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.

WE’RE ONLINE
“In Service: 10-8” is available online in PDF format.
Check out our website at www.jibc.bc.ca. All past issues
are posted in publication date order.

B&E REQUIRES CRIMINAL
INTENT PRIOR TO ENTRY
R. v. McLellan, 2001 BCCA 98
The BCCA has ruled that the intent
to commit an indictable offence
must precede entry for the offence
of break and enter to be made out.
In this case the accused rented one
bedroom of the ground floor of a house. Another
person rented a second bedroom on the same floor.
Both shared a common area that included a kitchen and
living area but neither had any right of access to the
other’s bedroom. The accused, who had returned home
with his girlfriend’s young son, found he had been
locked out of his house because he did not have his
house keys. Finding his roommate’s window slightly ajar,
the accused opened it further and boosted his
girlfriend’s young son through the window to open the
front door from inside. After obtaining some property
from the common area, the accused entered his
roommate’s bedroom and took his roommate’s leather
jacket and Walkman cassette player. The accused was
convicted of break and enter at trial. On appeal, the
BCCA overturned the accused’s conviction and
substituted a conviction for the lesser-included
offence of theft. The appellate court gave the accused
the benefit of the doubt when he contended “that he
entered the room only to close the window opened
earlier and formed the intent to steal the objects only
after he was inside [his roommates room]”. The BCCA
concluded, “if [the accused] entered the bedroom with
the intent to close the window and decided to steal the
items later, after he entered the room, …he lacked the
necessary criminal intent at the point of entry”.
Complete case available at www.courts.gov.bc.ca.

Volume 1 Issue 8
September 2001

MENTAL ILLNESS AND POLICE
INTERVENTION
Part 1 of 6
Mr. Richard Dolman
When police intervene in a psychiatric crisis, their
primary role is to control immediate safety problems,
to recognize mental disorder, and to decide whether
medical attention is needed. It's a demanding role with
a growing caseload. To enhance their performance of
this role, officers need access to practical information.
Many police officers are able to act effectively
because they have extra knowledge and experience in
handling mental health calls. Some interventions also
involve psychiatric nurses and other trained front-line
workers. Much can be learned from all these
experienced people to reduce stress and danger for
everyone concerned and to help police interventions
become a more positive step in treatment.
The Justice Institute (JI) Police Academy is taking
steps to help BC police and other front-line workers
respond better to the challenges of psychiatric crisis.
Practical advice and information drawn from many
sources will appear in coming months in a new section of
the JI website and will be open to the public.
The JI project is a response to growing demands on
police to intervene more effectively in mental health
emergencies. This is an expanding need in urban
centers with our rising concentrations of troubled and
alienated people. It's challenging everywhere. Mentally
ill persons lose their grip on reality, become the
subjects of interventions - and then they may
cooperate and welcome hospitalization, or they may
not. Police get called when endangerment becomes an
issue. This can arise from psychiatric burdens like
being unmedicated and unstable, unable to communicate
effectively, or in a psychotic episode. The subject may
be suicidal, intoxicated, or violent. Also safety can be
undermined by the systemic problems of urban life and
by imperfect and underfunded community supports,
which generate revolving door cases - in and out of

hospital or jail, vulnerable to alienation, stigma, drugs
and alcohol or criminal influences.
Police work can be highly preventive by intervening to
rescue such people from untreated mental disorders
where they are more likely than the general population
to become dangerous, violent, or commit offenses.
People with treated mental disorders are generally as
harmless as anyone else, but they can be vulnerable to
self-harm. Treatment failure or severe stress can
cause them to decompensate. Or they may start
feeling better, go off medications abruptly, and get
worse very rapidly.
Such cases often require
sympathetic help from caseworkers or police to reenter hospital, either voluntarily or involuntarily.
Whether their psychiatric disorders are treated or
untreated, most people with serious mental illness also
face other factors that can make symptoms disabling
and unsafe: not being properly stabilized; inadequate
transitional care after hospital discharge; medications
that provide much-improved control of symptoms,
usually with fewer side effects, but do not cure;
confusing messages from civil rights advocates
demonizing involuntary treatment; and a few voices
opposed to psychiatry or pills in general.
When a crisis occurs, it is often police who get the
first call for help. Therefore many police see mentally
ill people only at their worst. A cold hard response is
not the ideal answer. Intervention should be seen as an
opportunity and a need to help these people toward
recovery. Police can help to make the community a
safer, more tolerant home for people with mental
disorders. They can make care giving and management
easier for others in the trenches: families, friends,
front-line workers, and health professionals.

Information Project
To enhance police understanding of mental disorders
and to promote safer and better interventions, an
information feature is under development for the
Justice Institute's internet website. It is expected to
open later this year. The website project will focus on
police work and related practical mental health topics.
The information will also be open to the public so they
can better understand the challenges when
intervention is needed.
Selected notes from the
project will run as a series of articles in coming issues
of the "In Service: 10-8" newsletter.

Volume 1 Issue 8
September 2001

The project was initiated by the Mental Health
Committee of the BC Association of Chiefs of Police,
chaired by RCMP Chief Superintendent Jamie Graham
(Surrey). Project editor Richard Dolman is a founding
member
of
Supt.
Graham's
committee,
a
researcher/writer on mental health issues, and a
provincial director of the BC Schizophrenia Society.
The project is supported by a Ministry of Health
development grant and by the Justice Institute Police
Academy. It is coordinated by an inter-agency editorial
committee chaired by Norm Brown of the Ministry of
Attorney General - Police Services. The JI is
represented on this group by Steve Watt, Director of
the JI Police Academy.

CROOKS WHO FORCE ENTRY TO
ESCAPE PURSUERS DO NOT
COMMIT B&E
R. v. Schizgal, 2001 BCCA 238
The accused was charged with 2
counts of break and enter and
commit mischief. The accused
testified that he and a friend were
selling stolen property to persons
who were unknown to the accused. Something went
wrong and 3-4 males began to chase the accused and his
friend. The accused testified he was afraid and
concerned about being caught by his pursuers. The
accused knocked on the sliding patio door of an
apartment, asked to be let in, told the occupant he was
being chased, but was refused entry. The accused left
and went to another apartment where he forced in the
locked front door causing damage to the surrounding
door frame ($400). The accused walked through the
apartment, unlocked the patio door, went out onto the
balcony, looked into the courtyard, and turned around to
retrace his steps back to the front door. As he passed
the female occupant, the accused made a gesture that
he was not going to hurt her. A second apartment was
entered when the accused forced the door, splintering
the frame ($800). The accused entered saying
“Somebody’s chasing me”. The female occupant told the
accused to leave the apartment. The accused ran into
the living room, went to the patio doors, looked out, and
waved his arms frantically. When the occupant picked up
the phone to call the police, the accused ran out the
door and down the stairs.

2

Police were dispatched to the area and arrested the
accused. At trial, the accused admitted to damaging the
doors of the apartments but testified “his purpose was
to attract attention and look into the courtyard to see
what was going on”. In overturning the accused’s
conviction, the BCCA found that the accused broke and
entered the apartments but break and enter in itself
does not amount to an offence under s.348(1)(b) Criminal
Code:
The [accused] did not break and enter the premises and
commit an indictable offence therein, namely, mischief. His
actions confirm that his intent was to break into the
premises in question, but not for the purpose of
committing an indictable offence. He was afraid and
attempting to escape his pursuers. He is not guilty of the
offence as charged.

The Court substituted a guilty verdict of mischief
(damage at point of entry) on both break and enter
counts. Interestingly enough, the Court was of the
opinion that the evidence would support a charge of
forcible entry under s.72(1) Criminal Code however, the
wording of the charges (B&E) did not embrace s.72(1) as
an included offence.
Complete case available at www.courts.gov.bc.ca.

ODOUR SEARCH
UNREASONABLE
R. v. Richardson, 2001 BCCA 260

knapsack. The accused told the officer he did not give
police permission to look into the bags. The officer told
the accused police were legally entitled to open the bags
and when the accused continued to object, the officer
handcuffed the accused on the basis he was obstructing
the search and placed him in the rear of a police cruiser.
The officer located 11 plastic oven bags of marihuana
and $6,000 in cash in the gym bag. After finding the
items, the officer arrested the accused for possession
of a narcotic for the purpose of trafficking. At trial,
the Court ruled the search to be unreasonable because
the officer lacked reasonable grounds for the search.
The Court cited the opinion of the Ontario Court of
Appeal in R. v. Polashek1 where that Court held:
The presence of odour alone did not provide
reasonable grounds to believe that the occupant was
committing an offence. The sense of smell is highly
subjective, and to authorize an arrest solely on that
basis puts an unreviewable discretion in the hands of
the officer. By their nature, smells are transitory and
thus largely incapable of objective verification.

Although finding a violation, the evidence was
nonetheless admitted as its inclusion would not bring the
administration of justice into disrepute. The accused
appealed the conviction and in a 2-1 decision the BCCA
upheld the admissibility of the evidence, albeit obtained
from a Charter infringement. Two justices held the trial
judge did not make an unreasonable finding in admitting
the evidence, noting that the judge may have decided
either way on whether to admit the evidence or not:
This matter is one where the aggressive decision of
the officer to search the appellant upon smelling
marihuana, and handcuffing him in the course of a
road check could have led the trial judge to exclude
the evidence.

At approximately 1:30 am the
accused and two passengers were
stopped in a traffic roadblock to
detect impaired drivers and persons
driving without licences or insurance.
During the stop the police detected a strong odour of
marihuana emanating from the vehicle. As a result of
this olfactory observation, police requested the
occupants exit the vehicle and advised them police
intended on searching their persons. The accused
(driver) produced a small metal box from his pocket
containing a small amount of marihuana, a vial of hashish
oil, and another unknown substance. Police then searched
the interior of the vehicle in an effort to find the
source of the odour but nothing of significance was
located.
Because of the continued strong odour of marihuana,
police asked the accused to open the trunk. The accused
complied and police located a large green gym bag and a

Volume 1 Issue 8
September 2001

On the other hand, the strong smell of marihuana
from the vehicle was enough to put the officer on his
enquiry and he might have at least detained the
vehicle while applying for a warrant. The production
by the [accused] of a quantity of hashish oil
understandably and quite naturally led the officer to
think that this was a case that should be investigated
further. The officer obviously made a bad choice in
proceeding as he did without seeking a warrant but
the events within this incident flowed naturally from
the wrong decision to search the [accused] to the
ultimate discovery of a large quantity of cash and
marijuana in the bag that was in the trunk of the
[accused’s] vehicle.

1

(1999) 134 C.C.C. (3d) 187 (Ont.C.A.)

3

Justice Hall, in dissent, although holding the evidence
from the trunk should have been excluded, made the
following comments:
…[I]n this case, the police officer proposed to search
the trunk area of the vehicle. Such a search could
have been appropriate as a search incidental to
arrest…However, that was not the basis upon which
the officer was proceeding. (references omitted &
emphasis added)

Complete case available at www.courts.gov.bc.ca.

with the demand should be excluded as a result of that
violation.
In overturning the accused’s conviction and entering an
acquittal, the New Brunswick Court of Appeal found
the accused’s s.10(b) right to counsel had been violated
when the accused (who had clearly and unequivocally
expressed a desire to contact counsel at the time of
arrest) was not informed that police were obligated to
“hold off” from eliciting evidence until the accused had
been provided a reasonable opportunity to exercise his
right, at p.248:

S.10 VIOLATION RESULTS IN
EXCLUSION OF REFUSAL TO
PROVIDE BREATH SAMPLE

The [police] duty to hold off until the detainee has
had a reasonable opportunity to exercise his or her
right to counsel means that the [police] must refrain
from compelling the detainee to make a decision or
participate in a process which would ultimately have
an adverse effect in the conduct of an eventual
trial….This would include an obligation to hold off
from acting upon any statement of intention with
respect to any breathalyser demand until the advice
required by Prosper2 is provided and the detainee
chooses not to pursue the exercise of the right to
counsel.

R. v. Russell (2000) 150 CCC (3d) 243 (NBCA)

The accused was stopped by police
and was requested to provide a
breath sample into a roadsidescreening device. The accused
failed the test, was arrested,
informed of his right to counsel, and given the breath
demand to provide samples at the police station for
analysis. After expressing his desire to contact
counsel the accused was afforded an opportunity at
the police station. The accused was provided a list of
lawyers (with telephone numbers) and access to a
private telephone. The accused asked the officer to
place the telephone calls on accused’s behalf. The
officer attempted to contact two lawyers picked by
the accused but was unsuccessful. The accused then
asked the arresting officer and the breathalyzer
technician for advice on whether he should comply with
the demand. On three occasions the officers advised
the accused police would not provide legal advice and
that the accused should continue his attempts in
contacting counsel. Although not expressly waiving his
right to counsel, the accused did not heed the officer’s
advice to make further attempts to contact counsel
and he advised the arresting officer that he would not
comply with the demand. The accused was not informed
that he had a reasonable opportunity to contact
counsel or that the officer would not renew the
demand during the time the accused attempted to
contact counsel. Instead, the arresting officer told the
accused he would be charged with refusal. Following a
final demand for breath samples, the accused refused.
The accused argued that the police had violated his
s.10(b) right to counsel and that the refusal to comply

Volume 1 Issue 8
September 2001

In this case, the Court found the accused asserted a
desire to contact counsel and was duly diligent in
exercising that right. This being the case, the burden
of establishing waiver rested with the Crown. Where
an accused changes their mind and no longer wishes to
contact counsel, the police are obligated to remind the
accused of their reasonable opportunity to contact
counsel. The Court held the accused (when he informed
the arresting officer that he was refusing to provide a
sample) was suggesting he had changed his mind and no
longer wished to speak to counsel. The police failed in
their duty by not again advising the accused of his
right to a reasonable opportunity.

Note-able Quote

We are firm in our conviction that the law enforcement
officers of this country ought to have the support of
the courts. If they do not get support from that
quarter, I do not know whence it will come3.Ont.C.A.
C.J.O. Gale.
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.
2
3

(1994) 92 C.C.C. (3d) 353 (S.C.C.)
R. v. Dilivio [1970] O.J. No. 928 (Ont.C.A.)

4