blow, (this
was not the lawyer who acted for the accused at his trial or appeal).
The accused had told his lawyer over the phone from the police station that he had been stopped
for running a traffic light and that he was under demand to give samples of breath. He
requested legal advice on what to do. The lawyer had taken the position that he was in no
position to give advice unless he knew the officers reasons and grounds for the demand. For
this purpose he requested to speak to the officer. The officer had declined to come to the phone.
The lawyer then asked his client to ask the officer for those reasons so they could be relayed to
him by the accused. He had heard laughter in the background but failed to get the information
he requested. Having taken the position that he was in no position to give proper legal advice
without knowing the basis for the demand, he had told the accused to let his conscience be his
guide. The accused had refused as a result.
The officer testified that he .had refused to speak to the accused's counsel as the information
required would be provided to Crown Counsel in a subsequent report.
At trial the defence counsel, argued that the officer's failure to speak to the lawyer or tell the
accused what his grounds were for the demand had thereby infringed the accused's right to
instruct counsel. The trial judge had acknowledged the importance to the advising counsel to
be aware of the information he requested to render his advise valid. He was of the opinion,
however, that the lawyer must render advise on the basis of the information his client gives him.
Thus the constable was not obliged to give his reasons or grounds for the demand to counsel.
There would have been nothing wrong with doing so, but it was up to the officer. The accused
was convicted of refusing and appealed on the basis of this very point.
The B.C. Supreme Court referred to a decision by the Supreme Court of Canada6 in 1989.
Although the circumstances surrounding the right to counsel in that case are quite distinct from
the ones in this case, our highest Court made some general statements about this right and used
the predicament of counsel as they were in this case as an example. It held that s. 10 (a) of the

6

Black v. The Queen - Volume 36, page 5 of this publication - 70 C.R. (3d) 97.

- 23 Charter sets the tenor of the right to counsel. It provides the right for an arrested or detained
person to be advised of the reasons for the detention. Unawareness of these reasons inhibits the
detainee to instruct counsel in a meaningful way. Counsel in such circumstances can only advise
his client that failure to comply is a criminal offence. This, said the Court, defeats the purpose
of the right to instruct counsel totally. In others words, making the accused's counsel aware of
the grounds and reasons for the demand is essential to ensure that the right to instruct counsel
and receive legal advice is meaningful and effective.
The BC Supreme Court held that failure on the part of the officer to provide the accused's
counsel with the reason and grounds for making the demand for breath samples, had deprived
the accused's right to counsel and rendered it a mere ritual, without significant meaning. The
accused was in immediate legal jeopardy and needed advise at that very moment whether or not
to comply with the demand. Informing Crown Counsel, who would then in tum make additional
information and details available to the defence is, in the circumstances, inadequate compliance
with the obligation upon police to inform a detainee "promptly" of the reasons for the detention.
As well as suppressing the evidence of the accused's failure to comply with the officer's
demand, the Supreme Court justice held that due to the infringement of the accused's right to
counsel the accused had a reasonable excuse to refuse to blow. He was confident, that had the
accused been provided with an opportunity to properly instruct counsel he would have complied
with the demand. The information counsel requested from the officer was not merely important
to render meaningful advice, but was due to the crucial point in time to decide whether to
comply with the demand, essential and needed.
Accused's appeal allowed
Conviction quashed.

- 24 -

ADMISSIBILITY OF ACCUSED'S CASUAL CONVERSATION
WITH A POLICE OFFICER
REGINA v. VAN HAARLEM- BC Court of Appeal, Vancouver CA011090 - May 1991

In a very remote area of BC, Mr. & Mrs. Bonnell lived in a cabin. They were involved in
mining gold. One afternoon when the husband had gone to a far-away neighbour to watch a
hockey game on TV. Mrs. Bonnell was visited by a masked gunman who demanded the gold
he knew was hidden in the cabin. Mrs. Bonnell was tied up and physically abused to force her
to tell where the gold was secreted. As this was to no avail the robber ransacked the cabin but
did not find the gold. He took some other valuables including firearms and left after planting
combustible material near the stove. The fire that resulted was extinguished by Mrs. Bonnell
despite the fact she was tied up.
The police investigation did apparently not surface any suspect until two years later when the
accused told a police informer (Mr. G.) that during an employment stint in the area where the
robbery took place, he had met the toughest old lady of his life. Even though he had tried to
break her fingers she had not told him where the gold was hidden. He also told how he had
burnt her. This and other circumstantial evidence renewed the investigation and resulted in an
arrest of the accused on charges of attempted murder, robbery, and unlawful confinement.
The accused was granted an interim judicial release. Among other conditions he was not to have
direct or indirect contact with any of the witnesses at his preliminary hearing. A RCMP officer
who had known the accused on a personal basis for some nine years, testified for the Crown at
that hearing. When the accused and his lawyers travelled home, they by sheer coincidence
stayed overnight in the hotel where the officer was also a guest. By chance the officer saw the
accused sitting in the lobby and had inquired "how are things going". The accused made the
officer aware of the condition of his release in regard to witnesses. The officer had replied,
"Fine. We don't have to talk about the case". For some time the conversation was about
personal things and the welfare of their respective families. This caused the officer to comment
how difficult it was for him and his family to be apart for the duration of the preliminary
hearing. The accused commented that he could have stayed home as his evidence had not been
admitted. He then said that he would have entered a plea of guilty if it was not for the informer
Mr. G. He just regretted putting Mrs. Bonnell through the stress of testifying. At the accused's
trial this exchange was adduced by the Crown and its admissibility became the kernel issue.
The trial judge held that the officer lacked malicious intent in that his actions were not ma/a.fide,
and he unhesitatingly held that the statement was voluntarily given. However, he had
considerable difficulty with the other aspects of the meeting of the officer and the accused and
the statement that resulted. The contact and conversation were in view of the judicial condition
of release simply unlawful. The right to counsel did not end until the conclusion of the trial and
he found that this right had been infringed. The evidence was suppressed and the accused was

- 25 -

acquitted on all charges. The Crown appealed to the BC Court of Appeal claiming that in the
circumstances there was no breach of the accused's right to counsel.
The Crown submitted that the trial judge had erred. The constable had in no way detained the
accused and the issue of right to counsel simply did not come into play. Defence counsel agreed
and said that his arguments during the trial were that the accused's right to silence had been
violated. Upon the Crown conceding that this was the issue, the appeal proceeded on that basis.
Defence counsel argued that in this case the Supreme Court of Canada decision in R. v. Hebert7
applied.
In that case an undercover officer was placed in Hebert's cell after he clearly indicated to want
to exercise his right to silence as he was advised to do so by his counsel. Inculpatory utterances
were made to this agent provocateur and the Supreme Court of Canada held that this had
violated Hebert's right to counsel. The accused's counsel argued that in principle this case was
not distinct from Hebert. The accused had in essence clearly indicated that he did not wish to
speak to the RCMP witness and yet their personal conversation had drifted to relevant
evidentiary topics. The only difference between the two cases is that Hebert was detained where
the accused was not under any restraints other than the binding condition of his release not to
contact any witnesses.
Defence counsel emphasized that the constable should have reminded the accused of his right
to silence and that due to the release condition the conversation was simply unlawful. The BC
Court of Appeal disagreed with both points. The accused volunteered the information and the
release condition was irrelevant to the right to silence. In other words the judicial imposition
was in the circumstances not the equivalent to the advice of a lawyer who told his client to
choose not to speak to authorities. The constable did not trick the accused nor did he actively
solicit information relevant to the allegation against the accused. It was the accused who steered
the conversation in the direction of his case and then he volunteered his views and what he
would have done if it was not for the informer Mr. G.
This left the BC Court of Appeal to decide if a new trial should be ordered. This depended on
whether the constable's evidence which was now admissible, could alter the verdict.
Identification evidence, the essential element of the Crown's case, was weak. Mrs. Bonnell
could not identify the accused due to his disguise at the time of the robbery and the informer
Mr. G.'s credibility was such that he was labelled a questionable and unreliable witness. The
constable's evidence directly relates to identify and is consistent with what the informer claimed
the accused said to him. Consequently the officer's evidence was cogent and could (if it had
been admitted) have been instrumental in the verdict being one of guilty.
Crown's appeal allowed
New trial ordered

7

R. v. Hebert - Volume 37, page 16 of this publication - (1990), 2 S.C.R. - 151.

- 26 -

Explanatory Notes:
In the Hebert decision the Supreme Court of Canada has attempted to explain some new rules
in regard to evidence and particularly statements obtained from an accused.
The Court emphasized that the .new rules are a compromise of the justifiable balance between
the interest of the State in law enforcement and the interest and rights of the suspect. The Court
pointed out that we have not adopted the absolute right to silence as is the case in some other
democracies. The "absolute" approach calls for suppression of all statements made to persons
in authority unless the right to silence has clearly been waived. The test whether the person the
subject speaks to one in authority is an objective one, meaning that whether or not the suspect
knew the status of the person he speaks to is irrelevant. If he in fact is a person in authority and
the prosecution cannot establish waiver on the part of the suspect, the statements are inadmissible
in evidence, this regardless of whether the officer is merely passive or elicits the statement.
This includes overheard conversation with fellow prisoners through listening devices and other
means of deliberate or inadvertent interceptions. The Supreme Court of Canada clearly rejected
this absolute approach and advocated an objective rule for statements evidence.
The court made it clear that the rule applies only to "after detention". The new approach to
"right to silence" does not extend to protection against police tricks in pre-detention periods.
This is consistent with the right to counsel which only applies upon detention. In pre-detention
undercover operations the person or suspect is not in the control of police. After detention
police have the responsibility to ensure the detained person's rights are respected.
When a detained person has retained counsel and is aware of his right to silence there is nothing
in our new rules preventing police from questioning the detainee in the absence of his lawyer
or without the latter's knowledge.
In such circumstances:
"Police persuasion, short of denying the suspect the right to choose
[whether to speak or remain silent] or depriving him of an
operating mind, does not breach the right to silence".

This, of course, does not include post-detention conversation in an undercover setting.

- 27 All through the reasons for judgment in Hebert the court emphasized that post-detention
statements must be predicated on the suspect's right to choose freely whether or not to speak to
authorities. However, this does not affect voluntary statements made to cell mates where the
police have not subverted the suspect's right to choose not to make a statement to authorities.
This, regardless of the cell mate's actual status, e.g.: a bona fide cell mate, a police agent or
informer, or an undercover police officer.
The court explicitly made a distinction between the cell-mate undercover approach where the
agent actively elicits information and where the agent passively listens to conversation or
becomes the recipient of volunteered unsolicited statements by the suspect. In the former case,
the suspect is clearly deprived of his right of choice whether to speak to authorities and this
practice does violate his right to remain silent. Police thus elicit by subterfuge something they
could not obtain by respecting the suspect's constitutional rights in a setting free of surreptition.
In the absence of eliciting behaviour on the part of police, there is simply no violation of the
accused's right to choose whether to speak to authorities.
In conclusion the Supreme Court of Canada was mindful of the kernel consideration for
excluding evidence under s. 24(2) of the Charter. It held that the exclusionary rule is not

absolute and reminded all concerned, that even where a violation of a detainee's right has been
established suppression of the statement made to the "cell mate" should not then automatically
be suppressed. The courts in addition must be satisfied that reception of the statement in
evidence would bring the administration of Justice into disrepute.
Said the Supreme Court of Canada about such consideration:
"Where the police have acted with due care for the accused's
rights, it is unlikely that the statements they obtain will be held
inadmissible".

- 28 -

ADMISSIBILITY IN EVIDENCE OF "ONE PARTY CONSENT"
INTERCEPTION OF PRIVATE COMMUNICATION BETWEEN A
POLICE SUPERVISOR AND A POLICE OFFICER UNDER INVESTIGATION
REGINA v. BOIVIN - BC Supreme Court, Vancouver CC900144 - April 1991

The accused, a police officer, was suspected of sexually assaulting women he encountered in the
course of his work. After an intensive investigation, he was charged with sexual assault,
robbery and unlawful confinement in relation to two women. The investigation methods
consisted of all hours surveillance, clandestine execution of search warrants on his residence and
police locker and the taping of telephone conversations the accused had with his supervisor. The
risk the accused constituted to the public, "having power as he did to stop people on the pretext
that the stopping had something to do with his police activities" caused the department to assign
considerable resources to this investigation and to effect an arrest as early as was legally
possible.
The accused had submitted a plan to investigate certain criminal activities he had become aware
of through an informer he considered reliable. This_project was suggested while the officer was
under investigation. Approximately a week later the officer had a Ms. S. in his police car which
was seen parked in an industrial area. Ms. S. was dropped off by the accused at her home,
around 5:00 a. m. As the woman was about to enter the building the police supervisor, who
was part of the surveillance team, approached her. He found her to be sobbing, frightened and
confused. It was obvious to the supervisor that something traumatic had occurred to her. When
he asked her if the accused had hurt her, she did not answer. The matter was turned over to
the other officers to investigate what was assumed to be a sexual assault.
A couple of hours after Ms. S. was dropped off at her home by the accused, he phoned the
supervisor to report on the progress of the proposed project. He reported to have spoken with
his informer who had apparently not added much to the information police already had. As an
aside, as it were, the accused told his supervisor that the informer had identified Ms. S. as a
hooker who had now entered the pimping profession. She carried, according to the informer,
a handgun belonging to either one of two policemen she regularly slept with. He suggested that
the vice squad should have everything there was to know about her. The gun had been used to
scare off competitive pimps and she had allegedly fired the gun once for that purpose. In a
second recorded telephone conversation the accused was asked in a round about way about his
activities the night before and what specifically he knew about Ms. S. He did say that he had
not seen Ms. S. for some time while it was known that he was parked with her the night before
and spent some considerable time with her. In general the account of his activities did not jibe
with what was observed by the surveillance team. Needless to say, the Crown wanted the tape
recorded telephone call accepted in evidence.

- 29 The accused claimed that the interception was an unreasonable search and seizure. The "one
party consent" provision is questionable in terms of constitutional proprieties8 ; furthermore did
the supervisor's conduct amount to a search or seizure of anything within the meaning of s. 8
of the Charter.
The Supreme Court trial Justice explored the provisions of the Criminal Code's "Invasion of
Privacy" sections. The definition of "intercept" that applied in these circumstances is:,
"Intercept includes ......... acquiring the substance meaning or purport thereof." The definition
of "private communication" in this case, ........ "means any telecommunication made under
circumstances in which it is for the originator thereof to expect that it will not be intercepted by
any person other than the person intended by the originator thereof to receive it." The Court
held that the telecommunications were neither private nor, in the circumstances were they
intercepted . .
The accused had phoned in relation to his "project". He was anxious for it to go forward as it
meant, "a large feather in his cap" should it succeed. He was fully aware that the decision to
proceed would be made by other superior officers and the members of the undercover team.
Consequently the accused did not give information meant for the supervisor's ears only. He
wanted it disseminated to the decision makers and the investigators. He wanted all to "acquire
the substance meaning and purport of his communication". He therefore had no reasonable
expectation that what he said would not be intercepted by any person other than the supervisor.

Tapes admitted in evidence

8

R. v. Duarte - Volume 36, page 1 of this publication and 53 C.C.C. (3d) 1.

- 30 THE "ONE-MAN LINE UP" CONDUCTED BY THE VICTIM:'S MOTHER
WITH POLICE ASSISTANCE- POLICE TRICK TO OBTAIN ADMISSION THAT
INCRIMINATING PROPERTY IS OWNED BY THE ACCUSED

REGINA v. SWAN - BC Court of Appeal, Victoria CA V01045 - May 1991
The accused broke into a home during early morning hours and made a serious attempt to have
intercourse with a teenage girl. He had forced himself on the victim who was asleep at the time
he entered her room. She got away from the accused despite him holding scissors to her throat.
She screamed, and woke up the rest of the family. The accused got away via patio doors. The
police dog found a belt presumably owned by the assailant, near the edge of the property.
Approximately two weeks afterwards the girl's mother heard noises in the middle of the night
which she assumed were made by a person who was trying to break in. When police searched
around the house they found the accused lying under the window on the inside sill of which his
prints were found. The mother called her daughter, (the victim of the sexual assault) and told
her to take a look at the accused as he laid on the ground. She said, "Mom, it's him, it's him.
Take me inside". The police had assisted in this one man line-up by shining their flashlights on
the accused. The accused was then arrested.
The belt the dog found on the premises was placed among the accused's personal effects when
he was released. Without hesitation he had put the belt on. He was then casually asked if that
was his belt and he answered that it was.
A jury convicted the accused of break and enter and committing the indictable offence of sexual
assault and with break and enter for the second occasion. This time with the intent to commit
an indictable offence. He appealed both convictions claiming that the one-man-line-up was
inadequate and inadmissible. He also claimed that the belt evidence was inadmissible as it had
been obtained by a police trick.
The BC Court of Appeal agreed that the one-man-line-up was improper police procedure. Police
should not have allowed the victim to look at the accused for the purpose of identifying the man
who sexually assaulted her two weeks before. In the circumstances (the accused caught in the
act of trying to break and enter into the home; mother waking the girl up to see if this is the
man who assaulted her and the accused being in police custody), made her identification of this
man not the most reliable. However, there was additional identification evidence. This coupled
with the trial judge cautioning the jury about the danger of such identification practice, there was
no need for the Court of Appeal to hold that the evidence was such that a jury was not entitled
to find that identification had been proved beyond a reasonable doubt.
The evidence of the accused admitting that the belt was his, should have been suppressed
according to the defence counsel. At the time the accused made the admission he was detained

- 31 and the statement was elicited from him. This according to the Hebert decision9 by the
Supreme Court of Canada, amounts to a breach of the detainee's right to remain silent. In
essence counsel argued that the trick was in law the equivalent of the cell-mate approach to
obtain evidence by questioning the accused without him having the choice whether to remain
silent. Although it seems that this argument, considering the circumstances, may have failed,
the Court did not rule on this "interesting issue". This due to other evidence that established
the accused's ownership of the belt.
In relation to the second charge of break and enter, the Crown relied on the provision in the

Criminal Code that in the absence of evidence to the contrary, it may be assumed that the person
breaking in intends to commit an indictable offence. Drunkenness has been held to provide
evidence to counter such intent. This had not been explored as no such instructions were given
to the jury.
Accused's appeal on Count 1
was dismissed and conviction
was upheld.
Accused's
appeal on Count 2 was
allowed and new trial was
ordered.

9

Volume 37, page 16 of this publication - 57 C.C.C. (3d), June 1990.

- 32 CONSTITUTIONAL VALIDITY OF VAGRANCY SECTION
APPLICABLE TO CONVICTED SEX OFFENDERS MEANING OF LOITERING - TIIE REQUISITE MENS REA

REGINA v. HEYWOOD - Supreme Court of BC, Victoria No. 52988-C, May 1991
The vagrancy section of the Criminal Code of Canada creates a summary conviction offence for
convicted sex offenders to "loiter" in or near a school ground, playground, public park or
bathing area. This includes sex offenders who have paid their debt to society. On the surface
the section prohibits these persons from hanging idly about, moving slowly, or lingering in or
near the above mentioned public places, even when their intentions in regard to their conduct
is innocent. Despite the connotation in criminal law, loitering is something all of us do when
we kill time for whatever reason. Our malls and parks are filled with loitering persons whose
intent is precisely to do so. One can imagine the apparently valid arguments that can be raised
to say that section 179 (l) (b) C.C. is inconsistent with our Charter and therefore without any
force or effect. The section seems to blatantly violate s. 7 of the Charter the applicable portion
of which guarantees us a right to "liberty" and the right not to be deprived thereof except in
accordance with the principles of fundamental justice. Another section of the Charter this
loitering offence seems to run afoul of is the presumption of innocence [s. 11 (d)].
In 1978 the Supreme Court of Canada categorized or subdivided if you will, our offences created
by Statutes10 (there are in Canada no common law offences save contempt of court). In respect
to offences that are criminal in nature, an essential element the Crown must prove beyond a
reasonable doubt is that the criminal act was committed intentionally or recklessly. Does that
mean that a convicted sex offender who knows that it is a crime for him to loiter in specified
public places and does purposely do so, has now intentionally committed a criminal act? That
would be the case if the offence was one of strict liability. There the Crown need_ not prove
existence of mens rea. The defence to such an offence is reasonable care to avoid the event;
or where there was reasonable belief in a mistaken set of facts which, if true, would render the
act innocent.
The strict liability offence category is for regulatory measures mostly. Nearly all provincial
offences are of strict liability unless the wording of the enactment indicates differently, e.g.:
where the words like knowingly or wilfully are used to indicate the requisite mind set of the
offender. Offences of strict liability are not found in the Criminal Code and all have mens rea,
negligence (advertence) or recklessness as an essential element for the Crown to prove. That
criminal intent must not be an intent to do something the law prohibits but to commit the
gravamen of the offence; that is the unacceptable behaviour the law forbids. To enhance the
attack on the constitutional validity of the vagrancy subsection, the defence argued that the
offence is akin to one of strict liability as there is no criminal intent included in the essential

10

The Queen v. The Corporation of the City of Sault Ste. Marie (1978) S.C.R. 1299.

- 33 elements of the offence. If you are a convicted sex offender and you loiter in a public park to
watch the ducks, then you have committed the offence. In July of 1988 a BC Provincial Court
Judge11 apparently interpreted the section that way and held that it offended s. 7 of the Charter
in a way not demonstrably justified in a free and democratic society. Consequently he declared
the section to be without force or effect.
The accused Heywood had previously been convicted of sexually assaulting two young female
children. In June, 1989, he was spotted in Victoria's Beacon Hill Park on the children's
playground taking pictures of young girls playing on the gym apparatus. A constable made him
aware of the loitering offence under the vagrancy section. The accused did not take kindly to
being accosted and said he was free to go where he pleased. The officer advised the accused
to seek advice on the matter from his probation officer. This he did and the court was told that
the probation officer had not been aware of any law preventing him ·from attending the park but
had added, "Don't be stupid. Don't go in the middle of the playground and play with children".
A few weeks later the accused was back taking pictures of little girls. He was arrested for
loitering and the content of his camera, photographs seized at the developer's, and those found
at his home clearly indicated the accused's objective. All the pictures were of girl's crotches
exposed when playing on the playground apparatus. Whatever else was in the pictures was of
no significance to be the target of his lens. The accused, however, claimed that it was clear
coincidence that the centre of each photograph was a girl's crotch. He claimed that photography
used to be his hobby and he had taken candid photographs to capture the energy and vitality of
these children. He had not intended any sexual connotations and had only now become aware
of the coincidental indelicate positions in which he had captured these girls. He was not
believed.
In the Provincial Court the accused raised the same issues as Alfons Graf. The accused's mere
sauntering presence in a public park constitutes an offence for only people, like the accused, who
have been convicted of a sex crime. This restriction upon them is not part of any sentence, but
one imposed by statute. The defence counsel urged that the Provincial Court trial judge would
hold like his colleague in the Graf case. Needless to say this decision was not binding on the
trial judge and he obviously disagreed with it.
The trial judge held that there is a criminal gravamen to the loitering section. He found that
innocent loitering was not included in the offence and that it required a "malevolent" intent; in
other words a criminal intent is an essential mental element. The dictionary definition of
loitering only defines the physical activities. That by itself is inadequate to give the section a
remedial propose in regards to criminal behaviour. A Parliamentary committee when dealing
with this section deliberately removed the word "wandering" and clearly indicated that it was
cognizant of the pre-dispositions of sex offenders and the very high rate of re-offending.

11

R. v. Alfons Graf - unreported

- 34 -

Therefore, the mens rea (criminal intent) the previously convicted loiterer must have is one
connected with that criminal pre-disposition. Loitering for the purpose of "watching the flowers
grow or ducks swim" is inadequate.
The Crown had shown such malevolent behaviour on the part of the accused in this case. The
trial judge held in addition that the section nonetheless violates s. 7 of the Charter but found that
with mens rea as an essential element of the offence, it is "demonstrably justified in a free and
democratic society" (s. 1 of the Charter).
The accused appealed his conviction for loitering to the BC Supreme Court and claimed for
purposes explained above, that malevolent intent is not required. Should the Court reject this
submission then he claimed that the trial judge erred in finding that the evidence showed
malevolence. The Supreme Court rejected both arguments. The evidence clearly showed
malevolence and due to medical expert evidence "as to the character traits, propensities and
factors which trigger sexual activity on the part of those who have history of sexual offenses"
Parliament had enacted the legislation for reasons demonstrably justified in our society despite
it violating s. 7 of the Charter.
Accused's appeal dismissed
Conviction Upheld
Note: There are two additional interesting aspects to this case. The trial judge had allowed
evidence from an official who conducted hearings across Canada for the Federal Justice
Department and had advised the government on the legislation that included this loitering
section. He explained the consideration that had been given this issue and why it was
recommended for enactment. This to show the justification for this section under s. 1
of the Charter. Such "extensive material" for the purpose of consideration in
constitutional adjudication are usually excluded or should not be given too much
weight12 • The Courts must determine the meaning and purpose of legislation by the
wording of the enactments that clearly indicate their object. Law must not be vague and
receive a broad and liberal interpretation to meet its object (Interpretation Act).
Secondly, quite contrary to the rules regarding adducing fresh evidence upon appeal the
Supreme Court Justice allowed the accused (who had remained silent at his trial) to
testify. This, the Court said, so evidentiary foundations for his constitutional arguments
could be laid. The Court seemed anxious not to create a precedent in this regard. It
seems likely that the Court also did bend the rules to get this somewhat pressing issue
out of the way. However, the latter is total conjecture on my part.

12

Supreme Court of Canada in Reference : s. 94(2) Motor Vehicle Act (1985)
24 DLR (4th) 536

- 35 THE DILEMMAS AND OBSCURITIES OF OBTAINING
BWOD SAMPLFS FROM IMPAIRED AND/OR UNCONSCIOUS
SUSPECTED IMPAIRED DRIVERS
THE QUEEN v. DYMENT - Supreme Court of Canada, December 198813
REGINA v. LUNN - BC Court of Appeal, December 199014
REGINA v. DERSCH - BC Court of Appeal, May 1991
Police frequently encounter circumstances where suspected impaired drivers have caused death
or other devastation and did not escape injuries themselves. The Criminal Code of Canada
provisions do not always fit the circumstances police encounter. This combined with
misconceptions of these provisions and the conflicting interests between police objectives, ethics
of the medical profession and the reasonable expectation of privacy on the part of the suspect,
leaves a legal minefield for all concerned.
Mr. Dyment suffered head lacerations when he drove his car off the road. He was at all
relevant times unconscious. Other than the familiar smell of alcoholic consumption there were,
of course, no symptoms of impairment noticeable. The helpful and cooperative doctor caught
some of the blood Mr. Dyment was spilling and turned the vial over to the investigating officer.
The analysis supported a conviction of "over 80 mlg". This case, with all the legal issues
imaginable ended up in the Supreme Court of Canada. It found for Mr. Dyment and held that
the "seizure" of the blood was a violation of s. 8 of the Charter. Considering the sole objective
of the hospital and the doctors, Dyment had an expectation of privacy, not only in respect to his
person but also in relation to "information". The doctor had joined the "enforcement
machinery" and had breached Dyment's privacy interest.
On the surface it seems that the Dyment decision slams the door on obtaining a blood sample
other than by means of the statutory demand or warrant. The Chief Justice stated in his reasons
that there had not been an urgency or any other pressing reason to take the blood from Mr.
Dyment without first obtaining a warrant. ... "assuming, of course, that the police officer, after
having spoken to the doctor, could bring himself within the conditions required for obtaining a
valid warrant." Much had been made of medical ethics involved and it was the Court's view
that information from hospitals and doctors ought not to be revealed to law enforcement agencies
unless the reason is compelling and urgent because of necessity.
The Supreme Court of Canada held that the results of the analysis of the "caught" blood were
inadmissible. Although there was no search involved there had been a seizure. Section 8 of the
Charter protects us from unreasonable search or seizure. This had left the question of

13

DYMENT - Volume 34, page 24 of this publictaion [1988], 2 S.C.R. 417

14

LUNN - Volume 38 page 25 of this publication - Not reported.

- 36 -

reasonableness. The Court held that Mr. Dyment, while in the hands of professional doctors
is entitled to believe that whatever substance is taken from him is for his benefit and exclusively
for medical purposes. Consequently the seizure had been unreasonable.

Mr. Lunn was apparently in a highly intoxicated condition when he sideswiped an oncoming car
and slammed into a rockbluff. His wife was instantly killed. The investigating officer was
under the impression that the demand for blood as well as the taking of the sample must be done
within two hours from the time of driving. As it took some time to get Lunn out of the smashed
vehicle, no demand was made. The blood sample for medical purposes was not taken until four
hours after the accident.
The officer discovered from the pathologist that in compliance with hospital policy blood
samples are kept for a period of seven days. Upon an elaborate deposition a search warrant was
issued and the blood sample was seized. Analysis and calculations showed a blood-alcohol level
of .33 at the time of the accident.
The doctor's role ii1 the case had been no more than relating hospital policy to the police and
that did not make him "an agent of the state" and incapable of violating any of the accused's
Charter rights. Consequently the case is distinct from Dyment as in that case the officer had
requested and accepted the blood sample the doctor "caught".
Defence argued that the "demand" route had been open to the officer from the beginning. In
view of specificity of the law that was the only means available to him in the circumstances.
Despite the officer's misconception of the law, which had caused this somewhat unusual
procedure, there was nothing that would justify suppressing the evidence, held the BC Court of
Appeal.

Mr. Dersch collided head-on with another car and caused death. He was taken to hospital by
ambulance suffering from closed head injuries which caused him to slip in and out of
consciousness. Before the officer got to see the accused the doctors attempted to take samples
of his blood strictly for medical purposes. Dersch told them in the strongest language that he
did not want any blood taken. The officer who subsequently made a demand of the accused for
a blood sample was told in the crudest of language that he would not get any.

- 37 After the officer left the hospital and while the accused was unconscious, an "unsuspecting"
surgeon happened by and he was asked by the officer to take some blood from the accused. He
did. Later, upon the assurance that it was exclusively for medical purposes and that the officer
had left, the "attending" doctor gained consent for more blood being taken.
A few days later the officer phoned the "unsuspecting" surgeon and, upon him confirming that
he had blood from the accused, was told he had to testify to this at the accused's trial. Then
the officer phoned the "attending" physician and made a "formal" request for the medical report.
This doctor in the belief that he had to comply, handed over that report on the accused. This
report and the officer's opinion, made for the grounds upon which a warrant was issued.
Execution of this search warrant resulted in the seizure of three vials of blood which contained
ample evidence to conclude the accused was impaired at the time of the accident. A jury
convicted him of criminal negligence and impaired driving causing death. The accused appealed
the conviction to the BC Court of Appeal.
The BC Court of Appeal ruled that in the circumstances neither one of the doctors was an agent
of the State (Sees. 32 Charter). Needless to say, the "attending" doctor's belief that he was
obliged to comply with the police request for the medical report was wrong. As a matter of fact
his action was contrary to the standard of ethics adopted by his own professional College, as
well as that of the BC Health Association. The kernel question was whether the accused's right
under s. 8 of the Charter (to be secure against unreasonable search or seizure) extends to his
right to privacy with respect to the confidentiality of the contents of his medical records.
In principle, this case is not distinct from the Dyment decision. To say that the events were
different as there was a warrantless seizure of blood in Dyment and the taking of a medical
report in this Dersch case, would be wrong. In principle, in both cases something was taken
inappropriately for the purpose of incriminating the accused.
Firstly, it should be noted that the Supreme Court of Canada did not say in Dyment that the
hospital cannot give information to police. Said the Court of Appeal for BC:

" ... .it is one thing to inform, quite another to supply material
which, if used amounts . . . . . to conscripting the accused against
himself."

In Dyment the S.C.C. said that after having spoken to the doctor the police could have brought
themselves within the required conditions to obtain a warrant.
It was legally proper for the doctor to say (as he did) that a blood sample was taken and that it
was still in possession of the hospital. That information together with the observations made by
the officer about Dersch' s lack of sobriety may have been sufficient to get the warrant to seize

- 38 that blood sample. However, the doctor's confidential report, was an important factor in the
issuance of the warrant. That report was obtained by police through a breach of Dersch' s right
to be free from unreasonable seizure. It was not the doctor but the police who violated that right
and it contaminated the validity of the warrant.
What further aggravated the issue, is that the ill-gained report also gave the Crown the necessary
grounds for subpoenaing the doctor and the lab technicians.
The medical report was not part of the evidence against the accused but the evidentiary fruits
from it was so used. As this evidence would have been available without infringing Dersch's
right and would undoubtedly have been discovered in a properly conducted investigation and
trial, the BC Court of Appeal was unanimously persuaded that admitting the evidence despite
the infringement of Dersch's right, would not bring the administration of justice into disrepute.

Accused's appeal dismissed
Convictions upheld

- 39 -

FORCED ENTRY OF HOME TO EFFECT THREE ARRFSTS AND PREVENT
DESTRUCTION OF EVIDENCE - JUSTIFICATION AND
PROPRIETY OF POLICE ACTION - ONE ACCUSED ACQUITTED IN
PROVINCIAL COURT-APPLICATION OF "RES JVDICATA"
REGINA v. KASEL AND MERIDETH - BC Supreme Court, Vancouver No. C.C.901322,
February, 1991
Police conducted a warrantless search of a residence they forcibly entered. There were three
occupants. One was tried in Provincial Court for the resulting charges related to the cocaine
found in the home and the other two persons selected trial by the Supreme Court. The
Provincial Court found that the search was unreasonable and dismissed the charges against the
one party. When the trial opened for the other two in Supreme Court defence counsel urged that
the charges should be dismissed for them as well. After all, "What is justice for one shall be
justice for all". The Crown opposed this motion and claimed that such a dismissal would be
premature as the evidence against the two accused should be heard and tested to see if the
findings of fact in their case would be different from those in Provincial Court. The Supreme
Court Justice agreed with the Crown's position.
The original target of the police investigation had been a physician who had a police agent as
his patient. This agent had previously purchased cocaine from him. When the agent upon
instructions of police had attempted to buy cocaine again from the doctor, he had told his patient
that he did not have any at this time but gave him the phone number of one "Leon" who could
fill his order. The telephone book known as the cheater revealed that the number belonged to
the accused Leon Kasel. A police officer was given a number of twenty and ten dollar bills
which had been photocopied. He approached the accused Kasel pretending to be one of the
doctor's patients. This was done by means of two telephone calls. The first one was answered
by Kasel and the second by the accused Merideth. Both were identified by distinct voice
intonations. The conversation had included jargon of the cocaine trade.
The officer kept the appointment at the accused's address for the purchase of cocaine. The
officer was let into the home and the transaction took place. He paid with the photocopied bills.
The officer had an eerie feeling that the men in the house suspected him of being a police officer
or agent and he reported this by radio to the investigative team that was on stand by in the
vicinity of the house. He, of course, also reported that the purchase was completed as planned.
Pretending to have left his pager somewhere in the house the officer attempted to be let in. The
team was then to follow and conduct a search. This failed and fearing that evidence was being
destroyed the front door was rammed open by team members, who then entered yelling "Police".
The accused Merideth was immediately arrested in the hallway as well as Shabbits, who was
tried in Provincial Court as mentioned above. The sound of a toilet flushing took police to the
bathroom where they found the accused "Leon" Kasel standing over the toilet. As he was the
one who the agent had been referred to by the doctor and who had apparently supplied Merideth

- 40 with the cocaine sold to the police officer, he was arrested for trafficking in a narcotic. His
person was searched the photocopied money was found in Kasel's pocket along with a plastic
bag containing 23 grams of cocaine. The house was then secured and a search warrant was
obtained. The forceful entry without warrant had the exclusive purpose to effect the arrests and,
of course, to prevent destruction of evidence, according to the police testimony.
Firstly, the Supreme Court held that it was not precluded to try the two accused and relevant
issues as particularly the latter had already been adjudicated in the trial of Shabbits in Provincial
Court. This not because that court is inferior to the Supreme Court but simply as the persons
prosecuted were not the same person as the one prosecuted in Provincial Court. In other words,
the trail of Merideth and Kasel was an original prosecution and the principle of res judicata
(previously judicially decided) did not apply. Whether or not the ramming of the door caused
an unlawful entry in the circumstances and if there was "an appalling lack of evidence"
(according to the Provincial Court judge) needed to be decided on the basis of the evidence there
was at the end of the trial in the Supreme Court.
The officers had, without doubt, the reasonable and probable grounds to arrest the accused for
the indictable offence of trafficking in cocaine. The Court relied on the decision by the Supreme
Court of Canada in 1986 regarding effecting an arrest without warrant in a dwelling house where
police entered without invitation or judicial licence15 • It also referred to the well known case
on this issue, Eccles v. Bourque16 , which was a civil process where officers had entered a home
without warrant in which they believed a wanted person was holed up. If the grounds for an
arrest exist a home or other private property is no sanctuary.
Being aware that our law is zealous to protect citizens from unwarranted intrusions by police,
it does not impose a blanket prohibition against warrantless entry. As the facts were in this case
the entry and arrests were justified.
The defence also questioned the propriety of the search of Kasel and the seizure of the bait
money and the cocaine he had on his person. The Court relied here on the recent decision by
the Supreme Court of Canada17 that a frisk search is incident to lawful arrest. Defence counsel
argued further that a frisk search is just a patting down to ensure the prisoner is not armed. "In
the name of common sense" a suspicious bulge authorizes the arresting officers to remove the
object causing the bulge. The removal of the bait money and the cocaine from the accused's
pocket was justified in the warrantless search responded the Supreme Court Justice.
Evidence was admitted and accused found guilty
lS

Regina v. Landry - Volume 23, Page 7, of the publication - 25 C.C.C. (3d) 1.

16

(1974) 19 c.c.c. (2d) 129.

17

Cloutier v. Langlois - Volume 37, page 5 of this publication - 53 C.C.C. (3d)
257.

TIDBITS

- 41 -

DISTINCTION BETWEEN ASSAULT CAUSING BODILY HARM
AND AGGRAVATED ASSAULT
The accused and her girlfriend were in a bar. The accused was physically harassed by a man.
She had asked him to "smarten up" and had glared at him when he continued to bother her. The
girlfriend sensed the tension and persuaded the accused to leave with her. On her way out the
accused was again bothered by the man and she emptied a glass of water in his face. He
countered by emptying his beer glass on her. The accused then struck the man with the empty
water glass. The glass broke and cut his face. Twenty stitches and permanent scarring were
the results. The accused was acquitted for lack of intent to commit an aggravated assault. Her
action had been no more than a reflex that by accident caused wounding and disfiguration. The
Crown appealed to the Court of Appeal for New Brunswick, which pointed out the distinction
between assault causing bodily harm and aggravated assault (sections 267 and 268 respectively).
Assault causing bodily harm only requires the Crown to show an intent to assault and that the
bodily harm was a consequence of that assault. In other words the causing of bodily harm does
not need to be intended. However, aggravated assault by means of which someone's life was
endangered, or wounds, maiming or disfiguration was caused requires the · Crown to prove
intent, not only to assault but also to cause any of these consequences. The Court of Appeal
agreed with the trial judge, that the accused had no intent to assault in a criminal sense.
Consequently she could not be convicted either of the included offence of assault. Crown's
appeal was dismissed.
Regina v. Pari§h - Court of Appeal for New Brunswick - 60 C.C.C. (3d) 350, September 1990.

* * * :e: *
ONLY IBE INTENT TO USE A KNIFE AS A WEAPON CAN
TRANSFORM IBIS BUTCHER'S IMPLEMENT INTO A WEAPON
Police officers investigating a break and entry, attended at a convenience store where they
encountered the accused and a companion. The companion was arrested and articles (apparently
proceeds of the break and entry) were seized from him. When attention was paid to the accused
the blade of a knife was seen protruding from his jacket. The blade belonged to a large butcher
knife that was covered by the accused's clothing. The officers also found a pair of gloves and
a screwdriver on the accused. He was convicted of carrying a concealed weapon. The trial
judge held that the knife could be used as a weapon and therefore was covered under s. C.C. 's
definition of "weapon". The accused appealed his conviction to the Court of Appeal for Nova
Scotia. It held that the trial judge's finding that the knife could be used as a weapon was
inadequate to support the conviction. What had not been addressed was the essential element
of the offence that the accused carried the knife with the intent to use it as a weapon when the
occasion arose. In the circumstances such an inference may well be drawn. As the ·issue had
not been resolved during the trial, a new trial was ordered.
Regina v. Roberts - Nova Scotia Court of Appeal 69 C.C.C. (3d) 509, November 1990.

- 42 -

OBSTRUCTING JUSTICE BY INTERVENING
IN THE PROSECUTION OF A FRIEND

A lawyer was charged with shoplifting from "Superstore". The manager of the store's security
was approached, among others, by the accused who claimed to be the lawyer's friend and
business partner. There were several meetings between the two men. On one occasion both
were wearing body-packs to record every word spoken. The accused offered $20,000.00 for
not testifying against the friend, or better, seeing to it that the charge was dropped. The money
could either go on behalf of the store to a charity or could be used for a promotion, suggested
the accused. He assured the security manager that he was doing this without the knowledge of
his friend and would not seek to be reimbursed by him. The accused had sought legal advice
from a lawyer (not his friend) who had told him that what he did was not an offence, as long
as the donation would go to charity not in the name of the Superstore. Despite the advice not
to offer any payment to Superstore or any donation in the store's name the accused went ahead
as related above. He was convicted of obstructing justice by intervening in his friend's
prosecution by offering an inducement. He unsuccessfully appealed his conviction to the Court
of Appeal for Alberta.

Regina v. Kotch - 61 C.C.C. (3d) 132. Alberta Court of Appeal, November 1990.

*****
PROTECTING IDENTITY OF INFORMER CROWN STAYING PROCEEDINGS TO PREVENT OFFICER FROM
HAVING TO ANSWER QUESTIONS ON IDENTITY

During the accused's trial for conspiracy to traffic in narcotics the investigating officer was
questioned why a certain arrest had been effected. The answer to this question would inevitably
have identified a police informer. The prosecutor objected but the trial judge allowed the
question. Instead of allowing the officer to answer the Crown stayed the proceedings only to
recommence them before another judge a short time later. The same line of questioning by
defence counsel occurred. The second trial judge disallowed the question. The accused was
convicted and appealed unsuccessfully to the Ontario Court of Appeal. He then went to the
Supreme Court of Canada claiming that the Crown had abused the process of the Court. The
S.C.C. (in a 5 to 4 decision) dismissed the appeal. What the Crown had done was not abusive.
Police informers must not be identified.

Scott v. The Queen et al - 61 C.C.C. (3d) 300. December 1990.

- 43 -

POLICE OFFICERS ASKED TO "GET RID OF" HANDGUNS AND
ACCEPTING THEM AS PERSONAL GIFTS POSSESSION OF RESTRICTED WEAPON

Two police officers investigated a suicide. A family member of the deceased requested the
officers.to "get rid or' two handguns that were in the house, besides the carabine the deceased
had used to end his life. The officers took one gun each and requested the family member to
look for the requisition certificates. A check was made with the records department if the guns
were stolen. When the results were negative the officers took the guns h«;>me. The following
day the family member delivered a quantity of ammunition for theses guns to the police station.
This is how the police authorities became aware of what had happened. Both officers were
convicted of possession of a restricted weapon without have a registration certificate. They
appealed this conviction to the Quebec Court of Appeal on grounds that they intended to register
the weapons. They also submitted that their possession was "by operation of law" [s. 91 (4)
C.C.] as well as by reason "for the purpose of his duties or employment" as peace officers [s.
92 (1) (b) C.C.]. The Quebec Court of Appeal held that the obligation to have a registration
certificate arises when one comes into possession of the firearm and not afterwards. The other
two grounds were also dismissed as the guns were a personal gift and had, in the circumstances,
not been in their possession related to their office. Appeals were dismissed and convictions were
upheld.

Regina v. Bibeau and Lemay - 61 C.C.C. (3d) 339. November 1990.

*****

- 44 "ASSAULT CAUSING BODILY HARM MAY BE AN INCLUDED
OFFENCE TO ROBBERY"
The accused and companion robbed a Mr. F. and apparently did, before or after the robbery,
"wound" their victim. The accused was simply charged with "robbery". The indictment did
not mention the word "wound" neither was the means by which the robbery was perpetrated
revealed in this count. Robbery can be committed in four different ways and the Crown is not
obliged to include the means in its allegations. It must, of course, disclose the means it intends
to prove, where an accused asks for additional information. In this case the Crown failed to
prove that whatever happened amounted to robbery, but did prove that the accused wounded Mr.
F. The robbery section that applies here defines robbery as stealing from another person and
before or immediately after the theft wound that person. As one offence is included in another
where the latter's statutory definition identifies the former as a means by which to commit the
offence, the trial judge convicted the accused of assault causing bodily harm. The accused
appealed his conviction to the BC Court of Appeal. The Court of Appeal found that "wounding"
is inflicting bodily harm. Hence the offence of assault causing bodily harm is included in
robbery. The evidence the Crown had adduced proved assault causing bodily harm. The
accused's appeal was dismissed.

Regina v. Horsefall - 61 C.C.C. (3d) 245 - BC Court of Appeal, November 1990.

*****

- 45 -

DOES MAKING A DEMAND FOR BREATH SAMPLES AS WELL AS
SUSPENDING THE SUSPECTS DRIVER'S LICENCE AMOUNT
TO CRUEL OR UNUSUAL PUNISHMENT?
The accused came very close to causing a devastating accident while towing a trailer carrying
a back hoe. This was witnessed by a police officer who made a demand for breath samples and
suspended the accused's driver's licence for 24 hours under the provisions of the BC Motor
Vehicle Act. This practice was one the officer applied where a suspected impaired driver holds
a valid driver's licence. The accused argued that this subjected him to additional punishment
or harsh treatment. The officer should have demanded breath samples or have suspended the
driver's licence, but could not do both as this violated the accused's right under s. 12 of the
Charter. The accused's argument had failed in Provincial Court and he was convicted. He
appealed his conviction to the BC Supreme Court. His argument failed there as well. Although
a suspension does not amount to punishment it is "treatment". It cannot be construed as "cruel
and unusual" considering the accused's gross state of intoxication. However, the Court
commented that the practice was unnecessary and overzealous.
A similar case18 was taken to the BC Court of Appeal in which it was claimed that this practice
amounts to double jeopardy and violates one's right under s. 1 l(b) of the Charter. The Court
rejected this claim as imposing a roadside suspension does not amount to charging someone with
an offence.

Regina v. Shaw - BC Supreme Court, Courtenay No. S0134 - February 1991.

*****

18

R. v. Art - 7 MVR (2d) 132

- 46 -

POLICE COMMISSION PUBLIC INQUIRY INTO POLICE ACTION IS
NOT A TRIAL AND NOT SUBJECT TO BE TRIED
WITHIN A REASONABLE TIME.
Police officers allegedly assaulted a man they arrested. The Quebec Police Commission did not
empanel an administrative tribunal to conduct a public inquiry into the complaint until two years
after the incident occurred. The officers petitioned the Quebec Superior Court to order a stay
of proceedings on the basis that their Charter right to a trial within a reasonable time would be
infringed if the inquiry went ahead. The Court held that because the officers were not charged
with an offence, they were not being tried and hence the Charter provision for a speedy trial was
not applicable. However, the Court did grant the application on the basis of the common law
right to undelayed justice. In the circumstances the delay was excessive.
The Quebec Police Commission successfully appealed. The Quebec Court of Appeal held that
although common law applies to administrative tribunals, the common law that applies is natural
justice does not provide that a person must be "investigated" within a reasonable time. The
officers were not charged or tried. They were being investigated and would suffer no prejudice.

Desormeaux v. Cote - Quebec Court of Appeal - 61 C.C.C. (3d) 560, September 1990

*****

- 47 ENTERING HOTEL ROOM UNINVITED AND FINDING DRUGS IN CLEAR VIEW.
PURPOSE FOR ENTERING UNRELATED TO TIIE DRUGS ADMISSIBILITY OF EVIDENCE
A police officer received information from a reliable source that a "Billy" was prepared to swap
a handgun for drugs. The information included the hotel Billy was staying in. This information
was passed on to a superior who checked at the hotel and found a Billy R. (who was known to
him) to be a registered guest. At 3: 10 a.m. the Sergeant arrived at the door of Billy's room and
found it ajar. He heard voices inside. His knocking caused the door to open wider. He entered
without invitation and greeted Billy. Drugs and drug paraphernalia were in plain view as were
the two accused. The Sergeant effected arrests and arranged for a search warrant to be obtained.
Around 5:00 a.m. the warrant was executed and the contraband was seized. The Sergeant
testified that his sole purpose was to have a conversation with Billy. He would not have entered
uninvited had the door not been open and he would have left had he been asked to do so. All
evidence that supported the obtaining of the warrant were discovered after he entered the room
without permission. The defence argued that the evidence of the drugs should be suppressed as
the accused's right to be secure against unreasonable search and seizure had been violated.
Furthermore there was a serious but unintended inaccuracy in the information that led to the
search warrant being issued. The Court found that the officers involved had not acted in good
faith and that the Sergeant entering the room as he did was unlawful. The search was
consequently unreasonable and admission of the evidence thereby obtained would bring the
administration of justice into disrepute.
Regina v. Lowe and Godbout - Supreme Court of BC - Victoria No. 54013, Decmeber 1990.

*****
A GESTURE CAN AMOUNT TO A STATEMENT
The accused was convicted of impaired driving. An eye witness had identified him as the driver
but had agreed with defence counsel that, "He's the best person in the room to fit the description
of what you remember .... ". The witness conceded that if there was a similarly looking person
in the courtroom, "I wouldn't bet my life on pinpointing him ... ". Additional identification
evidence came from the investigating officer who had asked from two persons sitting on the
curb, "Who's the driver of the BMW?" Without saying anything the accused had raised his
hand. Without conducting a voir dire on this statement by the accused the trial judge had
obviously found that identification had been proved beyond a reasonable doubt. Upon appeal
by the accused the Supreme Court of BC held that a gesture can be a statement and in these
circumstances it was. This statement should have been subjected to a trial within a trial to
determine admissibility. Therefore, the appeal was allowed and new trial ordered.
Regina v. Derewenko - BC Supreme Court - Chilliwack No. 23591, April 1991.