POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

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

Que.C.A. RE-AFFIRMS
INFORMER PRIVILEGE

The Quebec Court of Appeal found the trial judge had
not followed this procedure, quashed the stay of
proceedings, and ordered a new trial.

R. v. D’Aragon (2000) 150 CCC (3d) 272 (Que.C.A.)
The Quebec Court of Appeal again
reaffirmed the “right to disclosure
cannot
prevail
over
informer
privilege
unless
the
accused
demonstrates why it is necessary to
waive privilege”. In this case, a lower court had ordered
a stay of proceedings when the Crown failed to provide
access to “source meeting reports”, which the accused
argued were necessary to ensure full answer and
defence (a Constitutional right protected under s.7 of
the Charter). These reports were prepared by police
officers and dealt with activities of an informer in
other files containing information involving third party
criminal transactions. In determining whether
privileged information should be divulged to the
accused and met “the innocence at stake” exception to
informer privilege, the Court adopted a four-step
procedure:
1.

the accused has the burden of demonstrating that
without
the
information
requested
their
“innocence” would be at stake,

2.

if it is successfully demonstrated that there are
grounds to conclude that without the information
the accused’s innocence is at stake, the court will
examine the information ex parte to determine if
it is actually necessary for the accused to make
full answer and defence,

3.

if the court is satisfied that disclosure is
necessary, only information that is essential to full
answer and defence should be released, and

4.

prior to disclosing the information the court must
permit the Crown an opportunity to determine
whether to allow the information to be released. If
the Crown does not consent to the release of the
information, the court will decide an appropriate
remedy.

POLICE AUTHORITY IN THE BC
MENTAL HEALTH ACT
Part 2 of 6
Mr. Richard Dolman
The following notes are from an Internet website under
development for the Justice Institute of BC to assist
police in handling a psychiatric crisis and to improve
understanding of mental illness. The project was
initiated by the BC Association of Chiefs of Police
Mental Health Committee, and was developed in
conjunction with the BC Ministry of Health and the
Inter-Ministry/Agency Working Committee for Care and
Support of Persons with Mental Disorder. Comments
and suggestions to the author are welcome at:
almond@direct.ca
When does the Mental Health Act (MHA) enable
police to apprehend? The Act in s.28(1) says police
“may apprehend and immediately take a person to a
physician for examination if satisfied from personal
observations, or information received, that the person:
a) is acting in a manner likely to endanger that person’s
own safety or the safety of others, and
b) is
apparently a person with a mental disorder.” No Feeney
warrant is required: the MHA is sufficient authority
for entry and apprehension1. The MHA does not require
any offence to be involved.
What is meant by “information received”? It means
police may use collateral information (received from
family, partner, friends, or observations by other
independent witnesses, etc.) in deciding whether to
intervene and apprehend the person. Collateral
information is needed, for example, when subject has
left the scene, is locked in a room, is deliberately
masking symptoms, is not talking, or a mental state is
obscured by intoxication, etc.
1

Volume 1 Issue 9
October 2001

See Volume 1 Issue 4 of this publication.

What is meant by “likely to endanger”? This does not
require actual or attempted physical danger to self or
others.
It is sufficient for police to find that
endangerment is likely to occur.
Does the MHA require police to arrest the person
who meets s.28(1) criteria? No, not by itself. The
Act provides authority to apprehend and transport in
custody to a hospital for medical examination. If
subject is unwilling, apprehension may include a
technical arrest. If an offence is involved, police may
have other powers to arrest the subject.
What if an offense is involved? Beyond the
hospitalization authority of the MHA, police have other
authority (e.g. Criminal Code, provincial statutes) to
take a mentally disordered offender to police lockup,
where he or she can have a psychiatric examination.
The court has several options with several outcomes
(detailed in Part 6). If a subject has committed a minor
offence or engaged in low-risk nuisance behaviour,
police have some alternatives to arresting the subject.
These “diversion” alternatives include, for example,
contacting the subject’s family or caregivers or taking
the subject to a hospital.
What is the police role at the hospital? Police need
to attend at the hospital until authorized medical staff
can take over custody officially and safely. If the
subject is unruly while waiting at the hospital, police
may need to remain in attendance and use statute or
common law authority to preserve peace and assist
hospital staff.
Which mental disorders does the MHA cover?
Diagnostic details do not appear in the Act. The main
criteria appear in the definitions of the Act. “Mental
disorder” is defined as “a disorder of the mind that

requires treatment and seriously impairs the person’s
ability a) to react appropriately to the person’s
environment, or b) to associate with others.”
(Treatment is defined as psychiatric treatment.
Therefore the Act aims at psychiatric disorders.
These disorders are controlled by psychiatric
medications. Examples are schizophrenia, bipolar, major
depression, or serious anxiety disorders). General
experience and instinct often help police decide if
subject’s behaviour is well beyond the normal range. If
police believe the main criteria indicate mental illness
(see underlined italics) but are not sure about the type
of disorder, they should transport the subject to
hospital and leave the diagnostic decisions to the

Volume 1 Issue 9
October 2001

physician.
What are the criteria used by the hospital
physician? The subject can be committed to
involuntary hospital treatment by a physician (and only
by a physician), based on the main criteria (underlined
above), and in s.22(3): to prevent the subject’s
substantial mental or physical deterioration, or for the
protection of the subject or others.
What are the other police roles under the MHA? In
addition to authorizing police apprehension as
described above, the Act authorizes police to
apprehend on medical certificates or by warrants. A
hospital can issue a Director’s Warrant (Form 21) or a
physician can issue a Medical Certificate (Form 4).
Anyone can apply (on Form 9) for a Judicial Warrant
(Form 10). Form 9 appears on pages 62-63 of the Guide
to the BC Mental Health Act. Copies can be used.
What about safety and conduct when intervening?
Being apprehended by uniformed police can be unduly
traumatic and counter-productive for a person in a
mental crisis. In low-risk calls, officers can try to
attend in plainclothes or in an unmarked car. However,
in high-risk cases, the police uniform and firmness may
help.
The best strategies include:
•

Safety first. Keep calm. Separate the subject
from anything dangerous. Get help and plan an
escape route if needed.

•

De-escalate the situation. Use an ERT negotiator
via phone if appropriate. In a direct-contact case,
speak slowly. Move slowly. Don’t crowd the subject;
be ready to step back and allow time to calm down.

•

Use normal eye contact but don’t stare. Sit side by
side, or astride a chair turned backward.

•

Don’t take rudeness personally. Be patient - the
subject may be having trouble understanding you
and processing answers. Be understanding of issues
even when you don’t necessarily agree.

Intervention should be respectful of the person’s
humanity. The subject did not ask to be mentally ill,
and may be finding communication very difficult. Be as
empathetic and supportive as circumstances permit. If
subject is depressed, offer to get help and encourage
realistic hopes (not false hopes). Be firm and
reassuring. Don’t argue or be judgmental about

2

symptoms etc. Promote a positive attitude toward
treatment. This will help prevent relapse.

NEXUS BETWEEN PROBATION
CONDITION & OFFENCE/
ACCUSED’S HISTORY NOT
REQUIRED
R. v. Kootenay 2000 ABCA 289

The accused plead guilty to a theft
of vehicle over $5000 and break and
enter of a retail clothing store
where property valued between
$15,000 to $20,000 was taken. As a
result the accused was sentenced to two months
consecutive to a sentence the accused was already
serving and placed on probation for a period of 18
months. The accused appealed the following condition
of the probation order:
“abstain absolutely from the use, possession, and
consumption of alcohol or any drugs forbidden under
the Controlled Drugs and Substances Act”

The accused’s appeal was based on the premise that
the consumption of alcohol or drugs neither played any
part in the commission of the offence nor was their any
evidence that the accused had or has problems with
alcohol or drugs. In dismissing the appeal, Alberta’s
highest court recognized that rehabilitation and
reintegration, the principle focus of probation, are
“forward looking purposes” designed “to influence the
offender’s future conduct” and “the conditions of a
probation order should not be limited or constrained by
requiring a nexus to the circumstances of the offence
or the offender’s past behaviour”. The probation
condition thus stands.
Complete case available at www.albertacourts.ab.ca.

UNDERCOVER OFFICER
ENTRAPS YOUTH AT ROCK
CONCERT

in possession of $30 worth of marihuana he had
purchased, intending to smoke it at the concert. Two
undercover police officers, dressed in Marilyn Manson
concert attire (white face makeup, black wigs)
approached the accused who was standing outside a
Harvey’s restaurant. One officer approached the
accused, made a comment that he was unable to find
any drugs in Hamilton, and asked if anyone knew where
he could “score some weed”. The accused asked how
much the officer was looking to which the officer
replied, “for a few joints…a dime”. While discussing
with his friends whether he should sell any marihuana,
“the officer continued to press for the sale”. The
accused told the officer to meet him in the washroom
of Harvey’s, sold the marihuana, and was arrested by
police. At the trial the accused testified he was hungry
and wanted to buy some food but did not have any
money. The accused’s application for a stay of
proceedings on the basis of abuse of process by
entrapment was dismissed and the accused was given a
conditional discharge. The accused appealed and the
Ontario Court of Appeal set aside the conviction and
entered a stay of proceedings.
The test for entrapment involves a two branch enquiry:
1.

Did the police act on a reasonable suspicion that an
offence was occurring when the police targeted
the area or individual?

2.

Did the police go beyond providing an opportunity
to commit the crime and actually induce the
commission of an offence?

Each branch stands alone and a finding of entrapment
can be sustained on the basis of either enquiry. In this
case the Court only felt it necessary to deal with the
second branch. In finding that the accused was
entrapped, the Court relied on the reasons of the trial
judge where she found:
•
•
•
•

R. v. J.S. (2001) 152 CCC (3d) 317 (OntCA)
The accused, a 14 year old young
offender at the time, had driven
with some friends to attend the
Marilyn Manson concert in Hamilton
at Copps Coliseum. The accused was

Volume 1 Issue 9
October 2001

•

the accused would not have sold marihuana without
the police approaching and importuning him
the accused was naive
the sale was not made for profit
the accused was uncertain how to respond to the
officer’s as evidenced by his conferring with his
friends
the accused’s concern for his safety because the
officers were much bigger, stronger, heavier, and
older than himself

3

LIFE SENTENCE UNFIT FOR
BRUTAL STABBING

R. v. Brown (2001) 152 CCC (3d) 26 (NfldCA)
The accused plead guilty to
attempted murder after having
broke into the victim’s residence
armed with a knife and stabbing her
repeatedly. The victim received 22
stab wounds to the body and extensive trauma to her
facial and head area. She underwent surgery to repair
her liver, bowels, bladder and her spleen was removed.
The accused, who was 20 years old at the time with no
previous criminal record, and the victim had been
involved in a 3 year relationship and were separated
just before the birth of their daughter. The trial
judge imposed a life sentence and the accused appealed
that sentence.
The Newfoundland Court of Appeal found the life
sentence too severe and instead substituted a 14-year
sentence. In their reasoning the Court found a life
sentence is generally justified only in cases of “stark
horror” or in cases where the offender has a record of
violent behaviour showing no signs of remorse and a
likelihood of future violence. In assessing whether this
was a circumstance of “stark horror” the Court
recognized “stark horror cases usually involve
exceptional acts of brutality or cruelty and are
considered more serious when premeditated and the
acts needlessly repeated”. Although the trial judge
accurately
described
the
accused’s
act
as
“horrendous”, the Appeal Court found there was an
absence of “an intent or attempt to inflict pain, fright
or panic-suffering tantamount to torture-solely for his
or her gratification or for some other perverse
reason”. Steele J.A. for a unanimous Court, at p.47:
Without a doubt the commission of the offence by
the [accused] in this case was shocking, but it is not
at that rare level that cries out for the maximum
punishment of life imprisonment. Simply expressed,
the circumstances of the offence are not such as to
explain or vindicate a sentence of life imprisonment.

And further at p.55:
In summary, while recognizing that the commission
of the offence was cold-blooded and merciless,
nevertheless, it falls short of inclusion in the most
notorious group that is characterized as cases of
stark horror-“unusual features of brutality or

Volume 1 Issue 9
October 2001

cruelty”-that clearly indicate a disturbed personality
and a continuing danger.

On the second branch, whether the accused was a
future danger, the Court found there was an absence
of “cogent evidence” as to the future dangerousness of
the accused and therefore a life sentence was not
proper on this ground either.

COLLECTING DEBT THROUGH
CRIMINAL PROCESS RESULTS
IN STAY
R. v. Thore, 2001 BCSC 507
The victim of a mischief filed a
complaint with the police alleging
that the accused broke the
windshield of the victim’s van by
banging on it. The following day the
accused spoke to the victim, asked her not to contact
the police, and explained he would pay to replace the
windshield. The cost for the repair however, exceeded
what was anticipated. The victim told the police
investigator that as long as the windshield was repaired
she would not press charges. Furthermore, the police
officer contacted the accused and advised him that the
accused should come to an agreement with the victim or
the accused would be charged. The officer also advised
the victim to continue pressuring the accused to pay for
the damage, but accused was unable to acquire the
necessary funds to pay the $1500 repair. The Court
concluded, based on the police officer’s actions and the
testimony of the victim, “that restitution was really the
only goal of the prosecution”. Where the collection of a
civil debt is the sole purpose of a criminal prosecution, a
court may find that charges are an abuse of process. In
ordering a judicial stay of proceedings, Justice Melnick
recognized the societal interest is ensuring a vandal is
punished does not outweigh the societal interest in
ensuring that the criminal process is not used as a means
to collect private debts.
Complete case available at www.courts.gov.bc.ca.
For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

4