POLICE ACADEMY

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

2006 POLICE LEADERSHIP
CONFERENCE
APRIL 10-12, 2006
Mark your calendar! The British
Columbia Association of Chiefs
of Police, the Ministry of Public
Safety and Solicitor General
and the Justice Institute of
British Columbia will be hosting the "Police
Leadership 2006 Conference" April 10 to 12,
2006 at the Westin Bayshore in Vancouver,
British Columbia. This is Canada’s largest Police
Leadership Conference and was sold out in 2004.
This conference will emphasize leadership as an
activity, not a position, and provide an
opportunity for participants of all ranks from
police agencies across Canada, the United
States, and beyond to engage with a carefully
chosen list of first class speakers, some of the
world's outstanding authorities on leadership.
For more updates on this conference as they
develop, please bookmark:
www.jibc.bc.ca/police/main/
promoforleadership2006.htm

‘IN SERVICE: 10-8’ NOW IN
5th YEAR

The Police Academy’s newsletter has now
entered its fifth year of publication. Back issues
are now available from 2001, 2002, 2003, 2004
and now 2005 by navigating the Police Academy
website at www.jibc.bc.ca.

MARCH 12-15, 2005
“Mass Murder in the Home,
the School and the Workplace:
Spree Killers and Annihilators”

Location:
Ramada Inn & Conference Centre
Abbotsford, BC

Registration:
$329 regular—Registration fee includes
tickets to the opening ceremonies and
receptions, on-site continental
breakfasts, and tickets for the conference banquet.

Topics:
Dunblane School Massacre,
Scotland, 1996
Gakhal Family Murders, Vernon,
British Columbia, 1996
Ottawa Transpo Massacre, Ottawa,
Ontario, 2001
Kamloops Murders, British Columbia,
2002
Port Arthur Massacre, Tasmania,
1996
Columbine High School Massacre,
1999
Expert presenters include Lt. Col. Dave Grossman, U.S.
Army (Retired), Director, Killology Research Group, is
one of the world's foremost experts in the field of human
aggression, the roots of violence and violent crime.

Visit www.fvlec.org for more info!
Volume 5 Issue 1
January/February 2005

HIGHLIGHTS IN THIS ISSUE
No Privacy Interest Through Open Door

Pg.
4

Hearsay OK for Search Warrant Grounds

6

Near Passive ‘Trick’ Not Elicitation

9

Pat-Down not for Safety: Evidence Excluded

11

Statement Admissible
Violation

s.10(b)

17

Smell of Liquor Sufficient for Proper
Roadside Demand

18

Alcohol Testing: Unconstitutional Probation
Condition

19

On-Duty Deaths Rise

25

BC Police Get New Code of Ethics

30

Physical Access, not Visual Access, Defines
Public Place

34

Despite

The “In Service: 10-8”
newsletter would like to
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readers’ comments about
the
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We
appreciate
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British Columbia

Cops as Crooks not Persons in Authority
35
Unless otherwise noted, all articles are authored by
Sgt. Mike Novakowski, MA (Abbotsford Police). The
articles contained herein are provided for information
purposes only and are not to be construed as legal or
other professional advice. The opinions expressed are
not necessarily the opinions of the Justice Institute of
British Columbia. “In Service: 10-8” welcomes your
comments on or contributions to this newsletter. If you
would like to be added to our electronic distribution list
e-mail Mike Novakowski at mnovakowski@jibc.bc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases – Periodicals.
I. Justice Institute of British Columbia. Police Academy.
II. Title: In service, 10-8. III. Title: In service, ten - eight.

2

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Volume 5 Issue 1
January/February 2005

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ROADSIDE DEMAND REQUIRES
NOTHING MORE THAN A
REASONABLE SUSPICION
R. v. Dunfield, 2004 BCPC 0419
After stopping the accused for
excessive speeding at 01:42 am,
an officer asked her if she had
been drinking. She said she had
beer and wine at 9:30 pm and
had been involved in a fight with her husband. An
odour of liquor emanated from the vehicle and

Volume 5 Issue 1
January/February 2005

the accused was crying, had a pale face with
flushed cheeks, running mascara and bloodshot,
watery eyes. The accused was asked to exit the
vehicle and was somewhat unsteady on her feet
while she stood on level ground. The officer
formed a suspicion the accused had alcohol in
her body and proceeded with a roadside
screening demand.
During her trial in British Columbia Provincial
Court the accused argued that the smell of
liquor from the vehicle and the other
observations were not sufficient to justify the
roadside screening demand. In her view,
something more was required, such as asking
when her first and last drink occurred.
In rejecting the accused’s submission, Justice
Moss concluded the officer proceeded properly.
He stated:
The essential question is whether or not [the
officer] had, objectively speaking, reasonable
grounds for her suspicion. Looking at it in its
entirety, the evidence involves the admission
by the driver of the consumption of liquor at
an earlier time. The officer had in her mind
the concern she may not be getting the truth,
which I do not find to be shocking. Thus there
is the admission of the consumption of liquor
at some time prior to the time of driving. The
officer also had the driver with watery,
bloodshot eyes, saying she had recently had an
argument and had been drinking at an earlier
time around 9:30 p.m., and finally, there was
the smell of liquor emanating from the driver's
side when the window was down.
[The officer] concluded there were reasonable
grounds to pursue the matter and therefore,
in order to satisfy herself, she made an
approved roadside screening device demand. A
roadside screening device is one more tool in a
police officer's toolbox with regard to the
investigation of suspected impaired drivers,
and is often used to raise "mere suspicion" to
reasonable and probable grounds if there is a
fail reading obtained.
I am satisfied [the officer] had the required
subjective belief at the time she made the

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3

breath demand. On an objective analysis, I
cannot say that I would be prepared to
conclude there was not a constellation of
objective factors surrounding the situation
that would make it unreasonable for her to
have made the demand. [para. 9-11]
Complete case available at www.provincialcourt.bc.ca

NO PRIVACY INTEREST
THROUGH OPEN DOOR
R. v. Motevaselan, 2004 BCPC 0453
The police received a report
that a hotel staff worker had
been assaulted hours earlier.
The suspect was last seen
entering a rooming house next door to the hotel.
The police were shown a photograph of the
suspect and told he was seen enter the rooming
house about one and a half hours earlier.
Officers entered the second floor hallway of the
rooming house through a locked door by using a
key given to them in the past by the landlord.
Along the hallway were several individually
numbered doors, which gave entry into each
tenant’s sleeping room. The tenants shared a
communal washroom and a communal kitchen.
As the police approached the suspect—seen at
the far end of the hallway—they passed by a
room and saw a woman standing in the open
doorway talking to people inside. Looking over
her shoulder into the room, an officer saw the
accused, and a female, seated on a bed mattress
with a small quantity of what appeared to be
crack cocaine, a set of scales, a crack pipe, and
cash. The officer stepped into the room,
arrested the accused for possession for the
purpose of trafficking, handcuffed him, and took
him from the room. He was searched for safety
(weapons, needles) and police found more cocaine
in the front of his pants along with $85 in his
pocket.
At his trial in British Columbia Provincial Court
on charges of possession of cocaine and heroin
for the purpose of trafficking, the accused

4

argued the police unlawfully entered the second
floor of the rooming house when they opened the
locked door without a warrant, hot pursuit or
exigent circumstances. He submitted he had a
reasonable expectation of privacy in his own
room as well as the hallway, which he uses to
access the communal washroom and kitchen. In
his view, his s.8 Charter rights securing him
against unreasonable search or seizure were
violated and the evidence should be excluded.
Justice Weitzel disagreed. In his opinion there
was no Charter breach. The accused did not have
a reasonable expectation of privacy in the
hallway or in his room with the door open. Since
the drugs were in plain view, the officer had the
right to enter the room and seize the drugs
before they could be destroyed. The detention
that followed was also lawful , including the patown search that lead to the discovery of more
drugs. Justice Weitzel wrote:
[I]t is my view that there was no reasonable
expectation of privacy in this common hallway
in the circumstances of this case. Other
tenants of the rooming house, their visitors,
repair people, the landlord, and so on, could be
reasonably expected to be in the hallway quite
independent of the consent or invitation of the
accused, and any of them could easily have
looked through the open door into the
accused's room. In my view, if the accused had
an expectation of privacy in the common room,
it was lesser than the expectation in his room
proper, and any expectation, in my view, of
privacy was waived by sitting in the room with
the door open.
The police were in the hallway for a proper
unrelated investigative purpose with the
consent, express or implied, of the landlord,
who had given them a key at some point in the
past. The landlord was clearly a person who
had the right to use the hallway and to
regulate other non-residents from doing so as
well. Accordingly, I find that the presence of
the police in the hallway did not amount to in
essence an unlawful attendance, and their view
into the room was not, in my view, an
unreasonable search.

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

The door to the accused's room, as I say, was
open, or partially open, and afforded anyone in
the hallway the opportunity to look inside. The
room was small, approximately eight feet by
eight feet, and I am satisfied on the evidence
that the accused himself knew that the door
was open. The drugs were in plain view, along
with the other items. In those circumstances,
in my view, provisions of the Criminal Code and
the Controlled Drug and Substances Act
authorized [the officer] to enter without
warrant, to seize the cocaine, and prevent it
from being destroyed. In my view, his
detention of the accused was also lawful, as
was the attendant pat-down search of him
aimed at finding any weapons or sharp objects
which may affect officer safety. [references
omitted, paras. 20-22]

The evidence resulting from the seizure in the
room and the search of the accused was
admissible.
Complete case available at www.provincialcourt.bc.ca

SEARCH WARRANT ONLY
REQUIRES CREDIBLY BASED
PROBABILITY
R. v. Schneider, 2004 NSCA 99
Police
obtained
a
search
warrant to search the accused’s
home. The complainant and his
family were neighbours of the
accused and alleged they were
harassed over a six month period in several ways,
including spitting, shaking fists, running at their
car, throwing rocks at their house, shining a
flashlight into the windows at night, verbal
harassment, blocking entry, cutting branches,
banging pipes, scattering glass on their property,
cutting pieces of their porch and photographing
them against their will. Some of these incidents
were supported by video tape recordings made
by the complainant.
The accused were convicted in Nova Scotia
Provincial Court of criminal harassment and

Volume 5 Issue 1
January/February 2005

mischief under the Criminal Code and a
conviction appeal was dismissed by the Nova
Scotia Supreme Court. The accused launched a
further appeal to the Nova Scotia Court of
Appeal arguing, in part, that the search of their
home was unlawful because there was no
evidence upon which to justify the warrant. In
their submission there were no reasonable
grounds they committed the offences they were
charged with because the complainant was lying.
Justice Cromwell, authoring the court’s
judgment, concluded the police did have
reasonable grounds for believing the accused had
committed offences and that the search of their
home would provide evidence of these offences.
The information to obtain the warrant contained
detailed information from a journal kept by the
complainant and some incidents were captured on
videotape. In examining the sufficiency of the
information to obtain in this case, the court
noted:
A justice of the peace who issues a search
warrant must be satisfied by information on
oath that there are reasonable and probable
grounds to believe that an offence has been
committed and that evidence of it is to be
found in the place of search… The standard is
one of credibly based probability… The
affiant's reasonable belief does not have to be
based on personal knowledge, but the
Information to obtain the warrant must, in the
totality
of
circumstances,
disclose
a
substantial basis for the existence of the
affiant's belief… On review of the issuance of
a search warrant, as in this case by the trial
judge, the question is whether the record
before the justice of the peace who issued the
warrant, as properly amplified on review,
provides a proper basis upon which the search
warrant could be issued...[para. 75]

And further:
A police officer investigating an alleged crime
and a justice of the peace asked to issue a
search warrant are not trial judges deciding
guilt or innocence. The police officer may
proceed on the basis of belief that reasonable

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5

and probable grounds exist which have a
credible basis and the justice of the peace
may issue a search warrant if satisfied that
this is so. [The officer in this case] was
examined at length at trial and, at the end of
it all, it could not have been clearer that he
believed the [accused] had committed
offences. It was also clear that he thought
that [the complainant’s] detailed records and
video tape provided a reasonable and credible
basis for that belief. The justice of the peace
was evidently satisfied that the requirements
had been met as were the trial judge and the
[summary conviction appeal court]. [para. 78]

On its face, the material before the issuing
justice of the peace provided a proper basis for
authorizing the warrant. The warrant was valid
and the search was therefore authorized by law.
The appeal was dismissed.
Complete case available at www.canlii.org

HEARSAY OK FOR SEARCH
WARRANT GROUNDS
R. v. Agensys International Inc. et al,
(2004) Docket: C38981 & M30925
(OntCA)
Revenue Canada investigated the
accused for offences under the
Income Tax Act and the Criminal
Code. A special Investigations
Unit officer swore an information
to obtain a warrant, which included hearsay
information from several sources. As a result, a
search warrant was granted to search business
and residential premises. Six months after the
warrant was executed, the accused filed an
application seeking an
LEGAL LANGUAGE
Certiorari—a writ issued from a
order of certiorari
superior court inquiring into the
quashing the warrants
validity of proceedings in an
inferior court and commonly used
and declaring their
for the purpose of quashing
Charter rights under
orders.
s.8 had been violated.
The application was dismissed and the accused
appealed to the Ontario Court of Appeal arguing,

6

in part, that the investigator improperly relied
on multiple layers of hearsay evidence without
making inquiries to verify the accuracy of it.
This, in the accused’s view, caused a fatal flaw in
the warrant because the information did not
offer full, frank and fair disclosure.
Justice Gillese, on behalf of the court, dismissed
the appeal. As long as the information relied
upon is properly sourced, hearsay can support
the issuance of a search warrant. She stated:
[A]lthough the deponent of an Information to
Obtain should consider obtaining information
directly from those with first-hand knowledge
of the facts, it is not a legal requirement that
the deponent do so. Like search warrant
applicants, such deponents are entitled to rely
upon hearsay. Again like search warrant
applicants, where hearsay is relied upon, it
must be presented in a way that allows the
issuing judge to make his or her own
determination about the reliability and
trustworthiness of the sources of information.
The Information to Obtain should never
attempt to trick its readers. It should set out
the
facts
truthfully,
fully
and
plainly…[references omitted, para. 43]

But “it is important that an affiant properly
source all the information relied upon,”, which in
some cases may require providing sufficient
information on an expert’s credentials so the
justice can satisfy themselves the expert is
qualified to give their opinion. Furthermore,
information provided to the investigator by
other Revenue Canada employees does not
require independent verification of its accuracy,
unlike a tip from unproven or unknown sources
that require confirmation.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
If you lead through fear you will have little to
respect; but if you lead through respect, you will
have little to fear—Unknown

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

CERTIFICATE OF ANALYSIS
CONSIDERED IN ASSESSING
EVIDENCE TO THE CONTRARY
R. v. Suttie,
(2004) Docket:C40183 (OntCA)
After stopping the accused for a
seatbelt violation, a police
officer formed a reasonable
suspicion he had alcohol in his
body and administered a roadside screening test.
The accused failed and subsequently provided
breath samples of 212mg% and 218mg%. He was
charged with care and control with a blood
alcohol content over 80mg% and the certificate
of qualified technician was tendered as evidence,
but the technician was not called to testify.
At trial in the Ontario Court of Justice, the
accused testified to the amount of alcohol he
consumed, which according to an expert
toxicologist would have provided a blood alcohol
level well below 80mg%. The trial judge
considered the contents of analysis—absent the
presumption of accuracy under s.258(1)(g) of the
Criminal Code—when determining whether the
accused had raised a reasonable doubt about his
blood alcohol level as stated in the certificate of
analysis. He rejected the evidence to the
contrary and convicted the accused.
The accused’s appeal to the Ontario Superior
Court of Justice was successful. The appeal
judge found the trial judge had erred in
considering the breathalyzer readings in
assessing the accused’s evidence to the contrary.
He set aside the conviction and ordered a new
trial. The Crown then appealed to the Ontario
Court of Appeal.

Proving an Over 80mg% Charge
If the Crown seeks to prove an over 80mg%
charge by relying on the certificate of qualified
technician it must show that the results
reported in the certificate accurately reflects

Volume 5 Issue 1
January/February 2005

the results of the breathalyzer and also that the
driver’s blood alcohol level at the time of driving
was over 80mg%. In overcoming these two
evidentiary hurdles, the Crown may rely on two
statutory presumptions—the presumption of
accuracy and the presumption of identity. Since
each presumption is different, they will require
different “evidence to the contrary” to raise a
reasonable doubt about the fact to be presumed.

Presumption of Accuracy
Section 258(1)(g) of the Criminal Code allows the
Crown to introduce the certificate of analysis as
proof of blood alcohol level without calling the
breathalyzer technician taking the samples.
Justice Goudge described the presumption in
this way:
The presumption of accuracy permits the
Crown to prove the accused's blood alcohol
level at the time the breathalyzer test was
administered without calling a qualified
breathalyzer technician. According to this
presumption, the lowest result of the analyzed
samples reported in the certificate provided
by the qualified breathalyzer technician is
presumed to accurately reflect the blood
alcohol level of the accused at the time the
test was administered, absent evidence to the
contrary. This presumption is the product of s.
258(1)(g) of the Code which makes the
certificate admissible and s. 25(1) of the
Interpretation Act which makes the
certificate presumptive proof of those facts
absent evidence to the contrary…
The consequence of these sections is twofold.
First, the certificate is admissible as evidence
of the facts stated in it without the need to
call a qualified breathalyser technician. This
serves as a statutory exception to the hearsay
rule. In effect, it makes the written
statement of the qualified breathalyser
technician admissible as some evidence of the
truth of the assertions in the certificate.
These include that two breath samples that
were taken at the specified time and place;
that the samples were analyzed by an approved
instrument as defined in s. 254(1) of the Code;
that the technician had ascertained the

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7

instrument to be in proper working order; and
what the results were of the two analyses.
The second consequence is that these facts
are deemed to be established or conclusively
proven in the absence of any evidence to the
contrary. [paras. 16-18]

In short, s.258(1)(g) “declares that the
breathalyser certificate is evidence of the facts
alleged in it…[including] the blood alcohol
readings of the accused recorded by the
breathalyser.” However, the presumption of
accuracy can be displaced if a reasonable doubt
is raised about whether the driver’s blood
alcohol content was actually under 80mg% had
the breathalyzer test produced accurate
results. Simply offering evidence that the blood
alcohol level at the time of testing was different
from that recorded by the breathalyzer is not
sufficient to rebut the presumption.

Presumption of Identity
The presumption of identity under s. 258(1)(c) of
the Criminal Code, on the other hand, allows the
Crown to prove blood alcohol level at the time of
driving without having to call an expert by using
the lowest reading on the breathalyzer provided
it was taken within two hours of the time of
driving. Justice Goudge stated:
Under this provision, it is presumed, in the
absence of evidence to the contrary, that the
lowest of the blood alcohol readings referred
to in the certificate provided by the
breathalyzer operator is identical to the
accused's blood alcohol level at the time of
the offence. This presumption avoids the need
for the Crown to call expert evidence in every
case as to the accused's blood alcohol level
when he or she was driving based on an
extrapolation from the results of the
breathalyzer test administered up to two
hours after the driving occurred. [para. 19]

The presumption of identity can be rebutted “if
there is evidence accepted by the court that
tends to show that the blood alcohol level of the
accused was different at the time of the

8

breathalyzer test than at the time of the
driving.” It is not necessary to show the blood
alcohol level at the time of driving was below
80mg%, but only that it was different. An
example that may displace this presumption is
evidence of consumption after driving but
before testing. If the presumption of identity is
successfully rebutted, Crown will have to call
other evidence relating the breathalyzer reading
back to the time of driving.

Assessing “Evidence to the Contrary”
The Ontario Court of Appeal ruled that the
certificate of analysis could be used by a judge
in assessing whether to accept or reject the
accused’s “evidence to the contrary”, absent the
statutory presumption:
To treat the certificate as some evidence of
the facts contained in it is not to give it the
presumptive effect of establishing those
facts. The certificate is merely some hearsay
evidence that a qualified breathalyser
technician conducted two tests of the accused
with an approved device which produced the
blood alcohol results set out in the certificate.
The court simply considers this together with
the other evidence before it in deciding
whether to accept or reject the tendered
evidence to the contrary.
It is true that in doing so the court can treat
the certificate as no more than some evidence
of the facts set out in it. The court cannot
treat the certificate as establishing or
conclusively proving those facts, since to do so
would be to prematurely apply the presumption
in s. 25 of the Interpretation Act before the
court has determined whether there is
evidence to the contrary rebutting the
presumption. However even without the
presumption, the readings contained in the
certificate are deemed by s. 258(1)(g) to
constitute some evidence of the accused's
blood alcohol level at the time of testing.
There is no doubt that weighing the hearsay
evidence contained in the certificate of
analysis against the viva voce evidence of the
defence tending to show a blood alcohol level

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Volume 5 Issue 1
January/February 2005

below .08 at the time of testing presents a
challenge because the evidence in the
certificate comes to the court in documentary
form which must be weighed against live
evidence. Although it is not necessary that
they do so, it would not be surprising if triers
of fact proceeded as the trial judge did here
by focussing first on a careful examination of
the viva voce defence evidence and its
inherent strengths and weaknesses in the
context of the balance of the evidence apart
from the certificate, and only then turning to
consider the contents of the certificate, in
reaching a conclusion about whether to accept
or reject the tendered evidence to the
contrary.
Moreover, in my view, it will be the rarest case
in which the certificate alone is a sufficient
basis to reject otherwise credible defence
evidence in the contrary. If there is nothing in
either the balance of the evidence or the
defence evidence itself to undermine the
latter in any way, to reject it only because of
the contents of the certificate risks the court
wrongly according premature presumptive
effect to the certificate, either in its own
reasoning process or in the result. Neither
accords with Parliament's intent in s. 258(1)(g)
of the Code and s. 25 of the Interpretation
Act, that in the context of conflicting
evidence, the certificate should not constitute
conclusive proof of its contents. [para. 30-33]

In this case, once the evidence to the contrary
was rejected, the certificate’s statutory
presumptions were used to establish the
accused’s blood alcohol level at the time of
testing under s.258(1)(g) and at the time of
driving under s.258(1)(c).
The appeal was allowed and the accused’s
conviction was restored.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
A leader leads by example, whether he intends
to or not—Unknown

Volume 5 Issue 1
January/February 2005

NEAR PASSIVE ‘TRICK’ NOT
ELICITATION
R. v. Mishra, 2004 BCCA 598
While executing a search
warrant arising from a lengthy
drug investigation at the
accused’s automobile detailing
business police found money,
scales, bullets, cocaine, heroin, score cards,
other drug paraphernalia, and a picture of the
accused and his family inside a locked filing
cabinet with a bag containing $35,830 in cash—
the going price for a kilo of cocaine—on top of
the cabinet. In a locked briefcase police also
found documents and identification in the
accused’s name along with more heroin, cocaine
and drug paraphernalia.
About half an hour later the accused arrived by
car with three associates. Upon arrest, he
dropped a key ring with keys to the locked filing
cabinet. He was twice advised of his right to
counsel under the Charter and of his right to
remain silent—on his initial arrest and when
taken inside the building. He asserted his right
to counsel but was not provided an opportunity
until over an hour later after he was transported
to the police station since there was no place at
the business where a call in private could be
made.
During the time between his arrest and access
to a lawyer, a police officer engaged the accused
in “small talk”, asking him a few curious questions
about his family. The officer said he told the
accused he would not use the conversation
against him nor was it tendered as evidence.
However, a second officer overheard the
conversation and was able to identify the
accused’s voice from an earlier telephone
conversation in which that officer was working in
an undercover capacity in the drug investigation.
In that telephone conversation, the accused
threatened to kill the undercover officer. This
officer then spoke the same words the accused

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9

threatened and the accused remarked, “Oh, so
my phones have been tapped.” In his testimony
on the voir dire, the officer agreed he
deliberately made the remark to see what
reaction the accused would make.
At his trial in British Columbia Provincial Court
the accused was convicted of possession of
cocaine and heroin for the purpose of
trafficking. The trial judge found that the
statement made by the accused following his
arrest but before being provided an opportunity
to contact counsel was not actively elicited and
therefore his ss. 7 (right to silence) and 10(b)
(right to counsel) Charter rights were not
violated and the statement was therefore
admissible. In his view, the police simply gave
him the opportunity to speak after the police
made him aware they knew something about him.
The accused appealed to the British Columbia
Court of Appeal arguing the police used a thinly
disguised attempt to elicit an inculpatory
statement from him before he could speak to his
lawyer.
Between the time an arrestee expresses a desire
to contact counsel and the time a reasonable
opportunity is provided to exercise that right,
the police have a duty to refrain from
attempting to elicit evidence from the arrestee.
If the police do not hold off and actively elicit a
statement, the arrestee’s ss. 7 or s.10(b) rights
may be violated. Police conduct beyond the usual
form of question and answer which creates an
opportunity for an arrestee to speak ranges
from being passive—such as leaving a piece of
evidence in a prominent location at the police
station where it could be seen by the arrestee—
to the “functional equivalent of an interrogation”
—such as persisting in conduct effectively
wearing down an arrestee until they cave in and
make a statement despite repeatedly asserting a
right to counsel.
In this case the unanimous appeal court
dismissed the appeal. The trial judge did not err

10

in concluding that police did not elicit the
statement. Justice Prowse wrote:
While [the “trick” played] was not entirely
passive, it is difficult to characterize it as
being the functional equivalent of an
interrogation. Nor is there any suggestion that
[the first officer] intended to "set up" [the
accused] by chatting with him about his family.
On the contrary, it is apparent from the
transcript that officer] had no idea of the
significance of what had transpired between
[the second officer] and [the accused] until
later. It is true that [the second officer] was
hoping that [the accused] would say something
exculpatory, but the real question is whether
he breached [the accused’s] rights by his
conduct.
The administration of justice is not served if
this Court creates fine distinctions between
conduct which does and does not amount to
elicitation giving rise to a breach of an
accused's Charter rights. The guidelines with
respect to what constitutes eliciting behaviour
have been set out by the Supreme Court of
Canada…. It is up to trial judges to apply those
general guidelines to the facts before them in
determining whether the conduct in issue
amounts to elicitation within the contemplation
of those cases. This Court will only interfere if
the finding cannot be justified on the
evidence, or if the trial judge erred in the
course of his reasons… In this case, I am not
persuaded that the trial judge erred in
concluding that the conduct of the police did
not constitute elicitation as that word has
been interpreted by the relevant authorities
and that [the accused’s] rights under either s.
7 or 10(b) of the Charter had not been
breached. [para. 26-27]
Complete case available at www.courts.gov.bc.ca

Note-able Quote
Leaders who win the respect of others are the
ones who deliver more than they promise, not
the ones who promise more than they can
deliver—Mark Clement

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

PAT-DOWN NOT FOR SAFETY:
EVIDENCE EXCLUDED
R. v. Motevaselan, 2004 BCPC 0362
Officers
approached
the
accused to investigate his
presence in an alley while in
possession of a high end bicycle.
As they got closer, they saw a
marihuana bong attached to the bicycle. The
accused said the bike was his when asked and
the officers inferred the bong belonged to him
as well. The police also saw wire mesh, similar to
that used for smoking crack cocaine, sticking out
from his pocket and heard a cell phone in
possession of the accused ringing constantly.
The officer placed the accused under
investigation
for
possession
of
drugs,
handcuffed him and searched through his
pockets, finding 69 grams of cocaine and 2.5
grams of heroin.
During a voir dire in British Columbia Provincial
Court, Justice Godfrey concluded the bong, steel
wool, and cell phone provided only enough
grounds to investigate—as the officers were
doing—but not to arrest the accused and search
him in the manner they did. She held:
Incident to the right of detention for
investigation is the right of officer safety.
They were entitled to pat down the accused to
ensure that he didn't have any weapons on him.
That is not what they did. They proceeded to
search him in the fashion that would follow an
arrest, and that was not open to them, given
that the accused was simply detained for
investigation. [para.5]

The evidence was excluded under s.24(2) of the
Charter and the accused was found not guilty.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
The leader who exercises power with honour will
work from the inside out, starting with himself—
Blaine Lee

Volume 5 Issue 1
January/February 2005

INVESTIGATION OF NEW
OFFENCE DOES NOT REQUIRE
PROSPER WARNING
R. v. M.W.F., 2004 BCCA 425
The accused, a 15 year old
young offender, was arrested
by police for assaulting his
foster mother with a weapon
and was advised of his right to
counsel under s.10(b) of the Charter. He was
taken to the police detachment, reminded of his
right to counsel, and told police he wanted to
speak to a lawyer. The accused made a call to
legal aid, but was unsuccessful speaking to a
lawyer. However, he did leave a message for a
lawyer to call him back at the detachment.
About an hour and a half later, while still waiting
for a return call from legal aid, the accused was
taken to an interview room where a s.56 Young
Offenders Act (YOA) statement waiver form
was completed. Over an 18 minute period, the
accused was explained his rights including such
things as not being required to say anything, that
he could speak to a lawyer free of charge, and
that he could speak to a lawyer at anytime. The
officer talked through each item on the form
and the accused said he understood. He was not
questioned about the matter relating to his
arrest, but subsequently confessed during a
videotaped interview to a sexual assault
occurring two days earlier that the police were
investigating and for which he was a suspect.
The accused’s inculpatory statement was
admitted at trial in the British Columbia
Provincial Court and he was convicted of sexual
assault causing bodily harm.
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that his right to
counsel had been denied. Since he had not been
able to speak to a lawyer on the matter for
which he was originally arrested, the accused
submitted he could not be questioned on other
matters,
despite
being
explained
and

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11

understanding the waiver form. In his view, he
told the arresting officer he wanted to speak to
a lawyer and the police had a duty not to
question him about any matter until he had
spoken to one.
In a 2:1 judgment, the accused’s appeal was
dismissed. Justice Lowry—with Justice Huddart
concurring—concluded the accused’s right to
counsel had not been breached and the
statement requirements for a young person
contained in s.56 of the YOA had been followed.
In addition to the right to counsel under s.10(b)
of the Charter, ss. 11 and 56 of the YOA provide
additional rights to a young person. Section 11
provides a young person with the right “to retain
and instruct counsel without delay”, to be
advised of their “right to be represented by
counsel” and to be “given an opportunity to
obtain counsel.” Section 56 of the YOA creates a
number of prerequisites for the admissibility of
a young person’s statement. These requirements
include
voluntariness,
age
appropriate
explanations that they are under no obligation to
give a statement, any statement may be used as
evidence, they can consult counsel, and any
statement must be made with counsel present,
unless waived. Furthermore, s.56 mandates that
the young person must be provided a reasonable
opportunity to consult with a lawyer and any
waiver must be videotaped or in writing. If the
requirements of s.56 are not satisfied, the
statement will not be admitted as evidence.
In holding that the officer had no duty not to
attempt to further her investigation on the
sexual assault or that her efforts did not deny
the accused an opportunity to exercise his right
to counsel, Justice Lowry stated:
It is certainly clear that when a person is
arrested or detained by police who are
investigating the commission of an offence in
which the person is thought to be implicated
and, upon being told the reason for the arrest
or detention as required, the person wishes to
consult with counsel, he or she is entitled to a
reasonable opportunity to do so free of any

12

attempt to elicit evidence about the matter
that is the subject of the arrest…
I am, however, unable to accept the notion
that, in the circumstances, [the sex assault
investigator] was duty bound not to take the
opportunity of the [accused] being in the
detachment to attempt to further her
investigation of a matter that was entirely
unrelated to the matter that was the subject
of his arrest, providing of course that she
advised him of his rights as required by s. 11
and reflected in s. 56(2) of the Act. A person
who has been arrested or detained may wish to
consult counsel in respect of one matter but
not another. Indeed, that appears to have
been exactly what the [accused] wished. What
is important is that the person be properly
advised of his or her rights so a proper
determination in that regard can be made.
[references omitted, paras. 72-73]

The accused also argued that once a detained
person has asserted their right to counsel but
has changed their mind the police must provide
them with additional information, commonly
referred to as a Prosper1 warning. This warning
requires the person be told that they have a
right to a reasonable opportunity to consult with
counsel and that the police are required to “hold
off” from questioning or otherwise requiring the
person to participate in any potentially
incriminating process. Justice Lowry, however,
ruled that this was not a Prosper case. The
accused had not changed his mind. Rather, he
wanted to speak with a lawyer in relation to the
matter for which he was arrested and the
officer
merely
BC’s PROPSER WARNING
You have the right to a reasonable
“raised with him an
opportunity to contact counsel. I am
unrelated
matter
obliged not to take a statement from
you or to ask you to participate in any
requiring that he be
process which could provide
advised of his right
incriminating evidence until you are
certain about whether you wish to
to counsel anew.”
exercise that right. Do you
Justice Lowry held:
understand? What do you wish to do?
I do not consider that anything said in Prosper
requires the police to give a detained person
both the kind of advice concerning the right to
1

See R. v. Prosper, [1994] 3 S.C.R. 236

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Volume 5 Issue 1
January/February 2005

counsel that is routinely given at the outset of
an arrest or detention as well as the advice
prescribed in that case at the same time. It
must be one or the other. The latter is to be
given once there has been a change of mind to
reinforce the former which will have been
given at an earlier time. The purpose of the
informational advice required when there is a
change of mind about exercising a right to
counsel is to insure that the apparent waiver is
free and voluntary….
The advice called for in Prosper is to be
considered in the context of that case…. The
person arrested in Prosper made an
incriminating statement after attempting 15
times over 37 minutes to contact a lawyer
before giving up in frustration. There is
nothing to be taken from the exchange
between [the officer] and the [accused] that
suggests he was acting out of frustration when
he said he did not want to speak to a lawyer
and proceeded to talk to her about the sexual
assault.
Given that [the officer] fully informed the
[accused] of his right to counsel and that he
was not required to say anything to her about
the sexual assault, I do not consider she was in
the circumstances required to say more. To
tell him in addition that he was entitled to a
reasonable opportunity to contact a lawyer and
that she could not ask him about the sexual
assault in the interim would, in my view, have
added nothing meaningful to the advice he was
given. Indeed, it may have been confusing for
a young person. What the [accused] needed to
know was precisely what was explained to him
as s. 11 of the Act required and he
acknowledged he understood. [references
omitted, paras. 80-82]

The officer complied with ss.11 and 56 of the
YOA and was entitled to interview the accused
to further her sexual assault investigation. She
properly advised him of his right to counsel,
which he declined to exercise.

A Second Opinion
Chief Justice Finch disagreed with the majority.
First, he outlined several duties imposed on the

Volume 5 Issue 1
January/February 2005

police under s.10(b) of the Charter. They must
inform the detainee of their right to retain and
instruct counsel without delay including the
existence and availability of legal aid. If the
person wants to speak to counsel, the police must
provide them with a reasonable opportunity to do
so and refrain from eliciting evidence until the
reasonable opportunity has been provided.
Furthermore, he noted:
The right to counsel may impose two further
duties on the authorities, depending on the
particular circumstances which confront a
detainee. The first arises in situations where
the nature of the jeopardy facing a detainee
changes during detention and becomes more
serious. In such cases, the authorities are
under a further duty to advise the detainee of
the change in jeopardy, remind the detainee of
his or her right to counsel and provide the
detainee an opportunity to contact counsel
again if he or she so desires…
The second additional duty with which the
authorities may have to comply arises in
situations where the detainee initially asserts
his or her right to counsel but, before having
the
opportunity
to
contact
counsel,
subsequently changes his or her mind and
decides to waive that right. In R. v. Prosper,
the Supreme Court held that in such situations
the authorities cannot simply accept the
subsequent waiver, but instead must comply
with further information duties…
The Supreme Court of Canada has repeatedly
confirmed that the right to counsel is not
absolute. An accused or detainee must be
reasonably diligent in exercising the right,
otherwise the implementational duties imposed
on the authorities are suspended…
In addition, a detainee can waive the right to
counsel. The standard for waiver of a Charter
right is high. The waiver must be voluntary
and based on an awareness of the rights being
waived. Accordingly, where an accused is not
properly advised of his or her right to counsel,
a waiver of that right cannot be
effective…[references omitted, paras. 27-30]

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13

Although the accused was not arguing a s.10(b)
Charter violation but rather non compliance with
the YOA, Chief Justice Finch recognized that
s.10(b) Charter jurisprudence would inform the
protections afforded by ss.11 and 56 of the
YOA. Moreover, in Charter cases the accused
bears the burden of proving a prima facie breach
of s.10(b) before s.24(2) can be resorted to
whereas in YOA cases the Crown has the burden
of proving compliance with s.56, otherwise the
statement is inadmissible. In his view, the Crown
failed to prove a proper waiver.
Although the officer was required to advise the
accused anew of his right to counsel for the
second offence, the adequacy of that warning
must be assessed in context with his earlier
experience. About two hours earlier he
expressed a desire to speak with a lawyer after
being told he had the right to do so. This did not
happen even though he had waited for a lawyer
to call back. The police did not tell him he had
the right to a reasonable opportunity to contact
a lawyer nor that they could not take a
statement until he had the reasonable
opportunity. Chief Justice Finch stated:
In my view, the facts of this case closely
resemble the type of situation contemplated in
Prosper, supra where a detainee expresses a
desire to contact counsel and then
subsequently changes his or her mind before
being provided with a reasonable opportunity
to do so. Unlike this case, only one offence
was at issue in Prosper, and the requirement
for a so-called Prosper warning has generally
been considered in cases involving only one
offence…However, in the circumstances of this
case – given the single episode of detention,
the close temporal connection between the two
interviews, and the fact that the police were
dealing with a young person unfamiliar with the
criminal justice system – [the accused] was
entitled
to
the
added
informational
components set out in Prosper. This is
consistent with the "special guarantees"
afforded by s.3(1)(e) of the YOA and the
Supreme Court of Canada's observation that
"the particular characteristics of young

14

offenders make extra precautions necessary in
affording them the full protection of their
Charter rights". [references omitted, para. 43]

Chief Justice Finch would have allowed the
appeal, ruled the statement inadmissible, and
directed an acquittal. However, the appeal was
dismissed since the majority found no error in
the trial judge’s decision.
Editor’s comments: Although this decision dealt
with the admissibility of a statement under the
former Young Offenders Act, the new Youth
Criminal Justice Act has similar provisions.
Complete case available at www.courts.gov.bc.ca

POLICE NEED NOT BE
EXPLICIT ABOUT COUNSEL OF
CHOICE INFORMATION
R. v. Grouse, 2004 NSCA 108
The accused was arrested for
attempted murder after a rifle
bullet penetrated the door of a
police car and entered a police
officer’s thigh and hand, seriously wounding her.
The accused was advised of his Charter rights
and given the usual cautions. He said he wanted
to talk to his own lawyer (Mr. Mancini), who
worked with legal aid. A police officer contacted
the on-call duty counsel, told the lawyer the
accused wanted to speak with Mr. Mancini and
the accused spoke to the duty lawyer in private
on the phone. Fourteen hours later the accused
was interrogated for over three hours, at which
time he made inculpatory statements including an
admission he shot at the police car. At trial the
statement was ruled admissible and the accused
was convicted of intentionally causing bodily
harm, but appealed to the Nova Scotia Court of
Appeal arguing, in part, that he was not properly
advised of his right to counsel because he was
not told he had the right to contact counsel of
his choice.

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Volume 5 Issue 1
January/February 2005

At the time of his arrest the accused was told,
among other things, that he had “the right to
retain and instruct a lawyer without delay”, but
was not told he had the right to retain and
instruct counsel “of his choice”. In his view, the
omission of these three words resulted in a
violation of his rights under s.10(b) of the
Charter. As a result, he suggested the
statement should have been excluded. Justice
Cromwell, authoring the unanimous appeal
judgment, first reviewed the duties imposed on
police under s.10(b) of the Charter and clarified
the issue to be addressed:
[Section 10(b)] imposes two types of duties on
the police. The first, which flows from its
opening words, is to afford detained persons
the right to retain and instruct counsel. This
has been referred to as the facilitation or
implementation aspect of s. 10(b). It requires
the police to provide a detainee who has
indicated a desire to exercise the right to
counsel with a reasonable opportunity to do so
and to refrain from eliciting evidence from the
detainee until he or she has had that
reasonable opportunity…The second type of
duty, which flows from the concluding words
of the section, has been referred to as the
informational component. It requires the police
to inform the detainee of his or her right to
retain and instruct counsel without delay and
of the existence and availability of legal aid
and duty counsel…
It is important to understand that this appeal
relates only to the second of these two types
of duties. The question raised is whether the
[accused] was properly informed of his right
to counsel. I mention this point because the
arguments on appeal sometimes lost sight of it
and confused the issue of whether proper
information had been given with the question
of whether [the accused] exercised his right
to counsel diligently. But issues of diligence
are not relevant if there has been a failure to
properly advise the detainee of the right to
counsel. This is because a failure to properly
advise the detainee is, in itself, a breach of
the Charter and a failure on the part of the
detainee to exercise the right to counsel

Volume 5 Issue 1
January/February 2005

diligently
after
such
a
breach
is
irrelevant…This, of course, is consistent with
common sense: a person who is not told about
the right to counsel cannot be expected to
exercise it diligently….So the analysis here
must focus exclusively on the question of
whether the information given to [the
accused] satisfied the informational duty of
the police under s. 10(b); any failure on his
part to act diligently in pursuit of his right
cannot cure a breach of the duty to give him
proper information about it. [references
omitted, para. 10-11]

In dismissing the appeal, Justice Cromwell ruled
that the police, in fulfilling the informational
component of s.10 regarding counsel of choice,
need not tell an arrestee anything more than
they have the right to retain and instruct
counsel. He stated:
However, I am also of the view, subject of
course to implementation duties, that the law
did not require the police to do anything to
communicate [the accused’s] right to counsel
of choice beyond advising him of his right to
retain and instruct counsel without delay as
mandated in the leading cases from the
Supreme Court of Canada. I say this for three
reasons: the authorities do not require more,
no additional information would be conveyed by
adding more express information about counsel
of choice and doing so would not help fulfil the
purpose of the informational component of s.
10(b).
The cases from the Supreme Court of Canada
make it clear that there are three elements of
the informational duty. The detained person
must be told: (1) that they have the right to
retain and instruct counsel without delay; (2)
about access to counsel free of charge where
the individual meets prescribed financial
criteria set by provincial legal aid plans; and
(3) about access to duty counsel and the means
available to access such services... The
additional requirement advocated by the
[accused] is not supported by authority.
Moreover, the addition of a more explicit
reference to counsel of choice as advocated by
the [accused] would add nothing to the

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15

information conveyed to the detainee. The
right to retain and instruct counsel means, at
least, the right to hire a lawyer of the
detainee's choice. This is the understanding of
the right on which the cases defining the
informational requirements have been based.
The requirements that have been engrafted
onto the informational component in Brydges
and Bartle were added to recognize that,
absent information about legal aid and duty
counsel, detained persons may think they
cannot get legal advice other than through
retaining counsel of their choice. For example,
in Brydges, the detainee had expressed an
interest in consulting a lawyer but assumed
that would not be possible because he could
not afford to pay. In Bartle, the detainee had
assumed that a lawyer would not be available
out of office hours and had no idea of how to
contact a lawyer at the time of his detention.
Implicit in these cases is that the right to
retain and instruct counsel is understood to
refer to privately retained counsel of the
detained person's choice. Addition of the
words advocated by the [accused] would,
therefore, not add anything.
Moreover, the addition of this sort of language
would not help to achieve the fundamental
purpose of the duty to advise detained persons
of their right to retain and instruct counsel.
The purpose of this informational component is
to enable a detained person to make an
informed choice about whether to exercise
the right to counsel and other Charter rights
such as the right to silence… The focus of the
informational component, therefore, is the
immediate need of the detainee for legal
advice. The practical problem addressed by
the cases is not that detainees fail to
understand that they may hire a lawyer of
their choice, but rather that they assume this
right will be of no help in getting the sort of
immediate
advice
they
require
upon
detention….
In my view, the addition of the words
advocated by the [accused] would not advance
the purpose for which a detainee is told of the
right to retain and instruct counsel without
delay.

16

The law on the informational component has,
for the most part, opted for simplicity rather
than technicality, leaving the precise demands
of the right to counsel in a particular case to
be worked out as part of the implementational
duties of the police rather than by insisting
that detainees be given a detailed statement
of what the right to counsel means. The cases
requiring additional information beyond that
contained in the words of the Charter itself
have added information which the courts
thought was essential to make the right
meaningful in light of the detained person's
need for immediate access to legal advice.
These additions are designed to meet the
practical needs of the detained person, not to
assure that the detainee receives a minute
exposition of the intricacies of the right
itself. In my view, no such rationale can be
advanced for the addition proposed by the
[accused].
I recognize, as the [accused] points out, that
many of the forms of caution in use across the
country appear to have explicit words to the
effect that the detainee has the right to
counsel of choice. I am not suggesting that
these cautions are therefore inappropriate. I
simply conclude that there is no constitutional
requirement that the detainee be advised of
his or her right to retain and instruct counsel
in a way that more explicitly points out that, as
is undoubtedly the case, the right is to counsel
of choice. [references omitted, paras. 22-29]

Furthermore, even if there was a requirement
for the police to be more explicit about
consulting counsel of choice, the police
nonetheless adequately informed the accused of
that right in the circumstances and he
understood from what he was told he had the
right to retain and instruct counsel of his choice.
After reading the accused his rights the officer
asked him if he had a lawyer. He immediately
named Mr. Mancini. As Justice Cromwell noted,
the accused “immediately asserted the right to
consult with a lawyer of his own choice.” The
appeal was dismissed.
Complete case available at www.canlii.org

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Volume 5 Issue 1
January/February 2005

STATEMENT ADMISSIBLE
DESPITE s.10(b) VIOLATION
R. v. C.J.L., 2004 MBCA 126
The accused, a suspect in a
sexual assault case against his
five year old niece, attended the
police station for an interview.
He was advised of his right to
counsel, but was told he could have legal aid if he
was charged with an offence. This warning did
not conform strictly with s.10(b) Charter
requirements. At his trial in the Manitoba Court
of Queen’s Bench, the trial judge concluded that
the accused was aware of legal aid before his
statement was made, but understood it was only
available if he was charged and during trial.
Despite finding a s.10(b) violation, the judge
nevertheless admitted the accused’s statement,
which
was
exculpatory
in
nature
but
nevertheless used to cross examine him. The
accused appealed to the Manitoba Court of
Appeal arguing, in part, that the statement—
which followed a Charter breach—should have
been excluded. The unanimous Manitoba Court of
Appeal, however, found the statement properly
admitted.
When determining whether evidence following a
Charter breach will be admissible pursuant to
s.24(2), courts use a framework that analyzes
three factors:
• the nature of the evidence and its impact, if
admitted, on trial fairness;
• the seriousness of the Charter violation; and
• the effect of excluding the evidence on the
repute of the administration of justice.

Nature of the Evidence
The accused suggested that since the statement
was conscriptive evidence—created by the
Charter breach—the trial would be rendered
unfair by admitting it. However, Justice
Feldman, authoring the unanimous judgment,

Volume 5 Issue 1
January/February 2005

noted that not all evidence flowing from a s.10(b)
breach is always inadmissible. He stated:
As has been made clear in a number of
[Supreme Court of Canada] cases to be
conscriptive, evidence must be compelled by
the authorities from the accused. Evidence
obtained in violation of s. 10(b) is prima facie
compelled, and thus conscriptive evidence but
it is not, for that reason, automatically
excluded. [references omitted, para. 20]

In this case the trial judge had found that the
accused would have talked to police even if he
had been told legal aid was immediately available.
In other words, the Charter violation had no
impact on his interview with police—he would
have talked anyway because he wanted to help
his position. The Manitoba Court of Appeal would
not interfere with the trial judge’s assessment
that the admission of the statement would not
adversely impact trial fairness.

Seriousness of the Violation
Although a s.10(b) breach itself may be a serious
Charter violation and render a statement
inadmissible, this was not one such case. Justice
Feldman wrote:
Here, there was a partial, but incomplete and
incorrect, provision of s. 10(b) information.
There
was
no
attempt
to
mislead
(acknowledged by the accused), and there was,
I am satisfied, no bad faith on the part of the
police. This is a breach that is neither trivial
nor egregious. My judgment is that, in all the
circumstances, it is less serious, rather than
more, and not so serious as to compel
exclusion. [para. 28]

Effect on the Administration of Justice
The charge of sexual assault is extremely
serious and the accused’s statement was used
only to cross examine him and challenge his
credibility. Justice Feldman ruled that its
exclusion, not its admission, could bring the
administration of justice into disrepute:

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17

I cannot say with any certainty that the
statement was of no value to the Crown's case.
Excluding this evidence in this serious case,
where there was very little else, if anything,
apart from the accused's own testimony, that
might reasonably touch directly on his
credibility, could well bring into disrepute the
administration of justice… I would say the
system's reputation would be better served by
its admission. [references omitted, para. 30]

words, the smell of alcohol may be present in a
person’s breath without alcohol being in their
body. In concluding that the odour was
sufficient to provide the necessary level of
suspicion, Justice Whelan stated:
I accept that the Officer genuinely possessed
the suspicion and believed it to be reasonable.
An objective scrutiny requires that I find the
Officer’s suspicion was reasonable. I don’t
believe that it requires that the Officer’s
evidence be scrutinized in light of all the
evidence before the Court. It’s sufficient to
ask; whether a reasonable person, standing in
the officer’s shoes, with the officer’s
knowledge, would have had a reasonable
suspicion.

The statement was properly admitted but a new
trial was ordered on other grounds.
Complete case available at www.canlii.org

SMELL OF LIQUOR
SUFFICIENT FOR PROPER
ROADSIDE DEMAND
R. v. Butchko, 2004 SKCA 159
The police stopped a vehicle with
three occupants after it was
observed
leaving
a
liquor
establishment, make a u-turn,
accelerate, and fishtail. An odour
of alcohol was detected coming from the vehicle.
The driver was asked to step out of the vehicle
and the officer detected a strong smell of
alcohol on his breath. When asked if he had
anything to drink the driver replied that he had
not. The driver was read the roadside screening
demand, but refused to provide a sample and he
was charged with refusal.
At his trial in Saskatchewan Provincial Court2,
the accused submitted that the smell of alcohol
on his breath, by itself, was insufficient in
providing a reasonable suspicion that he had
alcohol in his body and that the officer required
additional objective indicia of consumption. The
accused filed expert evidence that the smell of
alcohol detected on a person’s breath may not be
indicative of alcohol in the body because the
ethanol may have been eliminated, while the
chemical causing the odour has not. In other

The accused was convicted but appealed to the
Saskatchewan Court of Queen’s Bench. Queen’s
Bench Justice Klebuc allowed the appeal3, set
aside the conviction and entered an acquittal. In
his view, the smell of alcohol on the accused’s
breath was not sufficient to provide a
reasonable suspicion that there was alcohol in his
body. Therefore, there was no valid basis for
the roadside demand and no requirement for the
accused to comply. The Crown appealed to the
Saskatchewan Court of Appeal.
In a unanimous judgment the conviction was
restored. Section 254(2) of the Criminal Code
allows a police officer to make a roadside
demand if they reasonably suspect the driver
has alcohol in their body. The legal threshold,
reasonable suspicion, is low and does not require
a belief that a crime has been committed.
Justice Cameron, delivering the judgment of the
court, adopted the Ontario Court of Appeal’s
view4 where it was ruled that a smell of alcohol
on a driver’s breath was sufficient to found a
reasonable suspicion that the driver had alcohol
in their body. Even though an explanation for the
odour of alcohol may be offered, it does not
detract from the officer’s reasonable suspicion.
Complete case available at www.canlii.org
3

2

2003 SKPC 76

18

4

2004 SKQB 140
R. v.Lindsay (1999), 134 C.C.C. (3d) 159 (Ont.C.A.)

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Volume 5 Issue 1
January/February 2005

ALCOHOL TESTING:
UNCONSTITUTIONAL
PROBATION CONDITION
R. v. Shoker, 2004 BCCA 643
The accused was convicted of
break and enter to a dwelling
house with the intent to commit
a sexual assault. He had entered
the victim’s home, undressed
himself, and tried to climb into her bed. The
victim called 9-1-1 and the accused was
subsequently arrested. As part of his sentence,
he was placed on probation for two years with
several conditions, including one that he abstain
from the possession and consumption of alcohol
and non prescription narcotics and that he
submit to a urinalysis, blood test or breathalyzer
test upon demand of a peace officer to ensure
compliance with the condition. The accused
appealed to the British Columbia Court of Appeal
arguing, among other grounds, that this
probation condition was unreasonable under s.8
of the Charter because there was no
requirement that reasonable grounds were
necessary before such a demand for samples was
made.
In a 2:1 decision, the British Columbia Court of
Appeal
held
that
the
condition
was
unconstitutional. Although s.732.1 of the Criminal
Code allows a sentencing judge to impose a
requirement that the probationer submit to
tests of bodily substances, the condition
imposed was unreasonable and violated s.8
because “there are no legislative or regulatory
standards or safeguards for the protection of
the [accused’s] privacy in the enforcement of
the condition.” Justice Levine, authoring the
majority judgment, wrote:
In the absence of standards and safeguards
for the protection of the liberty, privacy and
safety of the offender, the condition requiring
the [accused] to submit to a urinalysis, blood
test or breathalyzer test on demand has the

Volume 5 Issue 1
January/February 2005

potential to be applied arbitrarily. Although ss.
732.1(c) and (h) may authorize the imposition
of such a condition, neither they nor the
condition provides the appropriate standards
and safeguards present in other statutory
regimes for similar types of searches. In the
absence of such a regime, the offender cannot
be said to be “secure against unreasonable
search and seizure”.
One of the missing safeguards in the probation
condition is the requirement that the
probation or peace officer have reasonable and
probable grounds for suspecting or believing
that the offender has breached the
abstention condition. If amending the
condition to add that requirement would cure
the constitutional defects, this Court could
order that the condition be amended in that
manner. [para. 55-56]

However, simply amending the condition requiring
the presence of reasonable grounds, in the
court’s view, would not conform the condition
with s.8. There still would be no safeguards in
place, such as how samples are to be collected or
used. Although an offender’s reasonable
expectation of privacy is reduced because they
have been convicted of an offence and no longer
enjoy the presumption of innocence, s.8
nonetheless protects this lower privacy interest,
which extends to the taking of breath, urine or
blood. Despite the impact this ruling may have on
enforcing non consumption orders, the court left
it to government to change the law:
I am aware that striking down this commonly
used condition may create difficulty in the
enforcement of abstention conditions in
probation orders. I consider that there is a
gap in the legislation that is the role of
Parliament, not the courts, to fill. Parliament
may wish to enact appropriate standards and
safeguards for demanding bodily samples from
offenders on probation to help authorities
determine whether such offenders are in
compliance with conditions to abstain from the
consumption of alcohol and drugs. In the
absence of such provisions, however, probation
officers and police officers must rely on other
methods of enforcing conditions of abstention,

www.jibc.bc.ca

19

including testimony as to the reasonable
grounds for believing that a person has
breached the condition… [references omitted,
para. 60]

A Different View
Justice Hall, took a different view. In his opinion
the condition, as it stood, was unconstitutional
because it did not require reasonable grounds
that the probationer had ingested alcohol or
drugs before a demand could be made. However,
if reasonable grounds were a requirement to a
demand, the breath and urine tests would not be
constitutionally defective. The blood test, on the
other hand, would be inappropriate. Justice Hall
wrote:
When considering whether the testing
requirements ordered by the sentencing judge
ought to be found to meet constitutional
requirements it seems to me that the degree
of intrusiveness of the tests is a very relevant
factor to consider. This order provides for
three possible tests: a breath test, urinalysis
and a blood sample. In my view, having regard
to the fact that this [accused] has been
convicted and is on probation, he has a
somewhat lowered expectation of interference
by state agents….
The taking of a sample of the breath of an
individual seems to me to not be in any way an
invasive procedure or an interference with
bodily integrity. The taking of a sample of
urine for urinalysis is also not an invasive
procedure provided privacy is afforded for the
taking of the sample. Many persons do this
every day for medical health testing purposes
and it in no way interferes with bodily
integrity… These two types of testing required
by Condition 9 of this probation order, if
conditioned upon the requirement that such a
test can only be demanded upon reasonable and
probable grounds, appear to me to pass
constitutional muster. I do, however, consider
that the requirement for a blood test found in
this Condition is constitutionally unacceptable.
Blood testing is an invasive procedure – the
skin of the subject is broken and a substance
not normally excreted by the body under

20

natural processes is obtained by an agent of
the state. This sort of procedure is normally
performed by someone trained in medical
procedures and is done at a medical lab or the
offices of a medical professional. Such a
procedure seems to me very different in kind
or genus from the aforementioned breath and
urine tests. [references omitted, paras. 7778]

In Justice Hall’s view, a blood test procedure
would require a detailed statutory regime that is
not presently be found in s.732.1 of the Criminal
Code.
The appeal was allowed and the accused’s
probation condition was amended accordingly. He
was now only required to abstain from
intoxicants without a requirement he submit to
testing.
Complete case available at www.courts.gov.bc.ca

NO NEED TO REITERATE
s.10(b) IF ACCUSED
UNDERSTANDS JEOPARDY
R. v. Jones,
(2004) Docket:C34364 (OntCA)
The accused was arrested by
Peel police and advised of his
right to counsel. He said he did
not want to call a lawyer and
was again advised of his right to
counsel before he was interviewed at the police
station. About three hours later the accused was
interviewed
by
Toronto
police
officers
investigating the robbery of a Toronto-Dominion
Bank. Again he was told of his right to counsel
under s.10(b) of the Charter but did not wish to
speak to a lawyer. The accused confessed to
robbing the bank and said he had robbed others.
He agreed to provide a video taped statement
and was told he could discuss the other
robberies then. At the beginning of the video
taped statement the accused was again reminded
he could speak to a lawyer but declined. He

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

provided a full confession to robbing the
Toronto-Dominion Bank and also admitted to
robbing several other specific banks when
questioned. He also identified himself in
surveillance photographs taken during the
robberies. He was convicted by a jury in the
Ontario Superior Court of Justice on seven
counts of robbery and other related offences.
The accused appealed to the Ontario Court of
Appeal arguing, in part, that the police failed to
advise him of his right to counsel when the police
discretely, but fundamentally changed their
questioning from the Toronto-Dominion Bank
robbery to the other robberies in the course of
the video taped confession. The appeal court,
however, disagreed:
The [accused] was fully aware of his right to
counsel. He had been told of that right on
four occasions and declined to speak with a
lawyer. When he was reminded of his right to
counsel at the outset of the videotaped
statement, he knew that the police were going
to question him about the Toronto-Dominion
Bank robbery and any other robberies that the
[accused] was prepared to tell the police
about.
He understood the nature of his
jeopardy. He knew that it would extend to any
of the bank robberies that he chose to tell the
police about. The [accused] had sufficient
information to permit him to make an informed
decision as to whether he wished to speak to a
lawyer before talking to the police about the
various robberies he had committed…[para. 9]

The statement had been properly admitted and
the appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
Nothing so conclusively proves a man's ability to
lead others as what he does from day to day to
lead himself—Thomas J. Watson

Volume 5 Issue 1
January/February 2005

JUDGE LACKS JURISDICTION
FOR EXCLUSIVE RELEASE
HEARING
R. v. Davidson, 2004 ABCA 337
After failing to appear in court
on a probation violation, a
provincial court judge issued an
arrest warrant requiring the
accused be brought before him to speak to
release. The warrant was executed but a justice
of the peace declined to conduct a release
hearing because of the endorsement requiring
the accused be brought before the judge issuing
the warrant. The accused successfully filed a
motion in the Alberta Court of Queen’s Bench
seeking an order of certiorari and mandamus.
The Queen’s Bench judge concluded the
Provincial Court judge lacked jurisdiction to
affix the condition that the accused be brought
before him. A release hearing was ordered. The
Crown appealed to the Alberta Court of Appeal
arguing, in part, that
LEGAL LANGUAGE
a provincial court
Certiorari—a writ issued from a
superior court inquiring into the
judge
does
have
validity of proceedings in an
jurisdiction
to
inferior court and commonly used
for the purpose of quashing
endorse an arrest
orders.
warrant
reserving
Mandamus—a writ issued by a
superior court used to ensure the
exclusive jurisdiction
proper exercise of discretion.
to
hold
release
hearings.
Section 511(1)(c) of the Criminal Code directs
that “a warrant issued under this Part shall...( c)
order that the accused be forthwith arrested
and brought before the judge or justice who
issued the warrant or before some other judge
or justice having jurisdiction in the same
territorial division, to be dealt with according to
law.” Crown submitted that this section clearly
authorized the judge issuing the warrant to
specify that the accused be brought before
them, rather than another justice or judge. The
accused, on the other hand, asserted he must be

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21

brought before the issuing judge or another
judge or justice having territorial jurisdiction.
The unanimous Alberta Court of Appeal ruled
that any endorsement reserving exclusive
jurisdiction is improper. Section 511 must be
read in a way that conforms with the duty of a
peace officer to bring an arrestee before a
justice without unreasonable delay under s.503
of the Criminal Code. Furthermore, an
endorsement reserving exclusive jurisdiction for
release hearings may unnecessarily prolong an
arrestee’s detention in contravention of ss.7 and
9 of the Charter. Section 9, the provision
protecting a person from arbitrary detention, in
addition to a person’s right to a bail hearing
without
unreasonable
delay,
support
an
interpretation of s.511 that reduces—not
prolongs—the period of time between arrest and
a release hearing. The members of the court
stated:
In our view, the section, read as a whole, is
clear and sets out what a peace officer must
be directed to do upon arrest. The officer is
to be given an initial choice of either bringing
the accused before the judge or justice
issuing the warrant, or bringing the accused
before “another justice within the same
territorial jurisdiction.” Such an interpretation
follows from the use of the word “or” and the
fact that the statute provides an option. If
the peace officer chooses to bring the
accused before the judge or justice issuing
the warrant, however, and the judge or justice
is not available, he or she must then seek out
another judge or justice to comply with the
statutory injunction that the entire process be
accomplished “forthwith.” Furthermore, we
note that when a warrant is issued by a
justice, rather than a Queen’s Bench judge,
section 2 of the Criminal Code makes clear
that the phrase “another justice” includes
either a Provincial Court judge or a Justice of
the Peace.
It follows that a warrant cannot be endorsed
to require that an accused be brought back
before the issuer alone to speak to release.

22

As well as being consistent with the words of
the statute, this interpretation of s. 511avoids
conflict with the right of an arrested party,
found in s. 503 of the Criminal Code, to seek
release on bail without unreasonable delay. The
law on bail makes it clear that if an accused is
not released by the peace officer or the
officer in charge, there is a duty to bring the
accused into the judicial process without delay.
This is to ensure that a person is not held
incommunicado…It
is
a
fundamental
cornerstone of criminal procedure intended to
ensure that the arrest and detention are
brought to an impartial judicial officer as soon
as possible. This right is clearly enshrined in
ss. 7 and 9 of the Charter. [references
omitted, paras. 22-24]

And further:
The final factor supporting our interpretation
of s. 511 is that it best suits the
effective administration of justice. Arrest
warrants issued from the bench, or pursuant
to an information, oblige the police to arrest
an accused and present him or her before the
court. The peace officers charged with this
task, however, have neither the time nor the
resources to wait for a judge or justice who
has issued a warrant to make himself available.
Nor are the interests of justice served by
keeping arrested people in custody, when they
are likely candidates for bail, just because it is
necessary to comply with a particular judge or
justice’s schedule. Along with being unfair, this
is also an inefficient use of custodial
resources. [para. 30]

Thus, the Alberta Court of Appeal concluded,
“there is no jurisdiction under s.511(c) for
Provincial Court judges to seize themselves of
release hearings to the exclusion of the other
mechanisms provided for in the Criminal Code.”
Complete case available at www.albertacourts.ab.ca

Note-able Quote
Anyone can steer the ship when the sea is calm—
Publius Syrus

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

ADJUDICATOR MAY INFER
PROPER DEMAND
FOR ADP
Taylor v. Superintendent of Motor Vehicles,
2004 BCCA 641
A driver was stopped for
speeding and the officer noted a
smell of liquor on his breath and
other signs of intoxication. He
admitted to consuming beer and
subsequently failed a roadside screening test.
The breathalyzer demand was read but the
petitioner refused to provide a breath sample.
As a consequence, he was issued with an
administrative driving prohibition under the
Motor Vehicle Act. The driver was then issued a
promise to appear for impaired driving and
refusal under s.254 of the Criminal Code and
driven home.
The driver applied for a review of the
administrative driving prohibition. He argued
that the report submitted by the officer in
support of the prohibition indicated that a
“demand” was refused, but it was unclear what
type of demand was made—breath samples,
identification, assistance, or to follow the
officer? In his submission, there was no direct
link from the demand on the card to the demand
required under s.254 and it was therefore not
possible for the adjudicator to find that a s.254
breath demand had been made.
The adjudicator, however, inferred that when
the officer said she read the breath demand in
her report that she read the demand from a
standard card issued to police officers. On
appeal to the Supreme Court of British Columbia,
Justice Grist set aside the decision of the
adjudicator because there was “no evidentiary
basis of what was actually said and no basis for
the assessment of the quality of the demand.”
Simply because the demand was made from a
card did not support the inference it was made
from the standard card kept by officers that

Volume 5 Issue 1
January/February 2005

set out a breath demand that complies with
s.254. The Superintendent of Motor Vehicles
then appealed Justice Grist’s decision to the
British Columbia Court of Appeal.
In a unanimous judgment, the British Columbia
Court of Appeal allowed the appeal. Justice
Newbury, authoring the court’s opinion, stated:
We need not decide whether the facts here
will support a criminal conviction, although I
take [the driver’s] point that a divergence
between the criminal statute and the Motor
Vehicle Act on points such as this would be
undesirable.
The fact remains that the
adjudicator here is held only to a civil standard
and is not bound by the normal rules of
evidence, and that the standard of review is
one of patent unreasonableness.
Applying
these standards, I am of the view that it
cannot be said the adjudicator's decision was
patently unreasonable. Indeed, I think the
adjudicator was entitled to take notice of the
contents of the cards carried by police
officers providing the officially sanctioned
wording for demands under s. 254 for breath
or blood. The box on the form ticked by the
constable was evidence that the demand had
been made. It would, in my view, be carrying
technicality much too far to require that the
actual wording be provided to the adjudicator
before could infer what words were used and
whether a proper demand was made. The
purpose of the cards carried by police officers
is to ensure that approved wording is used
uniformly and that disputes of this kind do not
arise. The fact that the police officer did not
write out in longhand the warning she gave is
not in my opinion fatal to the validity of the
demand and constitutes evidence reasonably
capable of supporting the adjudicator's
conclusion that a demand was made under s.
254 of the Criminal Code. [para. 6]

The adjudicator’s decision—inferring the
reading of the proper breath demand—was
restored.
Complete case available at www.courts.gov.bc.ca

www.jibc.bc.ca

23

WITHOUT DETENTION, NO
RIGHT TO COUNSEL
R. v. Bottle, 2004 BCSC 1667
After stopping the accused for
going 105 km/h in a 100 km/h
zone and for no licence plate
light, a police officer issued him
a notice and order and speeding
warning. A CPIC query revealed the accused had
a criminal record, including drug offences. As
the accused was about to get back into his
vehicle—a Ford Expedition—the officer asked
him if he minded being asked some questions.
The accused said no and walked back to the
officer where he was asked, among other things,
if he had any firearms, stolen property or
narcotics. The accused answered no, but with
downcast eyes, which differed from his other
responses. This aroused the officer’s suspicion
and the accused was asked if he minded his
vehicle being searched. He replied, “No, I don’t.”
The officer then completed a written consent to
search form, which the accused signed. The
officer then entered the passenger’s side of the
vehicle and smelled raw marihuana. The officer
asked the accused if he was a user and smoked
marihuana. The accused said yes and produced a
tin containing marihuana roaches. He was then
arrested for possession of marihuana and
informed of his rights under s.10(b) of the
Charter. He declined counsel and was advised of
his right to remain silent.
The officer returned to the vehicle and
continued the search, finding a golf travel bag
containing three pails of cannabis bud. The
accused was then arrested for possession for
the purpose of trafficking and again was
Chartered and warned. He now wanted to call a
lawyer. During a voir dire in the Supreme Court
of British Columbia the officer testified he did
not have reasonable grounds to search, but only
a suspicion and that he would have let the
accused go if he had not consented.

24

The accused argued he had been arbitrarily
detained (s.9), denied his right to counsel
(s.10(b)), and subject to an unreasonable search
(s.8), contrary to the Charter. Justice Meiklem,
however, disagreed. Charter rights under s.9 and
10 are only engaged if there is a detention. In
this case, the officer’s extra questioning did not
amount to a detention. The accused was told he
was free to go before questioning began.
Furthermore, there is no stand alone right to
counsel in non-detention circumstances before
obtaining consent. Finally, the consent obtained
was valid. The informational components of
proper consent had been conveyed in the consent
to search form. The Crown rebutted the
presumption of a warrantless search and no s.8
breach had been established. The evidence was
admissible.
Complete case available at www.courts.gov.bc.ca

RECORDING DEVICES
ALLOWED IN BC COURTS
On December 13, 2004
British Columbia Provincial
Court Chief Judge Baird Ellan
released a revised media
policy, which now permits
recording devices in provincial
courtrooms. Generally, the policy of the court
was to prohibit the use of recording devices.
Now, accredited journalists presenting an
Accreditation Card to the sheriff will be allowed
to bring recording devices into the courtroom.
However, recording devices may only be used if
they do not disrupt the proceedings and their
use does not impose any extra expense on the
court. Furthermore, the recordings may only be
used to verify a journalist’s notes. The
recordings may not be copied or used in any
other way, such as for broadcast. Despite this
new policy, a presiding judge retains the
discretion to exclude recording devices in a case
or part of a proceeding. For more information on
this new policy check www.provincialcourt.bc.ca

www.jibc.bc.ca

Volume 5 Issue 1
January/February 2005

2004 Roll of Honour

ON-DUTY DEATHS RISE

Corporal James Galloway

On-duty peace officer
deaths in Canada rose
by one in 2004. Last
year,
seven
peace
officers lost their lives
on the job. This is one
death above the 10-year
lows of six deaths in
1996, 1998, 1999 and
2003.

Royal Canadian Mounted Police, CAN
End of Watch: February 28, 2004
Cause of Death: Gunfire

Constable Chris Garrett
Cobourg Police Service, ON
End of Watch: May 17, 2004
Cause of Death: Stabbed

Constable Tyler Boutilier
Ontario Provincial Police, ON
End of Watch: May 23, 2004
Cause of Death: Automobile accident

Motor vehicles, not guns, posed the greatest risk
to officers. Over the last 10 years, 37 officers
have lost their lives in circumstances involving
vehicles, including automobile and motorcycle
accidents (26), vehicular assault (2), and being
struck by a vehicle (9). These deaths account for
nearly 50% of all on-duty deaths, which is more
than three times the next leading causes of
aircraft accidents and gunfire, each taking 11
lives from 1995 to 2004. On average, 15 officers
every two years lost their lives during the last
decade, while 1997 and 2002 had the most
deaths at 11 per year.

Parole Officer Louise Pargeter
Correctional Service of Canada, CAN
End of Watch: October 6, 2004
Cause of Death: Assault

Customs Inspector Adam Angel
Canada Border Services Agency, CAN
End of Watch: October 17, 2004
Cause of Death: Heart attack

Auxiliary Constable Glen Evely
Royal Canadian Mounted Police, CAN
End of Watch: November 13, 2004
Cause of Death: Vehicular Assault

Constable Michael Siydock

“They are our heroes.
We shall not forget them.”5

Ontario Provincial Police, ON
End of Watch: November 26, 2004
Cause of Death: Heart attack

Canadian Peace Officer On Duty Deaths (by year)
Cause
2004
2003
2002
2001
Aircraft accident
Assault
Auto accident
Drowned
Fall
Gunfire
Heart attack
Motorcycle accident
Natural disaster
Stabbed
Struck by vehicle
Training accident
Vehicular assault

Total

2000

1999

1

2

1

5

2
1

1

1

1
1

2

2
1
1

3

1998

1997

1996

4

1995

Total

1

11
1
23
4
1
11
6
3
1
2
9
2
2

2
1

2
1

2
1

4

3
1

2

2

1

1
1
2

1
2

1
1
1
3

2

2
1
1

9

6

1
1

7

6

11

7

1
1

6

1

11

6

7

76

Source: Officer Down Memorial Page www.odmp.org/canada [accessed January 21, 2005]
5

Inscription on Canadian Police and Peace Officer Memorial—Parliament Buildings

Volume 5 Issue 1
January/February 2005

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25

MERE POSSIBILITY
CONVERSATION OVERHEARD
NOT A s.10(b) BREACH
R. v. O’Donnell, 2004 NBCA 26
The accused was arrested for
impaired driving, Chartered and
warned
and
read
the
breathalyzer demand. After
speaking to his lawyer on a
telephone located in a small room with the door
partially open, he provided a breathalyzer sample
and failed, resulting in a charge of over 80mg%.
During a voir dire in New Brunswick Provincial
Court to determine the admissibility of the
breathalyzer certificate, the accused testified
that although he could hear voices outside the
phone room—but not the words—it did not
interfere with his conversation with his lawyer.
The officer testified he did not hear the
accused’s conversation with counsel.
The Provincial Court judge concluded that the
accused’s right to counsel under s.10(b) of the
Charter had been infringed because it was
“theoretically” possible for the officer to hear
what was being said, but the certificate was
admitted in any event pursuant to s.24(2). The
accused was convicted. He appealed to the New
Brunswick Court of Queen’s Bench arguing the
trial judge erred in admitting the certificate,
but his appeal was dismissed. In the appeal court
justice’s opinion, the mere possibility that the
accused’s conversation could be overheard was
insufficient for a s.10(b) breach. The accused
further appealed to the New Brunswick Court of
Appeal.
Justice Robertson, authoring the unanimous
judgment, first examined the test for privacy
included in s.10(b), stating:
It is settled law that the right to retain and
instruct counsel, under s. 10(b) of the Charter,
includes a corollary right to consult in private.
Without the requisite degree of privacy, the
constitutional right to counsel becomes

26

illusory. Although waiver of the right is a
possibility, the issue does not arise in the
present case. While the amount of privacy
need not be great, at a minimum, an accused
must be able to converse with his or her
lawyer without the conversation being
overheard. Moreover, those who exercise their
right to counsel are not required to request
privacy or greater privacy than what the police
are willing to provide. Furthermore, the right
to consult in private extends to legal advice
that is sought over the telephone and it
matters not whether the advice sought is of
minimal scope (whether to provide breath
samples). Indeed, nearly all the privacy cases
involve telephone consultations following a
demand for breath samples…
The legal rationale for the privacy requirement
is not complicated. An accused must be able to
discuss the circumstances of his or her
detention without fear of being overheard…
In theory, a frank exchange between an
accused and counsel may require the making of
incriminating statements if uttered in the
presence of the police. Without privacy, the
law presumes that an accused was unable to
converse freely, thereby affecting his or her
ability to obtain advice and make an informed
decision as to what should be said or
done…[paras. 4-6, references omitted]

The Court of Appeal then reviewed four tests to
determine which one was the appropriate test
for determining whether the right to consult
counsel in private was infringed. These tests
were articulated as follows:
1. the accused must establish, on a balance of
probabilities, that the police did in fact
overhear the accused’s conversation with
counsel;
2. the accused must establish, on a balance of
probabilities, that it was more probable than
not that the police did or could overhear the
accused’s conversation with counsel. The term
“could” in this context means a “real” or
“substantial” possibility;

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3. the accused must establish, on a balance of
probabilities, that there was a possibility the
police overheard the accused’s conversation
with counsel. This test recognizes a breach
when there is a “theoretical” or “mere
possibility” that police overheard the
privileged conversation, such as failing to
close the door to the room where the accused
is speaking with his lawyer on the telephone;
or
4. the accused must establish, on a balance of
probabilities, that the accused reasonably
believed that the police could overhear the
accused’s conversation with counsel and
whether this belief inhibited the accused’s
conversation with counsel. This two-prong
test, referred to as the “reasonable
apprehension test”, is subjective—it focuses
on what the accused thought—and requires
the accused to have suffered prejudice—
their ability to effectively communicate with
counsel was affected (they would have acted
differently but for their privacy violation).
Justice Robertson rejected test 1, 3, and 4 and
chose the second test as the correct one to
apply as the test for privacy. He held:
The second formulation poses the following
question: whether it was more probable than
not that the police did or could overhear the
accused's telephone conversation with counsel.
What sets this formulation apart from the
first test is that emphasis is also placed on
whether the police "could" have overheard the
conversation, in addition to whether they
actually "did". In my view, this is the proper
test. It recognizes that uncertainty over
whether the accused was denied the requisite
degree of privacy may be resolved in favour of
the accused. Consequently, the test can be
applied without the court having to make a
credibility finding either for the police or the
accused. Moreover, the test is objective in
that it is applied from the viewpoint of a
disinterested observer. I hasten to add that
to distinguish the second formulation from the
third, it is necessary to ask whether, on a

Volume 5 Issue 1
January/February 2005

balance of probabilities, there was a "real" or
"substantial" possibility that the police could
have overheard the accused's conversation
with counsel. Above all else, it is important to
recognize that there is no room in law for the
third and fourth formulations of the test.
[para. 12]

In this case, the trial judge erred. He applied
the mere possibility standard. The theoretical
possibility that the police were able to overhear
the accused’s conversation with his lawyer was
insufficient to find a breach of his privacy right
under s.10(b) of the Charter.
Complete case available at www.canlii.org

ADDITIONAL SENTENCE
INVALIDATES PROBATION
ORDER
R. v. Amyotte, 2005 BCCA 12
The accused was sentenced to
two
years
in
prison
for
possession of stolen property
and 30 days concurrent for
possession of cocaine and two
years probation following each sentence. Some
19 months later he was sentenced to a further
20 months for theft, to be served concurrently
with his earlier two year term. With the five
month overlap, the accused’s sentence would
total more than 40 months. The accused
appealed his sentence to the British Columbia
Court of Appeal with respect to the probation
orders, arguing they were invalid.
Under s.731(1)(b) of the Criminal Code, a
probation order may be imposed on an offender
if the offender is sentenced to imprisonment for
a term not exceeding two years. Furthermore,
s.139(1) of the Corrections and Conditional
Release Act deems a person sentenced to
additional time while currently serving a
sentence to be sentenced to one sentence,
starting at the beginning of the first sentence

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27

and ending at the expiration of the last
sentence.

read their Charter rights, and transported
separately to the police detachment.

In this case the sentenced overlapped by about
five months and the total sentence, when adding
the two sentences together, exceeded two years
(see Figure 1). Therefore, the probation orders,
which were initially valid when imposed on the
first sentence, became invalid when the second
sentence was imposed.

At the detachment the accused asked to speak
with a lawyer, which was facilitated. Shortly
afterwards, she was asked if she would consent
to a search of her residence. After the accused
said she would not say anything until she saw her
11 year old daughter, the police drove her home,
picked up the daughter, and brought them both
back to the detachment. Police then asked the
accused to sign a consent to search form, told
her she was a suspect in a robbery and again
advised her she was entitled to speak to a
lawyer. After speaking with counsel a second
time, the accused signed the consent form.
During the search of her residence the police
seized a ski mask and jacket. The accused’s male
companion was interviewed and provided a
statement to the police implicating the accused
in the robbery.

Figure 1
1st sentence: 2 years
2nd sentence: 20 months
Total sentence: 3 years 4 months and 13 days

The probation orders were quashed.
Complete case available at www.courts.gov.bc.ca

EVIDENCE ADMISSIBLE
DESPITE UNCONSTITUTIONAL
ARREST
R. v. Scott, 2004 NSCA 141
Following the early morning
robbery of a convenience store
by a female wearing a ski mask,
a police tracking dog traced
footprints in the fresh snow to
an apartment building. On the approach to the
parking lot of the apartment building, police saw
a red or wine coloured Grand Prix or Grand AM
leaving the parking lot at an unusually high speed.
Shortly thereafter two police officers observed
a wine coloured Grand Prix enter a service
station.
The
officers
approached
the
occupants—the accused and her adult male
companion—and asked them to submit to a pat
down search. Although they were not arrested,
officers accompanied them as they went about
their business at the service station for about
half an hour. In the meantime, police determined
the male companion had a criminal record and
was recently released on parole. The two were
subsequently arrested, given the police caution,

28

At her trial in the Supreme Court of Nova Scotia
the judge admitted the evidence seized by police
from the accused’s residence. Although the
judge concluded the accused had been detained
at the shell station, he ruled that the police had
articulable cause to detain her to further their
investigation. However, the judge ruled that
when the arrests were made the police lacked an
objective basis for connecting the arrestees to
the robbery—even though they believed they
had sufficient grounds. Thus, there were no
reasonable grounds for arrest under s.495 of
the Criminal Code. The judge made no explicit
finding of a Charter breach, but nonetheless
admitted the evidence under s.24(2) of the
Charter. She was convicted by a jury of robbery
and wearing a disguise and sentenced to 18
months in jail followed by a term of probation.
However, she appealed to the Nova Scotia Court
of Appeal arguing, among other grounds, that the
seized items were not properly admitted.
On the appeal the Crown conceded that the
arrest of the accused violated her right not be
arbitrarily detained under s.9 of the Charter.

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Since the signed consent was obtained after this
unconstitutional arrest, the accused suggested
the consent was invalid and the items seized
from this warrantless search were derivative
evidence (conscriptive real evidence). Justice
Fichaud, authoring the unanimous Nova Scotia
Court of Appeal decision, noted that an
unconstitutional detention does not automatically
render consent to search invalid. Rather, the
consent to search will be invalid if the Crown
fails to prove it was both informed and
voluntary. However, assuming, without deciding,
that the consent was involuntary and invalid, the
evidence was nonetheless admissible under the
s.24(2) criteria—trial fairness, serious of the
violation, and administration of justice.

Trial Fairness
The evidence obtained from the accused’s
apartment was not derivative evidence—an item
of real evidence discovered when the accused is
conscripted against themselves (usually in the
form of a statement) as a result of a Charter
violation. It was discoverable by another
independent means—the police could have
obtained a search warrant from the statement
of her male companion implicating her in the
robbery. Even if this statement was made to
police while her male companion was under
unconstitutional arrest, it does not render the
evidence derivative. Determining whether
evidence is derivative evidence does not turn on
whether the alternative method of discovery is
constitutional. It is only when the evidence is
found to be conscriptive that the alternative
means of discovery requires compliance with the
Charter. Justice Fichaud stated:
Accordingly, in my view, it is irrelevant to the
admissibility of the seized items whether [the
accused’s
companion]
was
under
unconstitutional arrest when he gave his
statement. His statement was the alternate
route by which the police could have obtained
a search warrant and seized the items. The
seized items were not derivative conscriptive
evidence against [the accused]. [para. 57]

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January/February 2005

Since the evidence was not compelled self
incrimination, the trial would not be rendered
unfair.

Seriousness of the Violation
The Charter breach was not serious. The police
acted in good faith, had sufficient grounds to
detain, and believed they had sufficient grounds
to arrest even though they lacked a sufficient
objective basis. With respect to the detention
of the accused, Justice Fichaud stated:
I agree with the trial judge's conclusion that
the police had "articulable cause" or, as
rephrased in Mann "reasonable grounds", to
detain. The police had tracked the robber
from the store to the apartment building, and
had seen a red or wine coloured Grand Prix or
Grand AM speeding from the apartment
building's parking lot. Shortly after, the RCMP
saw a wine coloured Grand Prix containing [the
accused] and [her companion] enter the Shell
station nearby. The threshold for a detention
is lower than for an arrest. Although the
Crown has conceded that the arrest at 1:15
a.m. violated the Charter, there is no
concession for the earlier detention at the
Shell station. In my view, the trial judge
correctly ruled that the police had articulable
cause or reasonable grounds to detain [the
accused and her companion] at the Shell
station, before their arrest. [para. 35]

Had the initial detention been unconstitutional,
the later unconstitutional arrest would have
compounded the Charter breach rendering it
more serious than an unconstitutional arrest
alone. Furthermore, the police read the accused
her Charter rights and twice provided the
opportunity for her to talk to counsel. Unlike the
determination of derivative evidence, the
constitutionality of the alternative means of
discovery becomes a consideration under this
branch of the s.24(2) analysis. However, as the
court noted, even if her companion’s arrest was
unconstitutional—a fact not conceded to by
Crown—the same factors mentioned regarding

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29

the accused’s arrest would apply. Thus, the
breach was not serious.

organizations and agencies that make up the
policing profession in British Columbia.

Administration of Justice

Fundamental Principles

The trial judge did not err in holding that the
exclusion of evidence, not its admission, would
adversely affect the administration of justice.

Police Officers in the Province of British
Columbia,
along
with
their
respective
organizations and agencies, embrace the
following Fundamental Principles, which underpin
the Guiding Values, Primary Responsibilities and
Decision-Making framework.

The appeal was allowed on other grounds, the
accused’s conviction was quashed, and a new trial
was ordered.
Complete case available at www.canlii.org

BC POLICE GET NEW CODE OF
ETHICS
On January 14, 2005 the
British Columbia Police Code
of Ethics was unveiled at the
Justice Institute of British
Columbia during a formal
signing ceremony. The Code
was endorsed by the BC Association of Chiefs of
Police, RCMP, BC Association of Municipal Chiefs
of Police, Vancouver Police Officers Association,
Vancouver Police Union and BC Federation of
Police Officers.

The British Columbia Police Code of Ethics
The people of British Columbia expect the police
to serve with courage, fairness, impartiality and
integrity and to apply democratic principles that
honour human dignity in the pursuit of justice.
Recognizing that the policing profession is
distinguished by the character and values of the
individuals within it, the British Columbia Police
Code of Ethics reflects the commitment of all
Police Officers in British Columbia, regardless of
their rank or position, to ethical principles and
values, and acceptance of the responsibilities
and privilege that accompany public service.
Moreover, it is recognized that the Police Code
of Ethics applies both individually and
collectively, and as such applies equally to the

30

•
•
•
•
•
•
•

democracy & the rule of law
justice & equality
protection of life & property
safeguarding the public trust
that the police are the public and the
public are the police
the principles of the Constitution of
Canada
the rights enshrined in the Charter of
Rights & Freedoms

Guiding Values
Police Officers in the Province of British
Columbia,
along
with
their
respective
organizations and agencies, look to the following
Guiding Values, which should direct all our
decisions. Moreover, we recognize that our
decisions will be judged according to how well
they correspond to these values.
•
•
•
•
•
•
•
•

citizenship
courage
fairness
impartiality
integrity
loyalty
public service
respect

Primary Responsibilities
Police Officers in the Province of British
Columbia,
along
with
their
respective
organizations and agencies, affirm the following
Primary Responsibilities, which are defined in
terms of three key relationships. First, there is

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January/February 2005

the Public, for whom we serve. Next there are
Professional Partners, with whom we work, and
ourselves Personally, to whom we must be true.
Moreover, we recognize that responsibility
occurs personally and collectively, and that
accountability must accompany responsibility for
it to be effectual.

The Public
Our basic policing duties are to protect lives and
property, preserve peace and good order,
prevent crime, detect and apprehend offenders
and enforce the law, while at the same time
protecting the rights and freedoms of all
persons as guaranteed in our Charter of Rights
and Freedoms. In fulfilling these duties, we must
strive for excellence, which includes the
exercise of professional discretion and judgment
in a manner consistent with our Fundamental
Principles and Guiding Values. Recognizing,
however, that the ability of the police to
perform their duties is dependent upon public
approval, support and willing cooperation, we
must also provide open, responsive, impartial and
accessible service. In other words, to safeguard
the public trust, we will be responsible to the
public and accountable publicly for what we do.

The Policing Profession and Partners
Consistent with our duties and responsibilities to
the public, we are also responsible to the policing
profession. First, we must always respect and to
the best of our abilities abide by the standards
of the profession, while at the same time seeking
to improve them. To accomplish this, we will
demonstrate a willingness to engage in open
dialogue, which raises important issues and
significant opportunities that can advance the
profession for the purpose of providing better
policing service to the public. This entails an
openness to change and recognition of the need
for the policing profession to develop informed,
collaborative and participative police officers.
In addition to the policing profession, we are
responsible to other professions that also serve

Volume 5 Issue 1
January/February 2005

the public. We must always cooperate with other
police and law enforcement professionals, and
with all those in the criminal justice system, in
order to develop an open, just, and impartial
justice system. As well, we must always strive to
cooperate with other public service professionals
in order to advance the public good. This involves
the sharing of information in a relationshipbuilding
manner
that
celebrates
the
interdependent nature of professionals in
promoting the goals of the justice system. This
information sharing must balance confidentiality
needs and due process with the needs of
professionals, who are working for justice and
the common good.

Personally
We accept personal responsibility for acting
legally and ethically. The Police Officer is a
model of discipline under trying circumstances,
but to achieve this we must practice humility and
a desire to learn from our experiences and
mistakes and those of others. As individuals we
must have a clear idea of how to separate
private advantage from public service and to
make decisions that avoid conflicts of interest
and the appearance of personal gain. As well,
ethical behaviour entails duties that we owe to
ourselves personally. In addition to reflecting
upon what is right and what is wrong in the
context of policing, we must as individuals
develop a proper balance between our work and
our personal life

Ethical Decision-Making
Acting responsibly towards the Public, the
Policing Profession and its Partners, and to
ourselves Personally, will reduce the number and
severity of ethical difficulties faced in policing,
but it will not eliminate them. Ethical difficulties
emerge when Police Officers, either as
individuals or collectively, act in a way that is not
defensible on legal and ethical grounds. To avoid
such difficulties, Police Officers, along with
their respective organizations and agencies,

www.jibc.bc.ca

31

should ask themselves the following questions,
which help to identify ethical issues and to test
decisions on ethical grounds.
1. Is the activity or decision consistent with
organizational or agency policy and the law?
2. Is the activity or decision consistent with the
British Columbia Police Code of Ethics?
3. What are the outcomes or consequences
resulting from the activity or decision and
whom do they affect?
4. Do the outcomes or consequences generate
more harm than good? Do they create
legitimate controversy?
5. Is the activity or decision likely to raise
actual or perceived conflicts of interest
where a personal advantage is gained because
of one's professional position?
6. Can the activity or decision be justified
legally and ethically? Would the activity or
decision withstand public scrutiny on legal and
ethical grounds if it resulted in problems that
became known generally?
If the answers indicate that there may be a
question of professional ethics, then consultation
should occur with someone trustworthy and
experienced who can provide reasonable
direction and advice.
Policing is serious work and there are important
issues at stake. It requires not only technical
competence but also a willingness to take
difficult action in trying times. As well, it
requires a recognition that we must act with a
concerted commitment to serve and protect
using democratic principles in the service of the
law while honouring human dignity in the pursuit
of justice. And it is this commitment to
principled policing that distinguishes us as
professionals, both to ourselves and to the
public.

32

COURTS GET TOUGHER ON
FLIGHT FROM POLICE
R. v. Roberts, 2005 ABCA 11
Following a citizen report of a
car prowler in a residential
neighbourhood,
the
police
attempted to stop the 22 year
old accused driving a stolen truck, but he fled
and failed to stop for the emergency equipment.
A pursuit ensued on slippery roads through
major and residential areas, with speeds
reaching 110 km/h. He ran through some
intersections without stopping. Two officers in a
patrol car were about to get out of the vehicle
and lay a spike belt across the road at a
residential intersection when the accused drove
straight at them and rammed the police car head
on, severely damaging it and seriously injuring
the officers inside. He ran from the crash but
was found hiding by a police dog in the yard of a
residence. He fought with officers until the
police dog subdued him. The accused was also
wanted on a warrant for failing to attend court
on an earlier possession of stolen vehicle charge.
The accused plead not guilty and was let out on
bail. He failed to show for his preliminary
hearing and was later arrested, but again let out
on bail. He failed to show for his trial and was
again arrested. He ultimately plead guilty to
possession of stolen property over $5000 and
police pursuit causing bodily harm and apologized
some 17 months after the offence. Charges of
dangerous driving and fleeing an accident scene
were dropped. At his sentencing hearing he told
the judge he ran from police because he had
been using drugs and had amphetamines in the
truck. He said he did not intend to ram the
police car, but the crash occurred because of
speed and road conditions. The judge believed
him and also recognized his guilty plea as a
mitigating factor in sentencing. He sentenced
the accused to about 34 months on the flight
charge, but nothing for the possession charge.

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The Crown appealed the sentence to the Alberta
Court of Appeal.
First, the Alberta Court of Appeal addressed
the non-sentenced possession offence. Noting
that “possession of a stolen vehicle is a serious
offence, especially when the driver recklessly
demolishes the vehicle”, Justice Cote, authoring
the unanimous judgment, concluded that a
sentence for the possession offence concurrent
to the flight offence, as the accused suggested,
would not be appropriate. They require
completely separate elements and intents, even
though they involve the same truck and overlap
in time. Justice Cote stated:
Furthermore, flight causing bodily harm is a
new separate crime. Why would anyone lead
police on a chase if he had been doing nothing
wrong when told to stop, and was not wanted
by police? Why would he do it if he were
driving his own vehicle with his own license
plate? Flight then would be pointless. That
rarely occurs. Usually drivers flee because
they are either then committing another
offence, or have clear evidence of another
offence in their vehicle. Often the vehicle is
stolen.
To give concurrent sentences then would be to
wipe out one of the offences, for all practical
purposes. So long as the penalty given for
flight were not larger, this would be a virtual
judicial repeal of Parliament’s new criminal
flight crime. That would violate Parliament’s
strong message…. Alternatively, if the flight
sentence were equal or higher, a concurrent
sentence would wipe out the predicate offence
which the criminal was fleeing, and so make the
flight successful. It would reward flight, not
punish it. It would take Jonathan Swift to
appreciate the irony. [paras. 33-34]

Second, the mitigating factor attributed to the
guilty plea was militated by the accused’s two
failure to appears where more than a dozen
witnesses, including the two injured officers had
been in attendance. Rather than promptly
pleading guilty gratuitously, he belated his guilty
plea until over 17 months after the offence in

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January/February 2005

exchange for the dropping of several charges.
Moreover, the police had caught the accused red
handed and there were many professional
witnesses making a conviction inevitable. The
sentencing judge should not have given any
significant credit for the guilty plea.
Nor was the accused’s ongoing drug problem or
his use of drugs at the time a mitigating factor.
Rather, it should have been considered an
aggravating factor. “Choosing to drive after
knowingly consuming drugs or alcohol clearly
aggravates any driving offence then committed,”
said Justice Cote. Furthermore, the fact the
accused fled the accident, hid, had to be
tracked, fought with police, and took other steps
to evade conviction also created aggravating
circumstances. As well, the prevalence of vehicle
flight from Edmonton police along with bodily
injury climbing exponentially was also an
aggravating factor overlooked by the sentencing
judge.
Finally, the reason provided by the accused for
evading the police—to escape trouble from drug
offences—was not a mitigating factor at all.
“Those who flee the police and engage in a chase
usually do so to hide something illegal,” said
Justice Cote. “Possessing amphetamines is not a
minor matter, like having an out-of-date address
on one’s operator’s permit.” Similarly, the
suggestion that the collision resulted more from
negligence, rather than an intentional act, was
not mitigation. Justice Cote wrote:
Had the [accused] deliberately rammed the
car containing the two constables, that would
have been a different, deliberate crime, such
as attempted murder, maiming, assault causing
grievous bodily harm, or aggravated assault…
The offence for which the [accused] was
sentenced was causing bodily harm, by
operating a motor vehicle in a manner
dangerous to the public, while being pursued by
a constable in a motor vehicle and failing to
stop to evade the constable (Criminal Code
s.249.1(3)).
No
intent
to
injure
or cause a collision is necessary to complete

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33

that offence. The mode of driving required by
s.249.1(3) is that in s.249(1)(a), dangerous
driving. It is trite law that no intent to injure
is necessary under that section. [paras. 50-53,
references omitted]

In determining a proper sentence in this case,
the only mitigating factors recognized by the
Alberta Court of Appeal were the accused’s
relatively young age, the possibility of
rehabilitation, and his belated remorse. On the
other hand, flight from police is an aggravated
criminal offence. When someone is injured as a
result, the maximum sentence is 14 years,
significantly more serious than criminal
negligence, dangerous driving or impaired driving
resulting in bodily harm. The manner of driving in
this case made a collision highly probable and the
serious injuries resulting were far from fluke,
bad luck nor unforeseeable. In passing s.249.1 of
the Code, Parliament recognized that the
offence is very dangerous to the public, the
moral turpitude is greater than dangerous
driving because of the deliberateness and
contumacy required, and the penalties must be
equal to or greater than penalties of the offence
being fled. The accused’s conduct was dangerous
and resulted from a conscious decision to flee
for some distance. He was not seduced or bullied
by others into the offence and continued to flee
and show his disregard for others even after the
crash.
The accused’s sentence on the flight causing
bodily harm was increased to three and a half
years and an additional four months and 14 days
consecutive for the possession offence was
added, after the court recognized the “globality”
principle that combined sentences should not be
unduly long as well as crediting some time for
pre-trial custody.
Complete case available at www.albertacourts.ab.ca

Note-able Quote
People may fail many times, but they become
failures only when they begin to blame someone
else--Unknown

34

PHYSICAL ACCESS, NOT
VISUAL ACCESS, DEFINES
PUBLIC PLACE
R. v. Clark, 2005 SCC 2

Neighbours in a nearby house
looking across their backyard
from their partially lit family
room saw the accused standing in
his illuminated living room masturbating. They
moved to their darkened bedroom and continued
to watch the accused for 10-15 minutes from a
distance of 90 to 150 feet. At one point the
neighbours used binoculars and a telescope to
confirm what the accused was doing. The police
were called and the accused was arrested and
charged under s.173(1)(a) and (b) of the Criminal
Code. Under s.173(1)(a) it is an offence to
willfully commit an indecent act in a public place
in the presence of one or more persons. Public
place is defined in s.150 of the Code as including
“any place to which the public have access as of
right or by invitation, express or implied.”
Section 173(1)(b) makes it an offence to commit
an indecent act in any place with the intent to
insult or offend any person.
At his trial in British Columbia Provincial Court
the accused was acquitted under s.173(1)(b)
because the judge concluded he did not know he
was being watched nor that he intended to
“insult or offend any person” as required by the
section. However, he was convicted of
committing an indecent act in a public place
under s.173(1)(a) since his living room had been
converted into a public place—since he could be
seen through his window—and willfully did it in
the presence of one or more persons (the
neighbours). The accused’s appeals to the British
Columbia Supreme Court and the British
Columbia Court of Appeal were unsuccessful.
On further appeal to the Supreme Court of
Canada, the accused’s conviction was vacated and
an acquittal was entered. Justice Fish, authoring
the unanimous Supreme Court judgment,

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Volume 5 Issue 1
January/February 2005

concluded that the accused’s living room was not
a public place for the purpose of s.173(1)(a). The
type of access contemplated in the definition of
public place requires physical access within, not
visual access from without. Justice Fish stated:
Section 150 of the Criminal Code uses the
word "access" in reference to a "place" -- in
this case, a private home. And our concern is
with access to that place "as of right or by
invitation". In common usage, "access" to a
place to which one is invited or where one has
a right to be refers to entering, visiting or
using that place -- and not, as I said earlier, to
looking or listening in from the outside. When
we are told that someone has access, as of
right or by invitation, to an apartment, a
workshop, an office, or a garage, this does not
signify to us a mere opportunity or ability to
look through a window or doorway and to see
what is happening inside. [para. 45]
Complete case available at www.scc-csc.gc.ca

COPS AS CROOKS NOT
PERSONS IN AUTHORITY
R. v. Grandinetti, 2005 SCC 5
The police commenced an
undercover operation to obtain
evidence from the accused, the
principal suspect in the murder
of his aunt. The officers, posing as members of a
criminal organization, recruited the accused and
gained his confidence and trust. They engaged
him in various criminal activities, including money
laundering, theft, receiving illegal firearms, and
drug dealing, and encouraged him to talk about
his role in the murder because, as they told him,
they needed to ensure none of the organization’s
members were under police investigation. He was
also told the organization had the ability to
divert suspicion of his involvement in the murder
by using corrupt police officers who could
influence the investigation. He believed they
could influence the prosecution by having
witnesses and physical evidence disappear and he

Volume 5 Issue 1
January/February 2005

ultimately confessed to his involvement in the
murder, provided details and took them to the
crime scene.
At his trial, the judge concluded that the
undercover officers were not persons in
authority and therefore a voir dire to determine
the admissibility of the statements was not
necessary. His statements were admitted and
the accused was convicted of first-degree
murder. He appealed to the Alberta Court of
Appeal, but a majority dismissed his appeal. The
accused further appealed to the Supreme Court
of Canada arguing, among other grounds, that
the undercover officers were persons in
authority because he believed they could
influence his aunt’s murder investigation.

Person in authority-who did the accused
believe he was talking to?
The common law confessions rule requires the
Crown prove beyond a reasonable doubt that a
statement made to a person in authority is
voluntary. If this burden is not met, the
statement is excluded as evidence. The rationale
for this rule is twofold; it encourages statement
reliability and discourages improper police
coercion. In determining whether a confession is
admissible in court, the accused bears the initial
burden of showing there is a valid issue for
consideration that they believed the person
receiving the statement was a person in
authority. If the accused meets this threshold
determination, the burden shifts to the Crown to
prove beyond a reasonable doubt that the
accused did not reasonably believe the receiver
was a person in authority or, if they did hold
such a reasonable belief, that the statement was
nonetheless voluntary.
Generally, a person in authority is someone
engaged in the arrest, detention, interrogation
or prosecution of an accused, but could also
include someone the accused perceives to be
allied with, an agent of, or acting on behalf of or
in concert with the police or prosecuting

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35

authorities. Justice Abella, writing the Supreme
Court of Canada’s opinion, dismissed the
accused’s appeal. She stated:
The test of who is a "person in authority" is
largely subjective, focusing on the accused's
perception of the person to whom he or she is
making the statement. The operative question
is whether the accused, based on his or her
perception of the recipient's ability to
influence the prosecution, believed either that
refusing to make a statement to the person
would result in prejudice, or that making one
would result in favourable treatment.
There is also an objective element, namely, the
reasonableness of the accused's belief that he
or she is speaking to a person in authority. It
is not enough, however, that an accused
reasonably believe that a person can influence
the
course
of
the
investigation
or
prosecution…[paras. 38-39]

In her view, the accused believed the undercover
officers were crooks, not cops. Even though they
said they had corrupt police officers they
controlled and could potentially influence the
murder investigation against him, the coercive
power of the state—which the confessions rule
is designed to address—was not engaged and the
statements were therefore not made to a person
in authority.
Complete case available at www.scc-csc.gc.ca

RANDOM DOG SNIFF NOT A
SEARCH
R. v. Davis, 2005 BCPC 11
The police randomly used a
passive alert narcotic detector
dog aboard a BC Ferry as part
of a drug interdiction operation
to sniff around vehicles on a
parking deck that was open to public access. The
dog indicated on a van after it put its nose up to
the opening of a pop out window and sat down.
The accused was sleeping in the front passenger
seat with the window partially open. As officers

36

approached the van they smelled a strong odour
of fresh marihuana coming from it. They tapped
on the window, identified themselves, and
arrested the accused for possession of a
controlled substance. The vehicle was secured,
taken back to the police station and searched
after a warrant was obtained. Behind the
driver’s seat police found a container with 18
ziplock bags of marihuana and the accused was
charged with possession of marihuana for the
purpose of trafficking.
During a voir dire in British Columbia Provincial
Court to determine the admissibility of the
evidence, the accused argued his rights under
s.8 of the Charter securing him from
unreasonable search and seizure had been
violated. For the purposes of the constitution a
search occurs when police conduct interferes
with a person’s reasonable expectation of
privacy. Although there was little doubt the
accused had a privacy interest in his vehicle’s
interior, Judge Auxier ruled he did not have a
reasonable expectation of privacy in the air
containing the odour of marihuana surrounding
its exterior that was detected by the dog.
Relying on the recent Supreme Court of Canada
decision R. v. Tessling, 2004 SCC 67 in which the
court concluded the use of a FLIR device on a
home was not a search engaging constitutional
protection, the judge found the information
supplied by the dog’s actions did not reveal a
biographical core of personal information nor
reveal intimate details of lifestyle. Thus, the
accused did not have a reasonable expectation of
privacy in the area surrounding his vehicle when
parked on a ferry deck open to public access and
therefore the dog sniff was not a search under
the Charter. On that basis, there was no breach
and the evidence was admissible.
Complete case available at www.provincialcourts.bc.ca

Note-able Quote
Fall seven times. Stand up eight—Japanese

Proverb

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Volume 5 Issue 1
January/February 2005